ELADIO VIERNES y ILDEFONSO is convicted of three counts of rape. He was sentenced to death by the Regional Trial Court of Lipa City. The assailed decision convicted appellant of two counts of the same crime.
ELADIO VIERNES y ILDEFONSO is convicted of three counts of rape. He was sentenced to death by the Regional Trial Court of Lipa City. The assailed decision convicted appellant of two counts of the same crime.
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ELADIO VIERNES y ILDEFONSO is convicted of three counts of rape. He was sentenced to death by the Regional Trial Court of Lipa City. The assailed decision convicted appellant of two counts of the same crime.
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Attribution Non-Commercial (BY-NC)
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PEOPLE OF THE PHILIPPINES, appellee, vs. ELADIO VIERNES y ILDEFONSO, appellant. D E C I S I O N PANGANIBAN, J.: Under the Rules of Court, a judgment of conviction in a criminal prosecution may be modified only upon motion of the accused. As a rule, the prosecution is prohibited from seeking, and the trial court from granting, a more severe penalty than that imposed in the original decision. This is especially true in a case in which the new and amended penalty imposed is death. The Case Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 Order of the Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97 and 0534-97. The assailed Decision convicted appellant of two counts of rape and one count of attempted rape. It disposed as follows: WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and sentences him, as follows: 1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit; 2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of this suit; and 3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit. On the other hand, the assailed Order increased the penalties as follows: WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659, and in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and sentences him, as follows: 1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify CATHERINE LINATOC in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit; 2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00 and to pay the costs of this suit; and 3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral damages pursuant to Article 2219 (3) of the Civil Code, the amount of P5,000.00, as exemplary damages, pursuant to Article 2229 of the same Code and the costs of this suit. Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc (assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor Danilo S. Sandoval. The Complaint in Criminal Case No. 0532-97 charged appellant with rape committed as follows: That on or about the 29 th day of September, 1996 at about 10:00 oclock in the morning at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, did then and there willfully, unlawfully and feloniously, by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor below 12 years old, against her will and consent to her damage and prejudice in such amount as may be awarded to her under the provision of the Civil Code. The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape: That on or about the 18th day of August 1997 at about 12:00 oclock noon, at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, did then and there wilfully, unlawfully and feloniously, by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor of 12 years old against her will and consent to her damage and prejudice in such amount as may be awarded to her under provisions of the Civil Code. Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape: That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, by means of force and intimidation and with lewd design pursuant to his carnal desire, did then and there willfully, unlawfully and feloniously commence the commission of the felony of rape directly by overt acts against the undersigned complainant who is a minor below 12 years old, by then and there undressing her and going on top of her with his exposed private organ but did not perform all the acts of execution which should have produced the said felony because the undersigned offended party resisted. Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the same court. Later, all the cases were consolidated in Branch 12. On arraignment, appellant pleaded not guilty. After trial in due course, the lower court rendered the assailed Decision. In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the imposed penalties be increased pursuant to Republic Act (RA) No. 7659. The RTC granted the Motion via the assailed Order. The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General presents the following narration of facts: Catherine Linatoc stood quietly by the door of the toilet of appellants her mothers common- law husband house. Her skirts hemlines were slowly falling to her knees vainly covering the panty that were pulled down mid-way her lower legs. This was the third of a series of dismaying sex that she and appellant had been through. Like the others before this one, there was by appellant much pulling, shoving and forcible grasping of her hands, thus rendering her immobile for three minutes or so. The third rape happened in appellants house in Tibig, Lipa City, around noontime of August 18, 1997. Appellant then bidded [sic] the two brothers and a step-brother of Catherine Linatoc to clean the his tricycle, which was parked on the side of the street across his house. They followed his order. Appellant also instructed Catherine Linatoc to fetch water for the house toilet. She obliged, returning with two pails of it. She deposited them by the door of the toilet. Turning about, Catherine Linatoc was surprised to find appellant behind her. In quick succession, appellant pushed her to the wall, pulled her skirts up, drag her panty mid-way her lower leg, and rushed his own pants down. Grasping her hands tightly with one hand, appellant began inserting his penis into her vagina. She resisted to no avail. His penis established a comfortable slide into and out of her [organ], as the pace quickened for about three minutes. The gyration was furious. After appellant spurted out, he backed off and left saying nothing. Frightened and crying, Catherine Linatoc went to her great-grandmothers abode in San Guillermo, Lipa City. She reported the incident to this elder, and recounted some more. Catherine Linatoc told her great-grandmother of two other acts of sexual abuse by appellant. The first one, she narrated, happened on September 29, 1996, about ten in the morning[;] and the second, on March 1997 around noon-time. The first rape happened on September 29, 1996 in appellants house. Catherine Linatoc was on the ground floor of the house when so suddenly appellant sprung from wherever he was, grabbed and carried her to the second floor. The second floor was just three steps from the ground floor. He then undressed her, taking off her sando, skirt and panty. He undressed himself too, and then floored both their bodies, [his] on top of her. He caressed her breasts and started inserting his penis into her vagina. Appellant held her hands tightly and fought off her struggle. There was push and pull for about three minutes, then appellant came through. Appellant dressed up, and before walking away, apologized to her. It would be the first and last rape, he said. There was soon the second sexual abuse. In March 1997, about noontime, using the same strategy as he did in the [first] rape, appellant unburdened himself on Catherine Linatoc. From nowhere, appellant appeared. He dragged her to the second floor where he undressed her and himself. He mightily threw her to the floor, his sweaty body covering hers. Appellant engaged in the now familiar gyration once again. This time, however his penis landed on the thighs of the victim as insertion, because of her struggle and vaginas virginal qualities, became frustratingly difficult. Between her thighs appellant thrusted his penis. He satisfied himself just the same. The great-grandmother was helpless to remedy the abuse done to Catherine Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also arrived. Catherine Linatoc had her medico-legal examination with these results.: x x x lacerated hymen on the 3:00 and 9:00 oclock positions with small amounts of whitish discharge. The medico-legal examination was performed by Dr. Helen S. Dy. The present criminal complaints against appellant were thereafter filed. Version of the Defense Appellant denies the charges against him. Claiming to have been elsewhere at the time of the commission of the alleged crimes, he submits the following counterstatement of the facts: 1) ELADIO, at the lower court, stated that he is the common law husband of Lina de la Cruz- Linatoc (mother of the alleged victim Catherine Linatoc). He is a security guard and at the same time, a tricycle driver. On September 29, 1996 he was living with Lina, together with Catherine, his two sons and other relatives. On September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of her great grandmother and stayed therein even beyond September 29, 1996. Therefore, it is impossible for him (ELADIO) to have attacked Catherine sexually on September 29, 1996. It is not true that he attempted to rape Catherine in March of 1997 because he was on duty at that time. Their company logbook will bear witness thereto. (Exhibit 2, Original Records) On August 18, 1997 it is not true that he raped Catherine since he was plying his tricyle then. (TSN, pp. 2-13, December 11, 1997; and pp. 2-22, January 8, 1998) 2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of ELADIO that Catherine was no longer in their house on September 29, 1996 and that ELADIO could not have abused Catherine sexually. Catherines charge for March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998). x x x x x x x x x D. Sur-Rebuttal Evidence. ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case. Ruling of the Trial Court The court a quo held that the testimony of Catherine Linatoc -- both on direct and on cross- examination -- was clear, positive and steadfast. Corroborated by the medicolegal examination conducted on her, it was replete with details that jibed on material points. The prosecution successfully proved that she was the daughter of appellants common-law wife and that, at the time of the crime, she was 12 years old. The declarations of complainant were accorded full faith and credence on the theory that she would not publicly acknowledge the defilement of her virtue or subject herself to public humiliation, if her purpose was not to obtain justice for the wrong committed. There is no evidence that she was a woman of loose morals or that she had any ill motive to falsely accuse appellant. On the other hand, appellants denial and alibi were unsubstantiated and self-serving; hence, they deserve no weight in law. They cannot stand against Catherines positive testimony. In the assailed Order, the trial court noted that the prosecutions Motion was unopposed. It ruled that the increase in the penalty did not place appellant in double jeopardy. Hence, this appeal. The Issues In his Brief, appellant raises this sole alleged error: The lower court has committed an error in convicting the accused-appellant of the crimes charged and on meting out on him the supreme penalty of death, more particularly in Criminal Cases Nos. 0532-97 and 0534-97. An appeal from a criminal conviction, especially one involving the death penalty, throws the whole case open for review. Thus, it becomes the duty of the reviewing court to correct any error in the appealed judgment, whether or not it is made the subject of an assignment of error. In this light, the Court believes that a second issue needs to be taken up, namely: Whether the trial court erred in increasing the penalties via the assailed Order. This Courts Ruling The trial court was correct in convicting appellant in accordance with the challenged Decision, but was wrong in imposing the new penalties through the assailed Order. First Issue: Appellants Culpability After a thorough review of the pleadings, the transcripts of stenographic notes and other records of the case, we are convinced that the court a quo did not err in giving credence to the testimonies of the victim and the other prosecution witnesses. The testimony of private complainant, detailing how she was abused by appellant on two separate occasions and how he tried to rape her once more, was clear and convincing. We quote at length: Q While you were in your house on that date, September 29, 1996, 10:00 oclock in the morning, do you remember of any unusual incident that transpired if any? A Yes, sir. Q What was that unusual incident that transpired? A After my mother left, I was pulled sir. Q By whom, who pulled you? A My step father, sir. Q Where were you brought, towards what direction? A Towards the second floor of our house and to the place where we sleep, sir. Q By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29, 1996, what kind of house is that? A It is made of Sawali, sir. Q How about the flooring, how many floors does it have? A Three (3) steps sir. Q What do you mean by three (3) steps? A Our stairs is made of three (3) steps, sir. Court: From the ground floor? A Yes, sir. Q What is located after going this stairs composed of three (3) steps? A That is the place where we sleep sir. Q After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio Viernes do to you after reaching that upper portion of your house, if he did anything? Atty. Dimaandal Leading your Honor. Court Answer. A He undressed me sir. Q What were you wearing that Eladio Viernes took of[f] from your body? A I was wearing a skirt which was my uniform sir. Q What else I[f] any were taken of[f] from your body by Eladio Viernes? A My blouse, sando and my skirt and my panty sir. Q After Eladio Viernes took of[f] your clothing, after removing your clothing what did Eladio Viernes do on your body? A He placed himself on top of me. Q When Eladio Viernes placed himself on top of you, what was he wearing if any? A None sir. Q By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at that time? A He was wearing pants, sir. Q You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was already naked, what did he do with hi[s] pants before he went on top of you? A He mashed [m]y breast sir. Q What else did he do [to] you aside from mashing your breast? A He inserted his penis into my vagina. Q By the way, while he was mashing your breast, what were you doing if you did anything? A I was fighting him back sir. Q What did Eladio Viernes do when you fought him back while he was mashing your breast? A He was slapping me sir. Q When he inserted his penis into your vagina, what did you feel? A Painful, sir. Q Was Eladio Viernes able to actually insert his penis[?] Atty. Dimaandal Leading your honor. Q After Eladio Viernes inserted his private organ into your private organ, what else did he do if anything more? A He did pumping motion, sir. Q For how long did he do this pumping motion, while his penis was inside your vagina? A About three (3) minutes sir. Q After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside your vagina, what else did he do if he did anything more? A He removed his private organ sir. We also quote the testimony of the victim regarding appellants attempt to rape her: Q When was the second time, after September 26, 1996? A In May 1997 but I do not remember the exact date sir. Q Are you sure about the date? Atty. Dimaandal That is the answer of the witness. Prosecutor Thats why I am asking, are you sure about the date? A May 19, 1997 sir. Q By the way, in [the] second incident [where] Eladio Viernes according to you raped you again, where did this happen? A At Barangay Tibig, Lipa City. Q In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes? A In the upper portion of our house at the place where we are sleeping sir. Q The same place where the second rape was committed? A Yes, sir. Q Around what time did this happen, this second rape happened? Atty. Dimaandal We make it of record that the witness cannot answer. Prosecutor The witness is thinking . . . A Noontime sir. Q How did this happen? A He again pulled me sir. Q By the way on that second occasion, where was your mother? A She was working sir. Q You said that you were again pulled, where were you brought by Eladio Viernes at the same time around? A The upper portion of our house and at the place where we were sleeping sir. Q After you were pulled by Eladio Viernes, what did Eladio Viernes do to you? A He undressed me sir. Q What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that same occasion? A I was wearing a skirt sir. Q After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything? A He again placed himself on top of me sir. Q What was he wearing he placed himself on top of you if he was wearing anything? A He was wearing pants sir. Q When he placed himself on top of you, where was his pants? A He removed pants sir. Q When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second time around? A He again mashed my breast sir. Q What did you do when Eladio Viernes again mashed your breast? A I was fighting him back sir. Q What else did he do aside from mashing your breast, what did Eladio Viernes do to you? A He was inserting his penis into my vagina sir. Q When Eladio Viernes was inserting his penis into your vagina, what did you do? A I was struggling sir. Q When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your vagina? A It was not inserted sir. Q What did Eladio Viernes do when he failed to insert his penis into your vagina? A He just placed it between my thighs sir. Q After placing his penis between your thighs, what else did Eladio Viernes do if he did anything? Atty. Dimaandal May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there was no vagina [sic]. Q You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs? Atty. Dimaandal Leading Court Answer. Interpreter Witness pointing to the inner portion of her two thighs Q What did Viernes do after he put his penis between the inner portion of your two thighs? A [H]e placed his penis between my thighs and he again did the pumping motion sir. Pertinent portions of the testimony of complainant regarding her second defilement in the hands of appellant read as follows: Q Miss Witness, on August 18, 1997 around 12:00 noon where were you? A I was at home sir. Q What were you doing? A I just arrived from school sir. Q You said that you were in your house, where was this house located on that date, August 18, 1997? A At Barangay Tibig sir. Q You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa City on August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody there? A My step father sir. Q Meaning Eladio Viernes? A Yes sir. Q Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if he did anything upon seeing him or meeting you? A He instructed our companions in the house to clean the motor tricycle sir. Q After instructing your companions in your house to clean the motor tricycle, what else did Eladio Viernes do, if he did anything more? A He asked me to fetch two (2) containers of water sir. Q By the way, these your companions of your house, [sic] who where given the instruction by Eladio Viernes to clean the motor tricycle, who are these companions [sic] of your house? A My two brothers and one step brother, sir. Q How old were these two brothers of yours and your one step brother who were given the instruction by Eladio Viernes to clean the motor tricycle? A My step brother was 12 years old; my two brothers were six and 5 years old sir. Q How far was this tricycle from your house? A Near the street sir. Q Around how many meters if you can calculate was this tricycle from your house or can you point distance from the place where you are sitting now to any place inside the court room? Interpreter Witness pointing to the railings inside the Court room as their house and the witness pointed to the western wall of the court room as the place where the tricycle was to be around 7 meters sir. Q What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving the instruction from your step father Eladio Viernes to clean the motor tricycle? A They followed the instruction of my step father to clean the tricycle sir. Q How about you when you were instructed by your step father to fetch two (2) containers of water, what did you do? A I brought the water near the comfort room sir. Q After you brought the two (2) containers of water to the place were you said a while ago, what did Eladio Viernes do to you if he did anything? A He followed me sir. Q After Eladio Viernes followed you, what did he do [to] you if he did anything? A I was frightened sir. Q Why? Atty. Dimaandal Not responsive your honor. I move to strike out the answer of the witness. Court Continue. Q Why did you get frightened? A Because I felt that he will repeat the same thing sir. Q What do you mean repeat the same thing? A He will again repeat raping me sir. Q When you got frightened, what did you do? A I tried to struggle sir. Q Why did you struggle, what was Eladio Viernes doing [to] you? A He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me from going out sir. Q What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the comfort room? A I could not go out [o]f the comfort room because I was held by my step father sir. Q After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more? A He pulled down my panty sir. Q Up to what portion was that panty of yours pulled down? Interpreter Witness pointing to her ankle Q After Eladio Viernes pulled down your panty up to your ankle, what did he do to you? A He was inserting his penis into my vagina, sir. Q What was your position in relation to Eladio Viernes when he was inserting his penis into your vagina? A I was standing sir. Q How about Eladio Viernes, where was he in relation to you while he was inserting his penis into your vagina? A He was at my back sir. Q What happened to this effort of Eladio Viernes in trying to insert his private organ into your private organ? A It was inserted sir. Q You said that you were standing, what was the form or what was the position of your body aside from the fact that you were standing when Eladio Viernes was able to insert his penis into your vagina while he was at your back? A I was standing and I was struggling sir. Q When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of your body aside from the fact that you were standing? A I was standing with my knees bent sir. Q After Eladio Viernes was able to insert his penis into your vagina while you are in a standing position, how long was his penis inside your vagina? A About three (3) minutes sir. Catherine impressed the trial court as a decent woman [who has] not been shown to be of loose morals or one who goes out with different men any time of the day or night. A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner -- and remains consistent -- is a credible witness. It is well-entrenched that the trial court is in the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude on the stand. In the absence of any showing that its assessment is flawed, an appellate tribunal is bound by it. Despite the tender age of complainant, her accounts on direct and cross-examination were replete with details that jibed on material points. Considering her young age, it would have been highly improbable for her to fabricate a charge so humiliating to her and her family, had she not been truly subjected to the painful experience of sexual abuse. The moral ascendancy of appellant as the common-law husband of complainants mother takes the place of force and intimidation as an element of rape, although the presence of such element is apparent from Catherines testimony. Alibi and Corroboration Appellant denies having raped Catherine on September 29, 1996, claiming she was at her grandmothers house in San Guillermo, while he was outside his house digging a toilet pit. Allegedly, in March 1997, he was on duty as a security guard at the Smart Tower; and on August 18, 1997, he was busy the whole day plying his tricycle route. The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence that deserve no weight in law. They cannot be given greater evidentiary value over a credible witness testimony on affirmative matters. Except for Lina Linatocs corroboration, the only evidence supporting the alibi and denial of appellant is his own say-so. And Lina happens to be his common-law wife; thus, her testimony is necessarily suspect and cannot prevail over the testimonies of more credible witnesses. Negative testimony cannot prevail over the offended partys positive identification of the accused as her rapist. Finally, for alibi to prosper, it must be shown that the accused was in another place at the time the crime was committed, and that it would have been physically impossible for him to be at the scene of the crime at the time it was committed. Such physical impossibility was not proven in the present case. The Smart Tower where appellant worked as a security guard was located also in Barangay Tibig, Lipa City, and was only a thirty-minute walk from his house. The tricycle station, on the other hand, was only 1000 meters away. Note that he had a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence. Attempt to Settle the Case Appellant strongly denies the prosecutions assertion that he attempted to settle the case with complainants family. We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated November 25, 1997 -- addressed to Orlando and Catherine Linatoc, signed by appellant and delivered by Lina Linatoc -- was admissible evidence against appellant. Perusal of the letter reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a promise of an additional P100,000 in exchange for dropping the charges against him. Under Section 27, Rule 130 of the Rules of Court, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. Voluntary Surrender Appellant pleads for leniency on account of his alleged voluntary surrender. We disagree. The act of surrender must be spontaneous, accompanied by an acknowledgment of guilt, or an intention to save the authorities the trouble and the expense that search and capture would require. Going to the police station to clear his name does not show any intent of appellant to surrender unconditionally to the authorities. Medicolegal Officers Testimony Appellant avers that the medicolegal officer who examined complainant admitted being unsure of her findings. We disagree with the assessment by appellant of the testimony of the medicolegal officer. However, even if we discount the testimony of the latter, complainants testimony by itself can sustain the formers conviction. Medical examination is not an indispensable requirement, and its absence does not affect the verdict of conviction, if sufficient evidence is presented to prove the crime charged. When a rape complainant, especially one of tender age like Catherine, says that she has been raped, she in effect says all that is necessary to show that she has indeed been raped. Civil Indemnity and Moral Damages The Solicitor General takes issue with the damages awarded by the RTC. In the assailed Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in moral damages and P5,000 in exemplary damages for every count of consummated rape; and P25,000 in civil indemnity for the attempted rape. Recent jurisprudence has increased the indemnification for the victim in a case of consummated rape to P75,000 if the crime was committed with, or effectively qualified by, any of the circumstances under which the death penalty is authorized by the applicable amendatory laws. Moral damages are pegged at P50,000 without further need of pleading or proof. Exemplary damages, on the other hand, are granted when an aggravating circumstance, which is not offset by a mitigating circumstance, attended the commission of the crime. In several cases, the relationship between the appellant and the rape victim justifies the award of exemplary damages, as in this case. Second Issue: Modification of Penalties One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion for Reconsideration seeking the imposition of the death penalty on appellant for the two cases of consummated rape and reclusion temporal for the attempted rape, in accordance with Section 11 of RA 7659. The prosecution argued that the Motion would not place appellant in double jeopardy, because what is sought is just the imposition of the proper penalty as provided by law. The trial court concurred with the prosecution and granted the Motion in the assailed Order, saying that the Motion was unopposed and that there was no violation of appellants right against double jeopardy. We disagree. Conflicting decisions rendered over the years both allowing the prosecution to seek the reconsideration of a conviction and prohibiting it therefrom necessitate a review of the rule on the modification of judgments of conviction. Early on, in People v. Ang Cho Kio, the Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the prosecution cannot move to increase the penalty imposed in a promulgated judgment. Reopening the case for the purpose of increasing the penalty as sought by the government would place the accused in double jeopardy. This ruling was followed in People v. Pomeroy and People v. Ruiz. The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification or the setting aside of the judgment before it became final or an appeal was perfected. Under this amendment, a judgment acquired finality and the trial court lost jurisdiction only in the following cases: (1) after the 15-day period to appeal lapsed, (2) when the defendant voluntarily submitted to the execution of judgment, (3) when the defendant perfected the appeal, (4) when the accused withdrew the appeal, (5) when the accused expressly waived in writing the right to appeal, and (6) when the accused filed a petition for probation. Under this amendment, the trial court had plenary power to alter or revise its judgment in accordance with the requirements of law and justice. In 1985, Section 7 of Rule 120 was amended to include the phrase upon motion of the accused effectively resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking a modification of a judgment of conviction. As amended, the provision was worded as follows: SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the accused has expressly waived in writing his right to appeal, or the accused has applied for probation. Under this Rule, a judgment of conviction, before it became final, could be modified or set aside upon motion of the accused. It obviously aims to protect the accused from being put anew to defend himself from more serious offenses or penalties which the prosecution or the court may have overlooked in the original trial. It does not however bar him from seeking or receiving more favorable modifications. Significantly, the present Rules, as amended last year, retained the phrase upon motion of the accused, as follows: SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the penalties without the consent of the accused. We close this Decision with an exhortation to the defense counsel to be more circumspect in defending appellant and others similarly situated. Counsel should have immediately objected to the Motion for Reconsideration in the trial court. Because of this failure to take exception, the RTC judge meekly granted the relief prayed for and condemned the accused, inter alia, to two death sentences. Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of the assailed Order. We cannot disregard such serious lapse. We urge counsel, as well as all the members of the bench and the bar, to be more vigilant in protecting the rights of the accused -- especially those in jeopardy of the death penalty -- and to keep abreast of legal developments. Indeed, the learning process in law never ceases. Utmost dedication to duty and excellence is expected of every lawyer. WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order is ANNULLED and SET ASIDE, while the assailed Decision is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral damages are increased to P50,000 and those for exemplary damages to P25,000 for each consummated rape, pursuant to current jurisprudence. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Ynares- Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur. Puno, and Buena, JJ., abroad on official business. [G.R. No. 147231. February 18, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. RONNIE ABOLIDOR, CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused. CLAUDIO BARCIMO, JR., appellant. D E C I S I O N YNARES-SANTIAGO, J.: This is an appeal from the decision dated January 31, 2000 of the Regional Trial Court of Iloilo City, Branch 31, in Criminal Case No. 40948, convicting Claudio Barcimo, Jr. @ Noc-noc, Ronnie Abolidor and Francisco Comoda of the crime of murder, sentencing them to suffer the penalty of reclusion perpetua and ordering them to pay P100,000.00 as civil indemnity, P16,000.00 as actual damages and P30,000.00 as moral and exemplary damages. Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted for Murder in an Information alleging: That on or about the 14 th day of June 1993, in the Municpality of New Lucena, Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another together with another unidentified person, armed with firearms of unknown caliber, with deliberate intent and decided purpose to kill, with treachery, superior strength and evident premeditation, did then and there, willfully, unlawfully and feloniously attack and shoot Thelma Subosa with said firearms hitting the latter on the head, chest and other parts of her body which caused the death of said Thelma Subosa immediately thereafter. CONTRARY TO LAW. Upon arraignment, the three accused pleaded not guilty. Trial on the merits ensued. The victim, Thelma Subosa, was the mother of 14 children with her deceased husband, Primo Subosa. Subsequently, she cohabited with her common-law husband Warlito Huesca and lived together with some of her children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito Huesca also died. In the early morning of June 14, 1993, a day after Warlito was buried, the victim, her children namely, Ellyn, Roselyn, Evelyn, Manilyn, Leopoldo and Lilibeth, and Milagros Huesca, the younger sister of Warlito Huesca, were awakened by the forcible opening of the door of their house. Four men entered the house and declared a hold up. The victim pleaded not to be harmed. Instead, accused Ronnie Abolidor tied her mouth with a handkerchief to silence her. Then appellant Claudio Barcimo, Jr. shot the victim several times causing her instantaneous death. Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr. and Ronnie Abolidor since they slept on the same mat with the victim and a kerosene lamp was near the victims head. Both testified that they knew Ronnie Abolidor because he was their neighbor for several years, and Claudio Barcimo, Jr. because he was a friend of their deceased stepfather. Francisco Comoda was later identified by the witnesses at the police station. Roselyn also testified that on June 12, 1993, at the burial of their stepfather, the victim told her that it was Claudio Barcimo, Jr. @ Noc-Noc who killed Warlito Huesca. For his part, appellant denied any participation in the killing of Thelma Subosa and claimed that he could not have done it because he was a good friend of Warlito Huesca; that on June 13, 1993, at around 4:00 p.m., he was with Brgy. Capt. Buol in a celebration at the house of Brgy. Capt. Gerardo Paniza at Brgy. Dawis. He had dinner and watched game of mahjong; that at around 10:00 p.m., he went to sleep on the sofa near the mahjong table; that the mahjong game lasted until 4:00 a.m. the following day; that he and Capt. Buol went back to New Lucena at about 6:00 a.m. of June 14, 1993; and on the next day, he left for Manila for treatment of tuberculosis. After trial, the trial court convicted the three accused on January 31, 2000 in a decision, the dispositive portion of which reads: WHEREFORE, the prosecution having sufficiently established the guilt of all the three accused, namely, Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor alias Ronnie and Francisco Comoda, beyond reasonable doubt (Rule 133, Sec. 2, Revised Rules of Court) of the offense of Murder under Art. 248, R.P.C. as alleged in the Information, this Court hereby renders judgment sentencing all the said accused to suffer the penalty of imprisonment consisting of Reclusion Perpetua, with all the attendant accessory penalties, to pay P100,000.00 as indemnity for death to the heirs of the late Thelma Sobusa, to pay the sum of P16,000.00 as actual damages, and P30,000.00 by way of moral and exemplary damages and to pay the costs. SO ORDERED. Only Claudio Barcimo, Jr. appealed the decision raising the following assignment of errors: A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF PROSECUTION WITNESSES ELLEN SOBUSA AND ROSELYN SOBUSA AND IN NOT APPRECIATING THE TESTIMONY OF THE AUNT OF SAID WINTNESSES AS CORROBORATED BY THE BARANGAY CAPTAIN OF THE PLACE WHERE THE INCIDENT HAPPENED THAT THE SAID PROSECUTION WITNESSES HAVE NOT IDENTIFIED THE KILLERS. B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN THE COMMISSION OF THE CRIME. C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN THE COMMISSION OF THE CRIME. D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY SURRENDER OF THE ACCUSED. Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and Roselyn as one of the assailants is doubtful because when asked whether they know the assailants, they replied in the negative. The contention is without merit. By challenging his identification by the witnesses of the prosecution, as one of the assailants of the victim, the appellant attacks the credibility of said witnesses and the probative weight of their testimonies. However, when the issue of credibility of witnesses is in question, the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate court high respect if not conclusive effect, precisely because of the unique advantage of the trial court in observing and monitoring at close range the demeanor, deportment and conduct of the witnesses as they testify, unless the trial court has overlooked, misconstrued or misinterpreted cogent facts of substance which if considered might affect the result of the case. In the case at bar, there is no showing that the trial court overlooked, misunderstood, misapplied or misconstrued any fact of substance that might materially affect the outcome of the case. The trial court found the collective testimonies of the prosecution witnesses Ellyn and Roselyn to be: generally impressionable but their natural naivet and inexperience make them reliable witnesses. Their statements are generally free from any bias or prejudice as to be slanted or malicious. It is observed that the testimonies of Ellyn and Roselyn Sobusa are direct, straightforward and delivered without any hesitancy whatsoever. The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively identified appellant as the one who shot the victim. Although the incident occurred during nighttime, the house of the victim was sufficiently illuminated by the kerosene lamp placed near the head of the victim, which provided enough light for purposes of identifying the killers. On direct testimony, Ellyn Sobusa narrated the incident as follows: Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident that happened? A. Yes, sir. Q. What is that incident about? A. At around that time I was awakened by the sound of the opening of the door. I saw four (4) persons entered our house and one them said, This is a hold up. My mother then pleaded, Do not kill me. Have mercy. Q. What happened after your mother pleaded have mercy? A. There was a shot and I ducked. Then another shot was fired which I do not know anymore because I lied with my face down. Q. Do you know the person who said this is a hold up? A. Yes, sir. Q. Who is he? A. Nocnoc. Q. How far is this Nocnoc when you said he shot your mother? A. Very near. Q. What was the position of your mother by the time she was shot by Nocnoc? A. She was lying down. x x x x x x x x x Q. Miss witness, this incident happened at around 2:00 oclock in the morning, why are you sure that Ronnie Abolidor was one of the four persons who entered your house? A. Because we have a kerosene lamp placed very near the head of my mother. Q. How far is that kerosene lamp from your mother? A. Witness demonstrates about 5 to 6 inches more or less. Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene lamp? A. Nocnoc was situated on the feet of my mother. Q. What was the position of Nocnoc when he shot your mother? A. He was standing. Considering the illumination from the kerosene lamp, and Ellyns proximity to her mother and to the appellant, she could have clearly seen and recognized the appellant when he shot the victim. In People v. Prieto, we ruled that the illumination provided by kerosene lamp or wicklamps, and flashlights, moonlight or starlight may, in proper situations, be considered as sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. Moreover, Roselyn testified that she was familiar with the voice of the appellant as he was a friend of his stepfather and she visited appellants house several times. The voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years. Once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance. We also note that appellant did not deny that Warlito Huesca was his good friend and that he visited their house many times. The credibility of the prosecution witnesses Ellyn and Roselyn is not adversely affected by their failure to immediately report the identities of the perpetrators to the responding authorities immediately after the incident. Indubitably, fear stifled the witnesses from voicing their knowledge of the identities of the perpetrators. There is no rule that a witness should immediately name the suspect in a crime. Nevertheless, the delay was not that long as when the police authorities investigated the witnesses in the afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara, Iloilo, they named appellant and accused Ronnie Abolidor as two of the perpetrators. To escape criminal liability, appellant invokes the defense of alibi and denial. He asserts that he could not have done it considering that Warlito Huesca, the common-law husband of the victim, was his good friend and at the time of the incident he was at Brgy. Dawis together with Brgy. Capt. Buol in the house of Brgy. Capt. Gerardo Pineza watching the game of majhong. We are not convinced. It is well settled that positive identification, where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving weight in law. Hence, the defense of denial and alibi cannot prosper in the light of the positive identification by eyewitnesses Ellyn Sobusa and Roselyn Sobusa that appellant was the one who shot their mother. We agree with the trial courts appreciation of the presence of qualifying circumstance of treachery. There is treachery when the offender commits any of the crimes against persons, 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. It is settled that there is treachery if the victim, when killed, was sleeping or had just awakened, because in such cases the victim was in no position to put up any form of defense. In the case at bar, the victim had just awakened from sleep because of the forcible opening of their door. When she was shot by appellant, she was lying down on the mat with a handkerchief tied around her mouth. Obviously, in this position she can not defend herself from the aggression of the perpetrators. The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To benefit an accused, the following requisites must be proven, namely: (1) the offender has not actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. Voluntary surrender presupposes repentance. In People v. Viernes, we held that going to the police station to clear ones name does not show any intent to surrender unconditionally to the authorities. In the case at bar, appellant surrendered to the authorities after more than one year had lapsed since the incident and in order to disclaim responsibility for the killing of the victim. This neither shows repentance or acknowledgment of the crime nor intention to save the government the trouble and expense necessarily incurred in his search and capture. Besides, at the time of his surrender, there was a pending warrant of arrest against him. Hence, he should not be credited with the mitigating circumstance of voluntary surrender. Appellant is guilty of Murder, qualified by treachery, for the killing of Thelma Sobusa. Article 248 of the Revised Penal Code, as amended, imposes the penalty of reclusion perpetua to death for Murder. The trial court was correct in imposing the penalty of reclusion perpetua, there being no aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal Code. The trial court awarded the amount of P100,000.00 as civil indemnity to the heirs of the victim. Said amount must be reduced to P50,000.00, in line with prevailing jurisprudence. The award of actual damages must also be modified. While appellant admitted the amount of P19,000.00 as actual damages, the trial court only awarded the amount of P16,000.00. Ordinarily, receipts should support claims of actual damages, but where the amount claimed was admitted, it should be granted. Consequently, the heirs of the victim is entitled to be awarded the amount of P19,0000.00 as actual damages. The trial court likewise erred when it awarded the amount of P30,000.00 as moral and exemplary damages without indicating what amount constitutes moral damages and exemplary damages. In murder and homicide cases, the award of moral damages should be substantiated by evidence. In the case at bar, the prosecution failed to present proof of moral damages. Therefore, the same should be deleted. On the other hand, exemplary damages must be awarded in view of the attendance of treachery which qualified the killing to Murder. Under Article 2230 of the Civil Code, exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. The term aggravating circumstances as used therein is to be understood in its broad or generic sense since the law did not specify otherwise. The ordinary qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil liability of the offender. Thus, the heirs of the victim are entitled to exemplary damages in the amount of P25,000.00. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Iloilo City, Branch 31, in Criminal Case No. 40948, insofar as it finds Claudio Barcimo, Jr. @ Noc-noc guilty beyond reasonable doubt of the crime of murder and sentences him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that appellant is ORDERED to pay the heirs of Thelma Sobusa the amounts of P50,000.00 as civil indemnity, P19,000.00 as actual damages and P25,000.00 as exemplary damages. The award of moral damages is DELETED. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, Carpio, and Azcuna JJ., concur FIRST DIVISION [G.R. No. 130650. September 10, 2002] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO VERCELES, FELIX CORPUZ, MAMERTO SORIANO (At large), PABLO RAMOS (At large), and JERRY SORIANO (State Witness), accused, MARIO VERCELES and FELIX CORPUZ, accused- appellants. D E C I S I O N YNARES-SANTIAGO, J .: Accused Mario Verceles alias Baldog, Felix Corpuz, Mamerto Soriano alias Merto, Pablo Ramos and Jerry Soriano were charged with the crime of Robbery with Rape committed as follows: That on or about the 19 th day of October, 1996, in the morning, in barangay Malibong, municipality of Urbiztondo, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, with intent of gain and by means of force upon things, entered the house of one Mrs. Rosita Quilates by forcibly destroying the grills of the window which they used as an ingress and once inside, did, then and there, willfully, unlawfully and feloniously take and cart away the following personal properties: one (1) colored T.V., one (1) VHS, assorted jewelries, one (1) alarm clock and one (1) radio cassette, all valued at SIXTY THOUSAND PESOS (P60,000.00) owned by the said Rosita Quilates, and that on the same occasion, the said accused, conspiring, confederating and helping one another, did then and there, willfully, unlawfully and feloniously have sexual intercourse with Maribeth Bolito against her will to the damage and prejudice of the aforenamed victims. CONTRARY to Art. 299, par. A(2) in relation to Art. 335 of the Revised Penal Code.[1 Of the five accused, Mamerto Soriano and Pablo Ramos remain at large. Only Mario Verceles, Felix Corpuz and Jerry Soriano were brought to the jurisdiction of the court. During arraignment, the three accused, duly assisted by counsel, pleaded not guilty to the crime charged. Thereafter, the prosecution filed a motion to discharge accused Jerry Soriano as a State Witness. The court proceeded with the trial of the case pending the resolution of the said motion to discharge. The trial court subsequently discharged accused Jerry Soriano and received his testimony as state witness. According to Soriano, on October 18, 1996, the five accused boarded a tricycle owned by Mario Verceles to visit his cousin in barangay Goliso, located at the boundary of Urbiztondo. At 8:00 in the evening, they proceeded to barangay Malibong to visit Pepe, a compadre of Mamerto Soriano. Before reaching Pepes place, they stopped at the house of Jerrys grandmother, Rosita Quilates. Jerry sensed that his companions had an evil plan, so he and Pablo Ramos tried to leave. However, Mamerto Soriano poked a gun at Jerry and told them not to leave. Then, they tied Jerry and Pablo under a mango tree. The three proceeded to the house of Rosita Quilates. While waiting for the three, Jerry and Pablo fell asleep. When they woke up at 2:00 a.m., they saw the three accused carrying a TV set, VHS and other things. They helped the three load the items in the tricycle. Then they went home to San Jacinto, Pangasinan. Several days later, they sold the items and Jerry was given three hundred pesos.[2 The prosecution witness Maribeth Bolito testified that on October 19, 1996 at around 2:00 in the morning, she was awakened by a man fondling her breast and other private parts. She tried to resist and fight back but her strength proved too weak against her aggressor. Furthermore, the man had a gun pointed at her head. She later identified her aggressor as Mamerto Soriano. While she was being ravished, she saw two men standing at the door, whom she identified as accused Mario Verceles and Felix Corpuz. Soriano undressed her then kissed her on the body and fondled her breasts for five minutes. She pretended to be thirsty, so Soriano, holding her tightly, brought her to the kitchen. There he removed his pants and laid her on the floor and tried to insert his penis inside her vagina. Maribeth lost consciousness and when she came to, her private part was very painful and the three accused were gone.[3 Dra. Revelina Millan, who examined Maribeth on October 20, 1996, made the following findings:[4 - GO IMP : September 2 nd week/96 3 days - SKIN : No hematoma No Abrasion - IE : with healed laceration at 9 oclock position - For vaginal smear for presence of spermatozoa - Result : Negative for spermatozoa SPO2 Eduardo Fernandez, who investigated the robbery, testified that the malefactors entered through the window of one of the bedrooms of the house; that they took personal properties valued at P60,000.00; that Maribeth Bolito was sexually abused; and that a necklace was recovered from Felix Corpuz.[5 Mrs. Rosita Quilates testified that she learned from her granddaughter, Maribeth Bolito, that her house was robbed and her personal belongings were missing; and that she was able to recover the properties from a certain Andres Tirano, who bought them from accused Mamerto Soriano. In their defense, Felix Corpuz testified that on October 19, 1996, he was in Manila working as a carpenter in a construction firm. He stayed in Manila from October 5, 1996, and did not visit his hometown until the completion of the job contract on October 27, 1996. He first learned that he was a suspect in a crime on November 3, 1996.[6 Ernesto Lambino, Jr. corroborated the testimony of Felix Corpuz. He testified that he was the one who recruited Felix to work in Tambo, Rizal, Paraaque as a mason carpenter. They arrived in Manila on October 5, 1996 and Felix started his work on October 6, 1996 until October 26, 1996.[7 Accused Mario Verceles, for his part, testified that in the evening of October 18, 1996, he attended the wake of Crispulo de Guzman at Barangay San Vicente, San Jacinto, Pangasinan. There he played cards up to 4:00 a.m. of October 19, 1996. He left the place at 5:00 a.m. He only learned that the police were looking for him when his wife fetched him in Mapandan, Pangasinan. He went to the barangay captain of his place and arranged for his surrender to the authorities. Police Inspector Rodolfo Tadeo corroborated his testimony that he voluntarily surrendered to the police on November 5, 1996.[8 After trial, the lower court rendered a decision, the dispositive portion of which reads:[9 WHEREFORE, in view of the foregoing, the Court hereby finds accused Felix Corpuz and Mario Verceles guilty beyond reasonable doubt of the crime of Robbery with Rape defined and penalized under Article 294, 1, as amended, of the Revised Penal Code, and there being neither mitigating nor aggravating circumstance, the Court hereby sentences each to suffer the penalty of Reclusion Perpetua. Both Felix Corpuz and Mario Verceles are likewise ordered to pay jointly and solidarily the victim Maribeth Bolito the sum of Two Hundred Thousand Pesos (P200,000.00) for moral damages, One Hundred Thousand Pesos (P100,000.00) for exemplary damages and to pay Rosita Quilates the sum of Twenty One Thousand Pesos (P21,000.00) on the value of the properties which were not recovered and further orders that the recovered TV, VHS appliances and necklace be returned to its lawful owner. SO ORDERED. Accused Felix Corpuz and Mario Verceles interposed the instant appeal. They alleged that the trial court erred in discharging Jerry Soriano as a state witness, in appreciating conspiracy among the accused, in not considering as mitigating circumstance the voluntary surrender of Mario Verceles, and in awarding damages to the private complainants. The appeal lacks merit. Accused-appellants contend that the discharge of Jerry Soriano did not comply with the requirements of the Rules of Court. They contend that Sorianos testimony does not constitute direct evidence; at most, it was circumstantial in nature and of minuscule importance.[10 Moreover, Jerry Soriano was the most guilty for he admitted his guilt with regard to the commission of the crime together with Mamerto Soriano.[11 The requirements for the discharge and utilization of an accused as a state witness are enumerated in Rule 119, Section 17[12 of the Revised Rules of Criminal Procedure, viz: a) There is absolute necessity for the testimony of the accused whose discharge is requested; b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the accused; c) The testimony of said accused can be substantially corroborated in its material points; d) Said accused does not appear to be the most guilty; and e) Said accused has not at any time been convicted of any offense involving moral turpitude. The trial court did not err in discharging Jerry Soriano to be utilized as a state witness. First, the testimony of Jerry Soriano was absolutely necessary as the prosecution has no direct evidence to prove the identity of the malefactors Mamerto Soriano, Felix Corpuz, Mario Verceles and Pablo Ramos. The record reveals that the five accused were together on the night the robbery and rape took place. He may not have witnessed the actual robbery and rape, but he has personal knowledge of the robbery when he saw the three accused return to the place where he and Pablo Ramos were allegedly tied, carrying with them the properties said to have been stolen. Second, Jerry Sorianos testimony was corroborated in its material points by other prosecution witnesses and physical evidence. These are: (a) the testimony of Maribeth Bolito that there were three malefactors, one of whom sexually abused her and two of whom just stood at the door; (b) the testimony of Rosita Quilates that her properties were stolen; and (c) the testimony of SPO2 Renato Solomon that they were able to recover the stolen properties from a certain Andres Tirano who bought them from accused Mamerto Soriano. Lastly, Jerry Soriano does not appear to be the most guilty for he was not a co-conspirator in the robbery with rape. He merely accompanied the accused and received three hundred pesos as his share in the proceeds of the sale of the stolen properties. Besides, the question of whether Jerry Soriano appears to be the most guilty is a factual issue. The discretionary judgment of the trial court on this matter is seldom interfered with by appellate court except in case of grave abuse of discretion.[13 We find no good reason to disturb the trial courts findings of facts. Granting ex gratia argumenti that not all the requisites of a valid discharge are present, the improper discharge of an accused will not render inadmissible his testimony nor detract from his competency as a witness. Any witting or unwitting error of the prosecution in asking for the discharge, and of the court in granting the petition, no question of jurisdiction being involved, cannot deprive the discharged accused of the acquittal provided by the Rules, and of the constitutional guarantee against double jeopardy.[14 On the matter of whether rape was committed, we agree with the trial courts ruling that neither the healed lacerations on the vagina of the victim nor the absence of spermatozoa negates rape. When an alleged victim of rape says she was violated, she says in effect all that is necessary to show that rape had been inflicted on her, and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof.[15 In the case at bar, the victims declaration of her sexual ordeal, which was given in a straightforward, convincing, credible and satisfactory manner, shows no other intention than to obtain justice for the wrong committed by accused-appellant Mamerto Soriano against her. The Court finds no reason to depart from the rule that the trial courts evaluation of the credibility of the testimonies of the witnesses is accorded great weight because it has the unique opportunity of hearing the witnesses testify and observing their deportment and manner of testifying.[16 We agree with the trial court that conspiracy has been sufficiently proved by the prosecution. Accused-appellants were one in design with accused Mamerto Soriano in taking personal properties belonging to others without the latters consent by breaking one of the windows to be used as their ingress. In the course of the robbery, one of them, particularly Mamerto Soriano, succumbed to lustful desires and raped Maribeth Bolito while accused-appellants just stood outside the door and did nothing to prevent Mamerto Soriano. We have previously ruled that once conspiracy is established between two accused in the commission of the crime of robbery, they would be both equally culpable for the rape committed by one of them on the occasion of the robbery, unless any of them proves that he endeavored to prevent the other from committing the rape.[17 The rule in this jurisdiction is that whenever a rape is committed as a consequence, or on the occasion of a robbery, all those who took part therein are liable as principals of the crime of robbery with rape, although not all of them took part in the rape.[18 In trying to mitigate his criminal liability, accused-appellant Mario Verceles argued that the trial court erred in not considering the circumstance of voluntary surrender in his favor. Upon learning that police authorities were searching for him in connection with the alleged crime, he immediately proceeded to the barangay captain of his place and voluntarily surrendered himself. However, the Solicitor General argues that the surrender of accused-appellant Mario Verceles was not voluntary and spontaneous for it took him 16 days to show up from the commission of the crime on October 19, 1996 to November 4, 1996.[19 For the mitigating circumstance of voluntary surrender to be appreciated, the accused must satisfactorily comply with three requisites: (1) he has not been actually arrested; (2) he surrendered himself to a person in authority or the latter's agent; and (3) the surrender is voluntary. There must be a showing of spontaneity and an intent to surrender unconditionally to the authorities, either because the accused acknowledges his guilt or he wishes to spare them the trouble and expense concomitant to his capture.[20 Voluntary surrender is not a mitigating circumstance where it appears that the purpose of the accused in going to the authorities is for an entirely different matter as to inquire merely about a warrant of arrest in connection with a pending case against the accused for rape. [21 Evidence shows that Mario Verceles surrender to the authorities was not spontaneous and unconditional. He submitted himself to the police only to clear the matter and to know the reason why the police were looking for him[22 and when asked what his involvement was to the alleged robbery and rape, he answered that he does not know anything about the crime.[23 In People v. Abella,[24 we held that when the accused goes to a police station merely to clear his name and not to give himself up, voluntary surrender may not be appreciated. On the basis of the foregoing, accused-appellant Mario Verceles is not entitled to the benefit of the mitigating circumstance of voluntary surrender. We thus hold that accused-appellants defense of alibi and denial cannot overcome Maribeth Bolitos positive testimony that she was raped and that her grandmothers house was robbed, especially since this was substantially corroborated by the other prosecution witnesses. Time- honored is the rule that the positive and categorical assertions of witnesses generally prevail over bare denials.[25 In line with established jurisprudence,[26 we are constrained to modify the award of moral damages from P200,000.00 to P50,000.00, as this award is not intended to enrich the victim but to compensate for her suffering. Moreover, the trial court committed a reversible error when it awarded exemplary damages in the amount of P100,000.00 despite the absence of one or more aggravating circumstances.[27 As regards the value of the properties belonging to Rosita Quilates that were not recovered, the records are bereft of any evidence to support such claim. Lastly, Maribeth Bolito should have been awarded the sum of P50,000.00 for civil indemnity, as it is mandatory upon a conviction of rape. Such indemnity is distinct from moral damages and based on different jural foundations.[28 WHEREFORE, the assailed decision finding accused-appellants Mario Verceles and Felix Corpuz guilty beyond reasonable doubt of the crime of Robbery with Rape punished under Article 294 (1) of the Revised Penal Code and sentencing them to suffer the penalty of Reclusion Perpetua, is AFFIRMED with the MODIFICATION that the award of moral damages is reduced from P200,000.00 to P50,000.00; the award of exemplary damages is DELETED for lack of basis and the sum of P50,000.00 is awarded for civil indemnity. SO ORDERED. Davide, J r., C.J ., (Chairman), Vitug, and Carpio, J J ., concur.
FIRST DIVISION [G.R. No. 127803. August 28, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO ABELLA, DIOSDADO GRANADA, BENJAMIN DE GUZMAN, and EDGARDO VALENCIA, accused- appellants. Facts: It all started with an altercation during a basketball game. 3 days later, the 5 victims bodies were found in the Pasig River.Victims were Marlon and Joseph Ronquillo, Erwin and Andres Lojero and Felix Tamayo.
Marlons hands were tied at the back with an electric cord, he had wounds and died from a gunshot to the head. Andres hands were also bound at the back with a rope, his genitals were cut off and had wounds in his body as well, cause of death was asphyxia by strangulation. Josephs hands were tied at the back with a basketballt-shirt, had wounds and died of strangulation as well. Erwins and Felixs body had abrasions and burns, there were cord impressions on his wrists, a fracture in his skull and died by drowning.
The accused are Abella, Granada, De Guzman, Valencia (all surnames), for MURDER, qualified by treachery and evident premeditation. There were other accused but their names were dropped from the information later on.
March 1992, the victims Ronquillo brothers were played 3 rounds of basketball in Sta. Mesa Manila against the team of Joey de los Santos. The Ronquillos brothers won the first 2 rounds but the 3rd one ended in a brawl. Later that afternoon, Joey went back to the place carrying 2 pillboxes but were apprehended. So, Joey and his brother just threw stones at the Ronquillos house. The neighbors saw this and ran after them and mauled them.
That night, the victims were in front of the Ronquillos house. Suddenly, a white Ford Fiera without a plate number stopped in front of the group. There were 10-13 people on board, including Joey and his brother. The passengers in the Fiera alighted, faces covered with handkerchiefs and they were armed. The victims tried to run but a shot was fired and Felix (victim) was shot. They were boxed, kicked and hit and dragged into the van. They were brought to a basement in a compound where witness Elena saw them being mauled, whipped with a gun, beaten with steel tubes and lead pipes. They also had a blowtorch and the victims hands were tied. The victimsbegged for mercy. Afterwards, they were herded back to the car, seeming almost dead. 2 days later, their bodies were found in the Pasig river.
Accused defense was an alibi, that they are INC members and were attending a panata that night. According to them, when they read their names in the newspapers as the perpetrators of the crime, they consulted the INC Central Office and were then accompanied by a lawyer to go to the police station to clear their names, They were later on identified in a police line-up. The RTC convicted all of them for MURDER, with a penalty of reclusion perpetua.
Issue: Whether or not the accused are entitled to the mitigating circumstance of voluntary surrender.
Held: No. First of all, the witnesses were able to fully establish and prove and connect the appellants-accused to the crime. The SC is sufficiently satisfied that their guilt was proven beyond reasonable doubt.
The killing was characterized by treachery. Though treachery should normally attend at the inception of the aggression, the facts show that the victims were first seized and bound and then slain, hence treachery is present. In this case, it is enough to point out that thevictims hands were tied at the back when their bodies were found floating in Pasig River. This fact clearly shows that the victims were rendered defenseless and helpless, thereby allowing the appellants to commit the crime without risk at all to their persons. The circumstance of abuse of superior strength was absorbed in treachery.
The appellants move to clear their names cannot be accepted as voluntary surrender. For a surrender to be voluntary, it must be spontaneous and should show the intent of the accused to submit himself unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) he wishes to save the government the trouble and expense necessarily included for his search and capture. When the accused goes to a police station merely to clear his name and not to give himself up, voluntary surrender may not be appreciated.
D E C I S I O N DAVIDE, JR., C.J.: It all started with an altercation during a basketball game. Three days later, or on 10 March 1992, the bodies of MARLON Ronquillo; JOSEPH Ronquillo; ERWIN Lojero; ANDRES Lojero, Jr.; and FELIX Tamayo were fished out of the murky waters of the Pasig River, filthy, bloated, putrid, and decomposing. Postmortem examinations on the cadavers showed signs of foul play. MARLONs hands were tied at the back with a black electric cord. He had lacerated wounds, contusions, ligature marks and hematoma. He died from a gunshot wound on the head. ANDRES hands were bound at the back with a plastic flat rope with four loops. His genitals were cut off; and he had ligature marks, contusions, and hematoma. The cause of his death was asphyxia by strangulation; hemorrhage, intracranial, traumatic. JOSEPHs hands were hog-tied at the back using a basketball T-shirt. He also had ligature marks, contusions, lacerated wounds and fracture. He died of asphyxia by strangulation; hemorrhage, intracranial, traumatic with skull fracture. ERWINs body showed abrasions and burns. There were cord impressions on his wrists and depressed fracture on his head and at the base of his skull. He died of asphyxia by drowning with blunt head injury. FELIX had abrasions on the left cheek and tie impressions on the wrists. The cause of his death was asphyxia by drowning. On 18 March 1992, five informations for murder were filed before the Regional Trial Court of Manila (hereafter the trial court) against Juanito ABELLA, Diosdado GRANADA, Benjamin DE GUZMAN, Edgardo VALENCIA, Renato Dante, and Virgilio de Guzman. The cases were raffled to Branch 52 presided over by the late Judge David Nitafan. Docketed as Criminal Cases Nos. 92-104529 to -33, the informations identically read as follows: That on or about March 8, 1992, in the City of Manila, Philippines, the said accused, conspiring and confederating together with others whose true names, real identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one Marlon Ronquillo y Alepda [(Criminal Case No. 92-104529), one Felix Tamayo y Pascual (Criminal Case No. 92-104530), one Andres Lojero, Jr. y Pascual (Criminal Case No. 92-104531), one Joseph Ronquillo y Alepda [(Criminal Case No. 92-104532), one Erwin Lojero y Pascual (Criminal Case No. 92-104533)] by then and there hitting his head with guns, kicking him, tying his hands, [neck and private organ (additional allegation in Criminal Case No. 92-104531)] and thereafter throwing his body into the river thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter. Contrary to law. [Enclosures supplied]. On 25 March 1992, the informations were amended to include three other accused, namely, Joselito Crespo, Bienvenido Dugay and Danilo Abarete. Upon arraignment all the accused pleaded not guilty to the charges against them. On 26 August 1992, Joselito Crespo, Renato Dante, Bienvenido Dugay, Danilo Abarete and Virgilio de Guzman were dropped from the information. The prosecutions version of the events is as follows: In the morning of 7 March 1992, MARLON, JOSEPH, and an unidentified companion played three rounds of basketball against the team of JOEY de los Santos at the vicinity of Dalisay and Lakas Streets, Bacood, Sta. Mesa, Manila. The Ronquillos won the first two rounds; but the third round ended in a brawl, which the neighbors quickly pacified. JOEY later went back to Dalisay Street carrying two pillboxes. A certain Donald Ancheta saw him, took the pillboxes and turned them over to a policeman. On 8 March 1992, between 5:00 and 6:00 p.m., JOEY and his brother GENER threw stones at the Ronquillos house, attracting the attention of neighbors, who forthwith ran after the brothers. JOEY and GENER were overtaken and mauled before they were released. Between 8:00 and 9:00 p.m. of the same day, WILFREDO Lojero, a certain Daniel, and the victims were in front of the Ronquillos house in Lakas Street, trading stories while awaiting a certain Aling Flor. JOSEPHINE del Rosario was then at the corner of Lakas Street on her way to a friends house when the victims called her and asked her about her mother, who was a barangay kagawad at Bacood. They told her that they were waiting for Aling Flor to report to her that JOEY and GENER threw stones at the Ronquillos house. Later, EVELYN de la Cruz joined the group in the conversation. The area was then illuminated by a streetlight at the corner of Damayan and Dalisay Streets about ten arms-length away. Suddenly, a dirty white Ford Fiera without a plate number stopped in front of the group. There were about ten to thirteen people on board. Among them were JOEY and GENER, who looked out of the van and pointed at the victims. All the passengers except for JOEY and GENER alighted. Their faces were covered with black handkerchiefs, and they were armed. Someone shouted, Pulis ito! Another exclaimed, Walang tatakbo! FELIX ran but stopped when shots were fired; he was hit with a gun then dragged into the van. WILFREDO Lojero, however, managed to sneak into the Ronquillos house and was able to see everything. The other victims were boxed, kicked, and also hit with a gun and dragged into the van. Before the van sped away, one of the abductors warned JOSEPHINE, Ikaw huwag kang maingay, wala kang nakita, wala kang narinig. Meanwhile, at about 6:00 p.m. inside the Iglesia ni Cristo (INC), Sta. Ana compound in Bacood, ELENA Bernardo was waiting for Pastor Cesar Almedina to seek his advice regarding her son-in-laws problem. Pastor Almedina asked her to wait, and she did so. She waited until 10:00 p.m. Suddenly the guard switched off the lights inside the compound. With only the MERALCO light illuminating the compound from outside, she saw a dirty white Ford Fiera loaded with passengers enter and park in front of the pastoral house near the path leading to the basement. JOEY, GENER, all the accused and the victims were inside the van. Four of the victims were made to alight from the van, while the fifth one lay on the floor of the vehicle as though dead. The victims were brought to the basement, which was at the back of the chapel and beneath the choir office. ELENA followed. Inside the basement the victims were continually mauled, whipped with a gun, and beaten with steel tubes, lead pipes and other blunt instruments. One of the victims was tied with wire. Filemon Garcia arrived with a blowtorch and also entered the basement. ELENA heard the victims beg for mercy. Unable to endure the sight she sat in front of the chapel and stayed for 30 minutes. Pastor Almedina arrived and told her that they would talk about her problem at another time. Afterwards the victims were herded back to the Fiera. They seemed almost dead. On 10 March 1992, at 8:45 a.m., the lifeless body of FELIX was found floating on the Pasig River near Beata-Tawiran in Pandacan. At 12:25 p.m., ERWINs body was retrieved from the same river at the back of the Sta. Ana market. At about the same time, the decomposing bodies of ANDRES, MARLON and JOSEPH were also fished out of the Pasig River near Lambingan Bridge. SPO3 Myrna Ricasa prepared the crime report and was part of the group that conducted the police line-up on 13 March 1992. Witnesses to the abduction identified the accused from among five line-ups. JOSEPHINE identified ABELLA as among the passengers of the Ford Fiera. EVELYN pointed to GRANADA; Roy Ronquillo and Noel Estorel, who were not presented as witnesses, identified DE GUZMAN and VALENCIA, respectively. Appellants advanced alibi as their defense. They all claim to have attended the panata at the Punta Sta. Ana chapel on 8 March 1992 from 8:00 to 10:00 p.m., save for ABELLA whose attendance was excused. The panata is a religious practice of the INC held for seven consecutive days as preparation for the santa cena or holy supper. In 1992, the panata was held from 8 to 14 March 1992 and the santa cena, on 15 March 1992. VALENCIA testified that after the panata on 8 March 1992, he went home to San Juan, Metro Manila; it was then about 11:00 p.m. For his part, GRANADA claimed that after attending the panata, he left the Iglesia compound with Filemon and Marilou Garcia. The three arrived at the Garcia residence in Bacood, Sta. Mesa, at 11:00 p.m. Filemon and GRANADA had snacks and watched two movies on the video player. It was already past midnight when GRANADA went home. GRANADAs testimony was corroborated by both Filemon and Marilou. ABELLA was a member of the PNP highway patrol group assigned to Mobile Unit No. 13 in March of 1992. His tour of duty was from 2:00 to 10:00 p.m. He was previously granted exemption from attending the panata. Together with PO3 Ferdinand Parolina, he patrolled Roxas Boulevard from the corner of T.M. Kalaw St. to the corner of Vito Cruz St. on 8 March 1992. ABELLA and Parolina parted ways at 10:15 p.m. PO3 Parolina, who drove the mobile car, corroborated ABELLAs testimony. According to former accused Bienvenido Tugay, on 11 March 1992 at 11:00 p.m., Major Joe Pring arrived at the Iglesia compound in Punta, Sta. Ana, with police officers, demanding entrance inside the premises. Since there was no order from his superior allowing outsiders to enter the compound, Tugay refused. Enraged, Pring asked for the names of Tugays companions. Tugay enumerated the names of appellants. The following day, appellants read their names in newspapers as among the perpetrators of the crime. Alarmed, they consulted the INC Central Office on what steps to take. Accompanied by Atty. Restituto Lazaro of the Iglesias legal department, appellants proceeded to see Gen. Diokno at the Western Police District Headquarters on 13 March 1992 to clear their names. Major Pring brought them to his office and hurriedly organized a police line-up. During the line-up Major Pring allegedly tapped all the accused on the shoulder as a signal to the prosecution witnesses for identifying them. Accordingly, appellants were identified. On 7 February 1995, after several instances where defense counsel questioned his orders and doubted his partiality, Judge Nitafan inhibited himself from further hearing the cases. The cases were re-raffled to Branch 35 presided over by Judge Ramon P. Makasiar, who penned the decision on 15 November 1996 convicting the accused. The dispositive portion reads: WHEREFORE, judgment is rendered pronouncing the four accused in these cases: JUANITO ABELLA y GARCIA, DIOSDADO GRANADA y SALCEDO, BENJAMIN DE GUZMAN y LABASAN, and EDGARDO VALENCIA y VILLANUEVA guilty beyond reasonable doubt of MURDER on five (5) counts, and sentencing each of them to the penalties of five (5) reclusion perpetua, and to pay the costs in proportionate shares. The said four accused are further ordered, jointly and severally, to pay: A. To Erlinda Ronquillo and Betty Ronquillo 1. P91,607.70 for actual damages, 2. P500,000.00 to each of them for moral damages, 3. P500,000.00 to each of them for exemplary damages; B. To Domingo Tamayo 1. P33,125.50 for actual damages, 2. P500,000 for moral damages, 3. P500,000 for exemplary damages; C. To Andres Lojero, Sr. 1. P60,716.00 for actual damages, 2. P1,000,000.00 for moral damages, 3. P1,000,000.00 for exemplary damages. SO ORDERED. This decision was amended to include an award of P50,000 as indemnity for the death of each of the victims. Appellants are now before us contending that the trial court erred: I IN FINDING THAT THERE WAS POSITIVE AND CLEAR IDENTIFICATION OF THE ACCUSED IN THE ALLEGED ABDUCTION OF THE VICTIMS; II IN GIVING CREDENCE TO THE TESTIMONY OF ALLEGED EYEWITNESS ELENA BERNARDO; III IN HOLDING THAT CIRCUMSTANTIAL EVIDENCE ADDUCED BY THE PROSECUTION IS SUFFICIENT TO SUSTAIN CONVICTION; IV IN FINDING ACCUSEDS DEFENSE OF ALIBI WEAK; V IN HOLDING THAT TREACHERY WAS PRESENT TO QUALIFY THE CRIME TO MURDER; and VI IN RULING THAT THE VOLUNTARY SURRENDER OF THE ACCUSED DOES NOT CONSTITUTE A MITIGATING CIRCUMSTANCE. As to the first assignment of error, appellants contend that reliance on the testimonies of JOSEPHINE and EVELYN is misguided. In JOSEPHINEs testimony she expressly named the abductors as GRANADA and a good-looking guy, referring to ABELLA, who could be easily remembered; but in her sworn statement she only mentioned GRANADA. Such omission of an important detail casts doubt on the veracity of her identification of ABELLA. Neither did EVELYN identify ABELLA, De Guzman and Valencia during the police line-up and in her sworn statement of 11 March 1992, although she pointed to all appellants when she testified in court. That GRANADA was recognized both by JOSEPHINE and EVELYN in a dimly lit place at night because of his gray hair is likewise unworthy of belief. Appellants claim in their second assignment of error that ELENAs testimony was a mere concoction with loopholes that were revealed during cross-examination. Her insistence that all the victims were stabbed was disproved by medico-legal findings. Her testimony was uncorroborated by either testimonial or physical evidence and was even contradicted by the ocular inspection as observed by the presiding judge himself. Admittedly holding a grudge against GRANADA, she is a biased witness motivated by vindictiveness. In their third assignment of error, appellants allege that the circumstances relied upon by the trial court were not established with certainty. The only circumstances proven were the basketball altercation, the stoning of the Ronquillos house, FELIXs attempt to flee and the fact that the victims were fished out of the Pasig River. Testimonies on the abduction are patently inconsistent with each other. Nothing connects the appellants to the basketball altercation or the stoning of the Ronquillos house. The link between appellants and the De los Santos brothers is tenuous. Appellants next assert that their defense of alibi gained strength because they were not positively identified. They further maintain that the use of superior force as a qualifying circumstance was not alleged in the information and could not therefore serve to elevate the killing to murder. Neither could treachery be considered, as there were no witnesses to the actual killing. Lastly, appellants equate their move to clear their names to the mitigating circumstance of voluntary surrender. We affirm the conviction of appellants. After a careful scrutiny of the witnesses testimonies, we find that all the appellants were positively identified as the ones who abducted and killed the victims. I JOSEPHINE readily recognized GRANADA from among the abductors who alighted from the Fiera, as he was her neighbor and she has known him since she was a child. In spite of the black handkerchief covering GRANADAs face, JOSEPHINE was familiar with his physique and physical features, particularly his prematurely graying hair. She was in front of the victims when they were abducted. When part of the face of the accused is not visible, positive identification is difficult. Nevertheless when despite such artifice the witness is familiar with the accused, or his identity is not sufficiently hidden due to his physical appearance, or there are extraneous factors, recognition is facilitated. Identification becomes quite an easy task even from a considerable distance, once a person has gained familiarity with another. With regard to ABELLA, JOSEPHINE was able to recognize him as one of the abductors because he had no cover on his face and he was a good-looking guy who could easily be remembered. The alleged inconsistency between her sworn statement where she failed to mention ABELLA and her testimony in court is imaginary. JOSEPHINEs testimony was merely an amplification of her sworn statement in which she admitted: 21. T: Maliban kina BOBOT, JOEY at GENER, mayroon ka pa bang nakilala? S: Mayroon pa po akong namukhaan ngunit hindi ko alam ang kanilang mga pangalan. It is probable that she found out ABELLAs name only after the sworn statement was executed. There is no inconsistency when what the witness stated in open court are but details or additional facts not mentioned in the affidavit. EVELYN testified that she recognized the appellants as among the abductors of the victims and then proceeded to name them in court. She particularly recognized GRANADA, as she had seen him on several occasions. Her assertion that GRANADAs face was not covered, contrary to JOSEPHINEs testimony, does not detract from the fact that GRANADA was indeed one of the abductors. The handkerchief covering GRANADAs face could have fallen off in the course of the commotion. Besides, it is not to be expected that all witnesses viewed the abduction at the same stages. WILFREDO was part of the victims group when the abduction took place, but he ran for safety after one of the abductors fired warning shots. He allegedly recognized GRANADA despite the handkerchief on the latters face. GRANADAs white hair and pointed nose became rooted in WILFREDOs consciousness as GRANADA got off the van, introduced himself as a policeman, and fired two warning shots. Most often the face and body movements of the assailant create an impression which cannot be easily erased from memory. Not only was WILFREDO physically present and an eyewitness when the abduction took place, but more importantly two of the victims were his brothers. Blood relatives have a definite stake at seeing the guilty person brought before the courts so that justice may be served. It would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit. II ELENAs testimony is sufficient to convict appellants. She positively identified all the appellants as among the passengers of the Fiera and whom she saw torturing the victims. She could not have been mistaken in identifying them because she knew them very well, they being deacons of the INC. She was only four meters away when the Fiera passed by her. Her identification must have been confirmed when appellants alighted from the Fiera and proceeded to the so-called basement. Out of curiosity, she followed and stayed near the door of the basement where she saw appellants and their cohorts maul and torture the victims. Although the electric lights inside the compound were switched off she could see the culprits and the mauling of the victims, since the place was illuminated by two streetlights outside. The appellants attack, for being contrary to physical evidence, ELENAs testimony that she saw some of their cohorts, particularly Boy Valencia and Virgilio de Guzman, stab the victims. Indeed, the post -mortem examination on the bodies of the victims yielded no finding of stab wounds. This physical evidence is a mute and an eloquent manifestation of truth; it rates high in the hierarchy of trustworthy evidence. Thus, where the physical evidence runs counter to the testimony of the prosecution witness, as in this case, the former should prevail. At any rate, when asked on cross-examination whether the victims suffered stab wounds, ELENA answered, Siguro po, hindi ko po alam. ELENA must have been mistaken in her observation of the events or in her recollection. But this is understandable, as several persons were actively engaged in the mauling of the victims. It would have been highly unlikely for her to remember accurately their movements. Lapse of time blurs recollections. Human memory can be treacherous. It is a very common thing for honest witnesses to confuse their recollection of what they actually observed with what they have persuaded themselves to have happened or with impressions and conclusions not really drawn from their actual knowledge. While ELENAs testimony on the stabbing does not ring true in the face of the physical evidence, this does not mean that her entire testimony is false or had been contrived. It is significant to note that her identification of the appellants as malefactors was corroborated by the other prosecution witnesses, who pointed to them as the victims abductors. Moreover, her testimony that they and their cohorts had beaten the victims by using lead pipes and blunt instruments was corroborated by the autopsy report, which revealed that most of the victims sustained lacerated wounds, contusions and hematoma. There is a general principle of law that where a witness has testified falsely to some material matter in a case, his testimony in other respects maybe disregarded unless it is corroborated by other proof. This rule of law is expressed in the maxim Falsus in uno, falsus in omnibus. This rule, however, has its own limitations, for when the mistaken statement is consistent with good faith and is not conclusively indicative of a deliberate perversion, the believable portion of the testimony should be admitted. Although a person may err in memory or in observation in one or more respects, he may have told the truth as to other respects. Elsewise stated, the maxim deals only with the weight of evidence and is not a positive rule of universal application and should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Notwithstanding the false or mistaken statements, the trial judge, Judge Makasiar, found ELENAs version impressive, as the manner of her narration was straightforward, sincere, candid, frank and terse. Like the other prosecution witnesses, she had been subjected to searching, grueling and consuming cross-examination by a determined, brilliant, veteran and astute defense counsel, no less than retired Supreme Court Justice Serafin Cuevas, such that any falsehood and fabrication in [her] narration and identification of the four accused could have been easily detected and exposed. But she passed the test. Settled is the rule that the factual findings of the trial court, especially on the credibility of witnesses are accorded great weight and respect. This is so because the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a discovered lie, the tremulous mutter of a reluctant answer, or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. Admittedly, ELENAs testimony has some discrepancies. However, the trial court emphasized: [I]t is to be expected that some discrepancies, and even self-contradictions, will appear on cross-examination, especially where the witness is of inferior mental capacity and without any experience in court proceedings, like Elena Bernardo. The trial court correctly likened Elenas testimony against appellants, all of whom were ranking members of the Iglesia ni Cristo, as a declaration against interest. This was so because her act of testifying against them put her in danger of being expelled from the said sect. In fact, as admitted by Pastor Cesar Almedina, he and many other local officials of the Church recommended her expulsion allegedly on grounds of non- attendance at church services and violation of the teachings, doctrines, laws and tenets of the Iglesia, which were not, however, specified by him. But the recommendation was disapproved by the Central Office because of these cases. While ELENA admitted to having a grudge against GRANADA for arresting his son-in- law sometime in 1991, her identification of him as one of the perpetrators of the crime charged cannot be disregarded because it was strongly corroborated by the three other prosecution witnesses, who categorically pointed to him as one of the abductors. Her honesty in admitting her dislike against GRANADA should be considered in her favor. The existence of such grudge does not automatically render her testimony false and unreliable. It must be noted that she had no known quarrel with the other appellants to be considered as sufficient motive in implicating them. Where there is no evidence and nothing to indicate that a witness for the prosecution was actuated by improper motive, the presumption is that she was not so actuated. As to her long silence or reluctance to give her statement or to testify, ELENA explained that she was initially barred by then Judge Nitafan from testifying. Besides, there was a threat on her life by one of the suspects in the killing of herein five victims. Nevertheless, she had already reported the incident to a certain Brother Cerilo del Rosario, who replaced Pastor Almedina after the latter was transferred to another chapel, and that sometime in 1993 she went to the Central Office of the INC and related the whole event to Brother Eduardo Manalo. At any rate, the failure of a witness to report to the police authorities the crime that she had witnessed is not a matter affecting her credibility. The natural reticence of most people to get involved in a criminal case is of judicial notice. III Concededly, there were no eyewitnesses to the actual killing of the victims. But the following of circumstances leave no shred of doubt that the appellants were the perpetrators of the crime: 1. On the morning of 7 March 1992, the victims MARLON and JOSEPH had a basketball altercation with JOEY and his two companions; 2. Later that day, JOEY was caught bringing two pillboxes to Dalisay Street, where the victims reside; 3. Between 5:00 and 6:00 p.m. of 8 March 1992, JOEY and GENER, both members of the INC, threw stones at the Ronquillos house, attracting the attention of neighbors who in turn mauled them; 4. Between 8:00 and 9:00 p.m. of that same date, after the De los Santos brothers pointed at the victims, the appellants and their cohorts picked up and herded the victims into a Ford Fiera, which then sped away; 5. At about 10:00 p.m. the victims, except the one lying in the vehicle who seemed either unconscious or dead, were brought to a so-called basement in the Iglesia compound in Punta, Sta. Ana. There, they were mauled, tortured and beaten by appellants, who were deacons of the INC, as well as by their cohorts, using steel tubes, lead pipes, guns and other blunt instruments. Thereafter, they were loaded into the van, which forthwith sped out of the compound; and 6. Three days later, or on 10 March 1992, the victims bodies were found floating on the Pasig River, showing signs of foul play. These circumstances are sufficient to establish the guilt of the appellants beyond reasonable doubt of the crime charged. They constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the appellants, to the exclusion of all others, as the guilty persons. IV As for appellants defense of alibi, we have consistently held this to be the weakest of all the defenses. Appellants were unable to show that it was physically impossible for them to have been present at the scene of the crime. GRANADA, DE GUZMAN and VALENCIA claimed to have been attending the Panata rites on 8 March 1992, the date of the abduction and mauling of the five victims. However, considering that there were at least 200 members of the INC who attended the panata, it was possible for them to have sneaked out unnoticed into the Ford Fiera to Lakas Street, picked up the five victims and waited in the evening for the grounds to be deserted before bringing them inside the INC compound. Neither was ABELLA able to show by clear and convincing evidence that it was physically impossible for him to go from his alleged post at the corner of T.M. Kalaw St. and Roxas Boulevard to Lakas Street, Bacood, Sta. Mesa. Thus, appellants defense of alibi must fail. Besides, such defense is worthless in view of the positive identification of appellants as the culprits. V We agree with the trial court that the killing was characterized by treachery. It is true that treachery should normally attend at the inception of the aggression. However, when the victim was first seized and bound and then slain, treachery is present. In this case, it is enough to point out that the victims hands were tied at the back when their bodies were found floating in Pasig River. This fact clearly shows that the victims were rendered defenseless and helpless, thereby allowing the appellants to commit the crime without risk at all to their persons. The circumstance of abuse of superior strength was absorbed in treachery and cannot be considered as an independent aggravating circumstance. It need not be alleged in the information, as treachery was adequate to elevate the killing to murder. VI We cannot equate appellants move to clear their names as voluntary surrender. For a surrender to be voluntary, it must be spontaneous and should show the intent of the accused to submit himself unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) he wishes to save the government the trouble and expense necessarily included for his search and capture. In an analogous case, we have held that when the accused goes to a police station merely to clear his name and not to give himself up, voluntary surrender may not be appreciated. Lastly, we affirm the awards made by the trial court except as to the awards of moral and exemplary damages, which are, however, reduced from P500,000 to P50,000 each. WHEREFORE, the challenged decision of Branch 35 of the Regional Trial Court of Manila in Criminal Cases Nos. 96-104529 to -33 is hereby AFFIRMED with the modification that the awards of moral and exemplary damages are hereby reduced from P500,000 to P50,000 each. SO ORDERED. Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur . [G.R. No. 127444. September 13, 2000] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TIRSO D. C. VELASCO in his capacity as the Presiding Judge, RTC-Br. 88, Quezon City, and HONORATO GALVEZ, respondents.
FACTS (Remember Vinculado Massacre? Eto yun.) Mayor Galvez of San Ildefonso, Bulacan, and his body guard, Godofredi Diego was charged for the murder of Alex Vinculado and the frustrated murder of the latters twin brother, Levi Vinculado and uncle, Miguel. In addition, they were charged of illegal possession of firearms
Diego was convicted for all 4 charges, while Mayor Galvez was acquitted due to insufficiency of evidence.
The Government now questions the acquittal of Mayor Galvez by Judge Velasco, claiming there was GADALEJ, because the judge deliberately and wrongfully disregarded certain facts and evidence, which if judicially considered wouldve proven the guilt of Mayor Galvez.
ISSUE: Whether Mayor Galvez acquittal is already final and unappealable?
GOVERNMENT STAND: Appeals of acquittal (as in US v WILSON) are possible provided that the accused will not be subjected to a second trial. There is no double jeopardy because the appeal is just a continuation of the trial, not a trial de novo, as it will not result to another trial but will only examine the evidence adduced in the LC to pass final judgment on the culpability of the accused. They say that double jeopardy will only result after the judgment of the court of last resort.
RULING: PETITION DISMISSED. Mayor Galvez acquittal is already final and unappealable. An otherwise rule will violate the constitutional right against double jeopardy. The alleged error in appreciation of evidence places the case as an improper object of and therefore non-reviewable by certiorari.
Requisites of Double Jeopardy:(a) a valid complaint or information; (b) before a competent court before which the same is filed; (c) the defendant had pleaded to the charge; and, (d) the defendant was acquitted, or convicted, or the case against him dismissed or otherwise terminated without his express consent.
Double jeopardy guarantee focused on three (3) related protections: against a second prosecution for the same offense after acquittal; against a second prosecution for the same offense after conviction; and, against multiple punishments for the same offense.
The underlying rule on the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction.
The remand to a trial court of a judgment of acquittal brought before the SC on certiorari cannot be held unless there is a finding of mistrial, as in Galman v Sandiganbayan (SC then held that: The sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial, and closely monitored the entire proceedings to assure the predetermined final outcome of acquittal and absolution as innocent of all the respondent-accused). This exception only applies when the criminal trial is a sham because the prosecution representing the sovereign people was denied due process.
If the accused sought the dismissal at his own instance, it wouldve fallen under the exception, but records show that respondent trial judge based his finding of acquittal, no matter how erroneous it might seem to petitioner, upon the evidence presented by both parties. The judgment here was no less than a factual resolution of the case. Thus, to the extent that the post-verdict acquittal in Wilson was based on a ruling of law and not on a resolution of facts, Wilson is not, to reiterate, pertinent to nor persuasive in the case at bar. The same observation holds true for US v Scott--that it was the defendant who secured the dismissal of the charges against him without any submission to either judge or jury as to his guilt or innocence, but on a ground totally outside evidentiary considerations, i.e., pre-indictment delay, definitely forecloses the applicability, if not relevance, of Scott to the instant case. (Read the main case for the lengthy discussion of American jurisprudence and Constitutional Deliberations regarding double jeopardy and the exceptions)
Petition for certiorari is dismissed
D E C I S I O N BELLOSILLO, J.: This case nudges the Court to revisit the doctrine on double jeopardy, a revered constitutional safeguard against exposing the accused to the risk of answering twice for the same offense. In this case, after trial on the merits, the accused was acquitted for insufficiency of the evidence against him in the cases for murder and frustrated murder (although his co-accused was convicted), and finding in the illegal carrying of firearm that the act charged did not constitute a violation of law. But the State through this petition for certiorari would want his acquittal reversed. We narrate a brief factual backdrop. The idyllic morning calm in San Ildefonso, Bulacan, a small town north of Manila, was shattered by gunshots fired in rapid succession. The shooting claimed the life of young Alex Vinculado and seriously maimed his twin brother Levi who permanently lost his left vision. Their uncle, Miguel Vinculado, Jr. was also shot. A slug tunneled through his right arm, pierced the right side of his body and burrowed in his stomach where it remained until extracted by surgical procedure. As a consequence, three (3) criminal Informations - one (1) for homicide and two (2) for frustrated homicide - were originally filed before the Regional Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San Ildefonso, and Godofredo Diego, a municipal employee and alleged bodyguard of the mayor. On 14 December 1993, however, the charges were withdrawn and a new set filed against the same accused upgrading the crimes to murder (Crim. Case No. 4004-M-93) and frustrated murder (Crim. Cases Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was charged, in addition, with violation of PD 1866 (Crim. Case No. 4007-M-94) for unauthorized carrying of firearm outside his residence; hence, a fourth Information had to be filed. After a series of legal maneuvers by the parties, venue of the cases was transferred to the Regional Trial Court of Quezon City, Metro Manila. There the cases were stamped with new docket numbers (Nos. Q-94-55484, Q-94-55485, Q-94-55486 and Q-94-55487, respectively), and raffled to Branch 103 presided over by Judge Jaime Salazar, Jr. In the course of the proceedings, the judge inhibited himself and the cases were re-raffled to respondent Judge Tirso D.C. Velasco of Branch 89. On 8 October 1996 a consolidated decision on the four (4) cases was promulgated. The trial court found the accused Godofredo Diego guilty beyond reasonable doubt of the crimes of murder and double frustrated murder. However, it acquitted Mayor Honorato Galvez of the same charges due to insufficiency of evidence. It also absolved him from the charge of illegal carrying of firearm upon its finding that the act was not a violation of law. The acquittal of accused Honorato Galvez is now vigorously challenged by the Government before this Court in a Petition for Certiorari under Rule 65 of the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the submission of petitioner that the exculpation of the accused Galvez from all criminal responsibility by respondent Judge Tirso Velasco constitutes grave abuse of discretion amounting to lack of jurisdiction. Allegedly, in holding in favor of Galvez, the judge deliberately and wrongfully disregarded certain facts and evidence on record which, if judiciously considered, would have led to a finding of guilt of the accused beyond reasonable doubt. Petitioner proposes that this patently gross judicial indiscretion and arbitrariness should be rectified by a re-examination of the evidence by the Court upon a determination that a review of the case will not transgress the constitutional guarantee against double jeopardy. It is urged that this is necessary because the judgment of acquittal should be nullified and substituted with a verdict of guilt. The main hypothesis of the Government is that elevating the issue of criminal culpability of private respondent Galvez before this Tribunal despite acquittal by the trial court should not be considered violative of the constitutional right of the accused against double jeopardy, for it is now settled constitutional doctrine in the United States that the Double Jeopardy Clause permits a review of acquittals decreed by US trial magistrates where, as in this case, no retrial is required should judgment be overturned. Since Philippine concepts on double jeopardy have been sourced from American constitutional principles, statutes and jurisprudence, particularly the case of Kepner v. United States, and because similarly in this jurisdiction a retrial does not follow in the event an acquittal on appeal is reversed, double jeopardy should also be allowed to take the same directional course. Petitioner in this regard urges the Court to take a second look at Kepner, it being the "cornerstone of the battlement of the Double Jeopardy Clause" in the Philippines and seriously examine whether the precedents it established almost a century ago are still germane and useful today in view of certain modifications wrought on the doctrine by the succeeding American cases of United States v. Wilson and United States v. Scott. Two (2) threshold issues therefore, interlocked as they are, beg to be addressed. One is the propriety of certiorari as an extraordinary mode of review under Rule 65 of the Rules of Court where the result actually intended is the reversal of the acquittal of private respondent Galvez. The other is the permissibility of a review by the Court of a judgment of acquittal in light of the constitutional interdict against double jeopardy. The recent untimely demise of respondent Galvez at the hands of alleged assassins (not discounting too the earlier dismissal of respondent judge from the service) may arguably have rendered these matters moot and academic, thus calling for a dismissal of the petition on this basis alone. The Court however is not insensitive to nor oblivious of the paramount nature and object of the pleas forcefully presented by the Government considering especially the alleged new directions in American jurisprudence taken by the doctrine of double jeopardy. We are thus impelled to respond to the issues advanced by petitioner for these bear unquestionably far- reaching contextual significance and implications in Philippine juristic philosophy and experience, demanding no less, explicit and definitive rulings. For it may be argued from a historico-analytical perspective that perhaps none of the constitutionally ensconced rights of men has followed a more circuitous and tortuous route in the vast sea of jurisprudence than the right of a person not to be tried or prosecuted a second time for the same offense. This prohibition does not consist merely of one rule but several, each rule applying to a different situation, each rule marooned in a sea of exceptions. It must have been this unique transpiration that prompted even the redoubtable Mr. Justice Rehnquist of the U.S. Supreme Court to remark in Albernaz v. United States that "the decisional law (in the area of double jeopardy) is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." It is therefore necessary that, in forming a correct perspective and full understanding of the doctrine on double jeopardy and the rules so far established relative to the effect thereon of appeals of judgments of acquittal, a compendious review of its historical growth and development be undertaken. This approach is particularly helpful in properly situating and analyzing landmark interpretive applications of the doctrine in light of the varying legal and factual milieu under which it evolved. Jeopardy, itself "a fine poetic word," derives from the Latin "jocus" meaning joke, jest or game, and also from the French term "jeu perdre" which denotes a game that one might lose. Similarly, the Middle English word "iuparti" or "jupartie" means an uncertain game. The genesis of the concept itself however rests deep in the ancient Grecian view of tragedy and suffering and in the old Roman legal concepts of punishment. Greek law bound prosecutor and judge to the original verdict as can be seen in the remark of Demosthenes in 355 B. C. that "the laws forbid the same man to be tried twice on the same issue." The Justinian Digest providing that "(a) governor should not permit the same person to be again accused of crime of which he has been acquitted," suggests certain philosophical underpinnings believed to have been influenced by works of the great Greek tragedians of the 5th century B.C. reflecting mans "tragic vision" or the tragic view of life. For the ancient Greeks believed that man was continuously pitted against a superior force that dictated his own destiny. But this prevailing view was not to be taken in the sense of man passing from one misfortune to another without relief, as this idea was repugnant to Greek sensibilities. Rather, it expressed a universal concept of catharsis or vindication that meant misfortune resolving itself into a final triumph, and persecution, into freedom and liberation. To suffer twice for the same misfortune was anathema to ancient thought. The 18th century B. C. Babylonian king and lawgiver Hammurabi recognized that humans could err in prosecuting and rendering judgment, thus limits were needed on prosecutors and judges. A gruesome but effective way of preventing a second trial by the same prosecutor after an acquittal can be found in the first law of the Hammurabic Code: "If a man has accused a man and has charged him with manslaughter and then has not proved [it against him], his accuser shall be put to death." The repugnance to double trials strongly expressed by the Catholic Church is consistent with the interpretation by St. Jerome in 391 A. D. of the promise by God to his people through the prophet Nahum that "(a)ffliction shall not rise up the second time" and "(t)hough I have afflicted thee, I will afflict thee no more." Taken to mean that God does not punish twice for the same act, the maxim insinuated itself into canon law as early as 847 A. D., succintly phrased as "(n)ot even God judges twice for the same act." The most famous cause clbre on double jeopardy in the Middle Ages was the dispute between the English King Henry II and his good friend, Thomas Becket, Archbishop of Canterbury. Henry wished to continue the observance of certain customs initiated by his predecessors called "avitae consuetudines," one of the known purposes of which was that clerics convicted of crimes before Church courts be delivered to lay tribunals for punishment. He asserted in the Constitutions of Clarendon that the clergy were also subject to the kings punishment. This was met with stinging criticism and stiff opposition by the Archbishop who believed that allowing this practice would expose the clergy to double jeopardy. The issue between the two erstwhile friends was never resolved and remained open-ended, for Thomas was later on mercilessly murdered in his cathedral, allegedly at the instance of his king. It was in England though, a century ago, that double jeopardy was formally institutionalized "as a maxim of common law" based on the universal principles of reason, justice and conscience, about which the Roman Cicero commented: "Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations, it is the same." But even as early as the 15th century, the English courts already began to use the term "jeopardy" in connection with the doctrine against multiple trials. Thereafter, the principle appeared in the writings of Hale (17th c.), Lord Coke (17th c.) and Blackstone (18th c.). Lord Coke for instance described the protection afforded by the rule as a function of three (3) related common law pleas: autrefois acquit, autrefois convict and pardon. In Vauxs Case, it was accepted as established that "the life of a man shall not be twice put in jeopardy for one and the same offense, and that is the reason and cause that autrefois acquitted or convicted of the same offense is a good plea x x x x" Blackstone likewise observed that the plea of autrefois acquit or a formal acquittal is grounded on the universal maxim of the common law of England that "(n)o man is to be brought into jeopardy of his life more than once for the same offense. And hence, it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment, or other prosecution before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime. The English dogma on double jeopardy, recognized as an indispensable requirement of a civilized criminal procedure, became an integral part of the legal system of the English colonies in America. The Massachusetts Body of Liberties of 1641, an early compilation of principles drawn from the statutes and common law of England, grandly proclaimed that "(n)o man shall be twise sentenced by Civill Justice for one and the same crime, offence or Trespasse" and that "(e)verie Action betweene partie and partie, and proceedings against delinquents in Criminall causes shall be briefly and destinctly entered on the Rolles of every Court by the Recorder thereof." Ineluctably, this pronouncement became the springboard for the proposal of the First Congress of the United States that double jeopardy be included in the Bill of Rights. It acknowledged that the tradition against placing an individual twice in danger of a second prosecution for the same offense followed ancient precedents in English law and legislation derived from colonial experiences and necessities. Providing abundant grist for impassioned debate in the US Congress, the proposal was subsequently ratified as part of the Fifth Amendment to the Constitution. In 1817 the Supreme Court of Tennessee dismissed an appeal by the State after an acquittal from perjury, declaring that: A writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of common law that no one shall be brought twice into jeopardy for one and the same offense. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule, a new trial cannot be granted in a criminal case where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. Verily, these concepts were founded upon that great fundamental rule of common law, "Nemo debet bis vexari pro una et eadem causa," in substance expressed in the Constitution of the United States as: "Nor shall any person be subject for the same offense, to be twice put into jeopardy of life or limb." It is in the spirit of this benign rule of the common law, embodied in the Federal Constitution - a spirit of liberty and justice, tempered with mercy - that, in several states of the Union, in criminal cases, a writ of error has been denied to the State. The relationship between the prohibition against second jeopardy and the power to order a new trial following conviction or dismissal stirred a no small amount of controversy in United States v. Gibert. There, Mr. Justice Story, on circuit, declared that "the court had no power to grant a new trial when the first trial had been duly had on a valid indictment before a court of competent jurisdiction." The opinion formulated was that the prohibition against double jeopardy applied equally whether the defendant had been acquitted or convicted. But it must be noted that even in those times, the power to grant a new trial in the most serious cases was already being exercised by many American courts, the practice having been observed from an early date, in spite of provisions of law against double jeopardy. For this reason, the rule in Gibert was stoutly resisted. As if to taunt Gibert, the 1839 case of United States v. Keen declared that the constitutional provision did not prohibit a new trial on defendants motion after a conviction. In Hopt v. Utah, the defendant was retried three (3) times following reversals of his convictions. Then in 1896 the U.S. Supreme Court in United States v. Ball affirmed that the double jeopardy rule did not prevent a second trial when, on appeal, a conviction had been set aside. It declared that a defendant who procured on appeal a reversal of a judgment against him could be tried anew upon the same indictment or upon another indictment for the same offense of which he had been convicted. This principle of autrefois convict was expanded nine (9) years later in Trono v. United States where the Court affirmed the judgment of the Supreme Court of the Philippines by holding that "since the plaintiffs in error had appealed their convictions of the lower offense in order to secure a reversal, there was no bar to convicting them of the higher offense in proceedings in the appellate court that were tantamount to a new trial." Mr. Justice Peckham, holding for the Court, concluded that "the better doctrine is that which does not limit the court or the jury upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy and acts upon the original judgment as if it had never been." It was ratiocinated that the result was justified not only on the theory that the accused had waived their right not to be retried but also on the ground that "the constitutional provision was really never intended to x x x cover the case of a judgment x x x which has been annulled at the request of the accused x x x x" It must be stressed though that Ball also principally ruled that it had long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendants jeopardy, and, even when not followed by any judgment, is a bar to a subsequent prosecution for the same offense. It is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal, even though an acquittal may appear to be erroneous. In 1891 the United States Judiciary Act was passed providing that appeals or writs of error may be taken from the district court or from the existing circuit courts direct to the Supreme Court in any case that involved the construction of the Constitution. The following year an issue was raised in United States v. Sanges on whether this Act conferred upon the government the right to sue out a writ of error in any criminal case. In that case, existing rules on double jeopardy took a significant turn when the United States Supreme Court observed that while English law was vague on the matter, it had been settled by overwhelming American authority that the State had no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law. The Court noted that in a few states, decisions denying a writ of error to the State after a judgment for the defendant on a verdict of acquittal proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of the constitutional provision. Sanges therefore fixed the rule that absent explicit legislative authority, the United States Government had no right of appeal in criminal cases in case of an acquittal as it would expose the defendant twice to jeopardy. Notably, however, in 1892 the Attorneys General of the United States began to recommend the passage of legislation allowing the Government to appeal in criminal cases. Their primary objective was to resist the power of a single district judge (under the law then obtaining) by dismissing an indictment to defeat any criminal prosecution instituted by the Government. No action was taken on the proposal until 1906 when President Theodore Roosevelt in his annual message to the US Congress demanded the enactment of legislation on the matter. Consequently, on 2 March 1907 such legislative authority was provided when the Criminal Appeals Act became a law 40 Ch. 2564, 34 Stat. 1246.40 permitting the United States to seek a writ of error from the Supreme Court from any decision dismissing all indictment on the basis of the "invalidity or construction of the statute upon which the indictments is founded." The law narrowed the right to appeal by the Government to cases in which the ground of the District Courts decision was invalidity or construction of the statute upon which the charge was founded, and that a verdict in favor of the defendant based on evidence could not be set aside on appeal no matter how erroneous the legal theory upon which it may be based. For these purposes, it made no difference whether the verdict be the result of the jurys decision or that of the judge. In other words, Government could appeal from a decision dismissing an indictment or arresting judgment on the basis of the statutory invalidity or misconstruction of the pertinent criminal statute and from a decision sustaining a special plea in bar, so long as the defendant would not be put in jeopardy. On 10 December 1898 the Philippine Islands was ceded by Spain to the United States by virtue of the Treaty of Paris of 1898 which was ratified by the State Parties on 11 April 1899. The Islands was placed under military rule until the establishment of the Philippine Commission in 1902. On 23 April 1900 the military government issued General Order No. 58 which amended the Code of Criminal Procedure then in force by, among others, extending to the Islands the double jeopardy provision under the Fifth Amendment of the US Constitution. This was pursuant to the 7 April 1900 Instructions of President McKinley issued to the Philippine Commission headed by William Howard Taft. The Instructions read in part: x x x the Commission should bear in mind, and the people of the Islands should be made to understand, that there are certain great principles of government which have been made the basis of our governmental system, which we deem essential to the rule of law x x x and maintained in their islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar x x x x Upon every division and branch of the Government of the Philippines therefore must be imposed these inviolable rules: x x x that x x x no person shall be put twice in jeopardy for the same offense x x x x" General Order No. 58 was amended by Act No. 194 which permitted an appeal by the government after acquittal. The Philippine Civil Government Act of 1 July 1902 of the U.S. Congress repealed the Act, adopted and restored the same principle in Gen. Order No. 58 as enunciated in the Fifth Amendment and in McKinleys Instructions by providing immunity from second jeopardy for the same criminal offense. It did not take long however for the meaning and significance of the doctrine held forth in McKinleys Instructions to be placed under severe test and scrutiny. In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila, Philippines, was charged with embezzlement of funds (estafa). He was tried by a court of first instance, minus a jury, and was acquitted of the crime. The U.S. Government appealed to the Supreme Court of the Philippine Islands and judgment was reversed. Kepner was sentenced with imprisonment and suspended from public office or place of trust. Questioning his conviction before the US Supreme Court, Kepner argued that the appeal by the US government to the Philippine Supreme Court of his judgment of acquittal constituted double jeopardy construed in light of existing US jurisprudence. On the other hand, the Attorney General for the Philippines and the Solicitor General of the United States jointly contended that the Philippine Bill of 1 July 1902 which included the prohibition against double jeopardy should be construed from the perspective of the system of laws prevailing in the Philippines prior to its cession to the United States. Under this system, the Audiencia (Supreme Court) could entertain an appeal of a judgment of acquittal since the proceedings before it were regarded not as a new trial but an extension of preliminary proceedings in the court of first instance. The entire proceedings constituted one continuous trial and the jeopardy that attached in the court of first instance did not terminate until final judgment had been rendered by the Audiencia. Double jeopardy was described not only in the Spanish law Fuero Real as: After a man accused of any crime has been acquitted by the court, no one can afterwards accuse him of the same offense (except in certain specified cases), but also in the Siete Partidas which provided that: If a man is acquitted by a valid judgment of any offense of which he has been accused, no other person can afterwards accuse him of the offense x x x x Under this system of law, a person was not regarded as jeopardized in the legal sense until there had been a final judgment in the court of last resort. The lower courts then were deemed examining courts, exercising preliminary jurisdiction only, and the accused was not finally convicted or acquitted until the case had been passed upon in the Audiencia or Supreme Court, whose judgment was subject to review by the Supreme Court in Madrid (Spain) for errors of law, with power to grant a new trial. The U.S. Supreme Court however threw out the Governments argument and held that the proceedings after acquittal had placed the accused Kepner twice in jeopardy. It declared in no uncertain terms that the appeal of the judgment of conviction was in essence a trial de novo and that, whatever the Spanish tradition was, the purpose of Congress was to carry some at least of the essential principles of American constitutional jurisprudence to the Islands and to engraft them upon the law of these people newly subject to its jurisdiction. There was little question therefore that Kepner soldered into American jurisprudence the precedent that as to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. x x x (I)t is then the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not x x x against the peril of second punishment, but against being tried again for the same offense." This doctrine was echoed in United States v. Wills where the Court further clarified that jeopardy implies an exposure to a lawful conviction for an offense of which a person has already been acquitted x x x x It was reiterated in 1957 in Green v. United States in which Mr. Justice Black, writing for the Court, professed that the constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Thus, under the Fifth Amendment, a verdict of acquittal was considered final, ending the accuseds jeopardy and that once a person has been acquitted of an offense, he cannot be prosecuted again on the same charge. American jurisprudence on the effect of appealed acquittals on double jeopardy since then sailed on, following the main sea lanes charted by Kepner, but not without encountering perturbance along the way. For it may be mentioned, albeit en passant, that the case of Bartkus v. Illinois did cause some amount of judicial soul-shaking in 1959 when it burst into the scene. Alfonse Bartkus was tried before a federal district court in Illinois and was later acquitted by the jury. Less than a year later, Bartkus was indicted this time by an Illinois grand jury on facts substantially identical to those of the federal charge and was subsequently convicted. His conviction was affirmed by the Illinois Supreme Court. On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4, affirmed the conviction. The Court, speaking through Mr. Justice Frankfurter, declared that the Fifth Amendments double jeopardy provision was inapplicable to states so that an acquittal of a federal indictment was no bar to a prosecution by a state based on the same charge. Since there was no proof offered to show that the participation of the federal authorities in the Illinois state prosecution was of such nature as to render the state proceedings a mere cover for a federal prosecution to render the state indictment essentially a constitutionally prohibited second prosecution, no double jeopardy attached. Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren and Mr. Justice Douglas, with Mr. Justice Brennan writing a separate dissenting opinion. Black rued that the Courts ruling by a majority of one only resulted in "further limiting the already weakened constitutional guarantees against double prosecution," citing the earlier case of United States v. Lanza, where the Court allowed the federal conviction and punishment of a man previously convicted and punished for identical acts by a state court. The dissent called attention to the fact that in Bartkus, for the first time in its history, the Court allowed the state conviction of a defendant already acquitted of the same offense in the federal court. This, Mr. Justice Black asserted, was unacceptable, for as the Court previously found in Palko v. Connecticut, "double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment since some of the privileges and immunities of the Bill of Rights . . . have been taken over and brought within the Fourteenth Amendment by process of absorption x x x x One may infer, from the fewness of the cases, that retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction." Whether such forceful pronouncements steered back into course meandering views on double jeopardy is open to question. Nonetheless, the case of Fong Foo v. United States, decided per curiam, reaffirmed the pronouncements in Ball and Kepner that "the verdict of acquittal was final, and could not be reviewed x x x without putting (the petitioners) twice in jeopardy, and thereby violating the Constitution." In the meantime, from 1907 up to 1970 the Criminal Appeals Act underwent significant alterations. The 1942 amendment of its Section 682 permitted for the first time appeals to the circuit appeals court from orders sustaining demurrer to indictment in cases not directly appealable to the Supreme Court. However, due to the many modifications the law was subjected to, construction and interpretation became more laborious, effectively transforming appeals into highly technical procedures. As such, the Criminal Appeals Act developed into a judicial bete noire, for even the U.S. Supreme Court itself had "to struggle in a number of occasions with the vagaries of the said Act." In one of those unhappy efforts, it concluded that the Act was "a failure x x x a most unruly child that has not improved with age." The U.S. Congress finally got rid of the dismal statute in 1970 and replaced it with a new Criminal Appeals Act intended to broaden the right of Government to appeal whenever the Constitution would permit. It was apparent that the legislative body left to the courts the prerogative to draw the constitutional limits of double jeopardy rather than define them itself. Since then, pronouncements by the courts on the jouble jeopardy guarantee of the Fifth Amendment focused on three (3) related protections: against a second prosecution for the same offense after acquittal; against a second prosecution for the same offense after conviction; and, against multiple punishments for the same offense. In Wilson, the Court expressed that the interests underlying these three (3) protections are quite similar. Thus, when a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he be not subjected to the possibility of further punishment by being tried or sentenced for the same offense. And when a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." It can thus be inferred from these cases that the policy of avoiding multiple trials has been considered paramount so that exceptions to the rule have been permitted only in few instances and under rigid conditions. Accordingly, in United States v. Scott the US Supreme Court synthesized two (2) venerable principles of double jeopardy jurisprudence: first, the successful appeal of a judgment of conviction on any ground other than the insufficiency of the evidence to support the verdict poses no bar to further prosecution on the same charge; and second, a judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. It would seem that the conditionality of when a second trial would be necessitated by a reversal was attached thereto because ordinarily, the procedure obtaining was that if on appeal a judgment of acquittal is reversed, i. e., a finding is had against the defendant, a remand of the case for another trial may be allowed if needed. At this juncture, it must be explained that under existing American law and jurisprudence, appeals may be had not only from criminal convictions but also, in some limited instances, from dismissals of criminal charges, sometimes loosely termed "acquittals." But this is so as long as the judgments of dismissals do not involve determination of evidence, such as when the judge: (a) issues a post-verdict acquittal, i.e., acquits the defendant on a matter of law after a verdict of guilty has been entered by a trier of facts (a jury); (b) orders the dismissal on grounds other than insufficiency of evidence, as when the statute upon which the indictment was based is defective; (c) conducts a judicial process that is defective or flawed in some fundamental respect, such as incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct; (d) issues an order arresting judgment, i.e., an act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment; or, (e) pronounces judgment on a special plea in bar (a non obstante plea) - one that does not relate to the guilt or innocence of the defendant, but which is set up as a special defense relating to an outside matter but which may have been connected with the case. Interestingly, the common feature of these instances of dismissal is that they all bear on questions of law or matters unrelated to a factual resolution of the case which consequently, on appeal, will not involve a review of evidence. Its logical effect in American law is to render appeals therefrom non- repugnant to the Double Jeopardy Clause. This contextual situation in which appeals from dismissals of criminal cases are allowed under American rules of procedure does not obtain in the Philippines. To be sure, United States v. Scott positively spelled out that if an acquittal was based on an appreciation of the evidence adduced, no appeal would lie. Mr. Justice Rehnquist explained that what may seem superficially to be a "disparity in the rules governing a defendants liability to be tried again" refers to the underlying purposes of the Double Jeopardy Clause. He elaborated that "(a)s Kepner and Fong Foo illustrate, the law attaches particular significance to an acquittal. To permit a second trial after an acquittal however mistaken x x x would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that even though innocent he may be found guilty. x x x x On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked the statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the x x x Clause was intended to protect." In proposing a re-evaluation of Philippine jurisprudence on double jeopardy, petitioner insists that Wilson and Scott have unquestionably altered the seascape of double jeopardy previously navigated by Kepner and Ball. Using as its flagship the pronouncement in Wilson that appeals of acquittal are possible provided the accused will not be subjected to a second trial, it argues that this should apply to the case at bar because, anyway, a review of the acquittal of private respondent Honorato Galvez will not result in another trial inasmuch as the Court will only have to examine the evidence adduced below to pass final judgment on the culpability of the accused. Petitioners own hermeneutic sense of the phrase "another trial" is that which solely adverts to a proceeding before a competent trial court that rehears the case and receives evidence anew to establish the facts after the case has been finally disposed of by the Supreme Court. Obviously, it adheres to the Holmesian hypothesis in Kepner and, for that matter, the concept under Spanish law then applicable in the Philippines before the American colonization, that a trial consists of one whole continuing process from reception of evidence by a trier of facts up to its final disposition by the Supreme Court. But petitioner conveniently forgets that this theory has been consistently spurned by both American and Philippine jurisprudence that has faithfully adhered to the doctrine that an appeal of a judgment after the defendant had been acquitted by the court in a bench trial is, quintessentially, a new trial. In Kepner, the Court regarded the two (2) events, i. e., trial by the lower court and the appellate proceedings, as equivalent to two (2) separate trials, and the evil that the Court saw in the procedure was plainly that of multiple prosecutions. Although Kepner technically involved only one proceeding, the Court deemed the second factfinding, that is, the review by the appellate court, as the equivalent of a second trial. Accordingly, in subsequent cases, the Court has treated the Kepner principle as being addressed to the evil of successive trials. No less than the case of Wilson, petitioners main anchor for its propositions, affirms this rule. There, the Court emphasized that it has, up to the present, rejected the theory espoused by the dissenting Mr. Justice Holmes in Kepner that " a man cannot be said to be more than once in jeopardy in the same cause however often he may be tried. The jeopardy is one continuing jeopardy, from its beginning to the end of the cause." It declared unequivocally that "we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal." Wilson therefore pronounced that if acquittal is declared on the basis of evidence adduced, double jeopardy attaches for that particular cause. To explain further, Wilson involved an appeal by Government of a post-verdict ruling of law issued by the trial judge resulting in the acquittal of the defendant due to pre-indictment delay (a delay between the offense and the indictment prejudiced the defendant) after a verdict of guilty had been entered by the jury. But it was not an acquittal that involved factual resolution. It was one anchored on an extraneous cause. Factual resolution is defined in United States v. Sorenson following the rulings in Ball, Fong Foo and Sisson as the finding that government failed to prove all the elements of the offense. It is clear therefore that the acquittal of Wilson, not being based on evidence, could be appealed. The rule therefore fixed in Wilson is that where a judge holds for the defendant on a ruling of law, and not on the basis of evidence, after a jury entered a verdict of guilty, the prosecution may appeal the acquittal without violating double jeopardy, as this is allowed under the pertinent law. This is so since no second trial will ensue, as a reversal on appeal would merely reinstate the jurys verdict. And if the prosecution is upheld, the case simply goes back to the trial court for disposition of the remaining matters. It bears emphasis that in Wilson, no double jeopardy problem was presented because the appellate court, upon reviewing the asserted legal errors of the trial judge, could simply order the jurys guilty verdict reinstated, no new factfinding would be necessary, and the defendant would not be put twice in jeopardy. The case of Scott, also considerably relied upon by petitioner, involved an accused who, having been indicted for several offenses, himself moved for the dismissal of two (2) counts of the charges on the ground that his defense was prejudiced by pre-indictment delay. The trial judge granted the motion. Government appealed the dismissals but the appellate court rejected the appeal on the basis of double jeopardy. This time the US Supreme Court reversed, holding that "(w)here a defendant himself seeks to avoid his trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not offended by a second prosecution. Such a motion by the defendant is deemed to be a deliberate election on his part to forego his valued right to have his guilt or innocence determined by the first trier of facts." The inapplicability of this ruling to the case at bar is at once discernible. The dismissal of the charges against private respondent Galvez was not upon his own instance; neither did he seek to avoid trial, as it was in Scott, to be considered as having waived his right to be adjudged guilty or innocent. Here, trial on the merits was held during which both government and accused had their respective day in court. We are therefore insufficiently persuaded to adopt petitioners concept of "another trial" because, as discussed above, it disregards the contextual interpretation of the term in light of the legal and factual morphology of the double jeopardy principle obtaining in Wilson and Scott. To sum up, in the cause before us, the records show that respondent trial judge based his finding of acquittal, no matter how erroneous it might seem to petitioner, upon the evidence presented by both parties. The judgment here was no less than a factual resolution of the case. Thus, to the extent that the post-verdict acquittal in Wilson was based on a ruling of law and not on a resolution of facts, Wilson is not, to reiterate, pertinent to nor persuasive in the case at bar. The same observation holds true for Scott. That it was the defendant who secured the dismissal of the charges against him without any submission to either judge or jury as to his guilt or innocence, but on a ground totally outside evidentiary considerations, i.e., pre-indictment delay, definitely forecloses the applicability, if not relevance, of Scott to the instant case. Wilson, Scott and all other pertinent American case law considered, it still behooves us to examine if at this time there is need to rethink our juristic philosophy on double jeopardy vis-- vis acquittals. In this respect, it would be instructive to see how Philippine law and jurisprudence have behaved since Kepner. Has the principle since then beneficially evolved, or has it remained an "unruly child that has not improved with age?" The moorings of double jeopardy in the Philippines, as Mr. Justice Manuel Moran observed in People v. Tarok, are not indigenous but are a matter of constitutional or statutory history. Enunciated in the Constitution of the United States, from there it found its way into this country, first, in the Philippine Bill of 1902, then in the Jones Law of 1916, and finally, in the 1935 Philippine Constitution. Being thus a mere recognition of the maxim of the common law, and adopted from the Constitution of the United States, the principle of double jeopardy followed in this jurisdiction the same line of development - no narrower nor wider - as in the Anglo-Saxon jurisprudence. While some reservations may be had about the contemporary validity of this observation considering the variety of offsprings begotten, at least in the United States, by the mother rule since then, perhaps it is safer to say that not much deviation has occurred from the general rule laid out in Kepner. For Kepner may be said to have been the lighthouse for the floundering issues on the effect of acquittals on jeopardy as they sail safely home. The cases of People v. Bringas, People v. Hernandez, People v. Montemayor, City Fiscal of Cebu v. Kintanar, Republic v. Court of Appeals, and Heirs of Tito Rillorta v. Firme, to name a few, are illustrative. Certainly, the reason behind this has not been due to a stubborn refusal or reluctance to keep up with the Joneses, in a manner of speaking, but to maintain fidelity to the principle carefully nurtured by our Constitution, statutes and jurisprudence. As early as Julia v. Sotto the Court warned that without this safeguard against double jeopardy secured in favor of the accused, his fortune, safety and peace of mind would be entirely at the mercy of the complaining witness who might repeat his accusation as often as dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his own will and pleasure. The 1935 Philippine Constitution provided in its Sec. 20, Art. III, that "(n)o person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." The discussions by the members of the Constitutional Convention of 1934 on the effect on double jeopardy of an appeal from a judgment of acquittal are enlightening. Foreclosing appeal on a judgment of acquittal was recognized by the Convention and the proposal to make an appeal from acquittal permissible even only "on questions of law provided that a verdict in favor of the defendant shall not be set aside by reason thereof" was strongly voted down. Thus - MR. GULLAS: Dear Colleagues x x x x I wish to summarize our points. The amendment is commendable, but we submit that the reason against far outweighs the reason in favor of it. In the first place, it would tend to multiplicity of suits and thus increase the burden of the Supreme Court. Second, suits will be expensive if we meet fiscals who have an exaggerated opinion of themselves, who have more ego than gray matter or more amor propio. In the third place, as has been stated by a certain Gentleman, the provision would convert the Supreme Court into a sort of academy of consulting body. In the fourth place, as pointed out by Mr. Sevilla, fights in the Supreme Court would be one-sided. In the fifth place, as demonstrated by Delegate Labrador, the matter should be procedural rather than constitutional. And lastly, as explained by Delegate Singson Encarnacion, should the Supreme Court reverse the judgment of the lower court, the defendant would suffer morally for the rest of his life. He would walk around under a veil of humiliation, carrying with him a stigma. For all these reasons, Mr. President, we oppose the amendment. PRESIDENT: We can vote on the amendment. (Various delegates: YES). Those who are in favor of the amendment please say YES. (A minority: YES). Those against the amendment say NO. (A majority: NO). The amendment is rejected x x x x (1934 Constitutional Convention Record, Journal No. 95, November 24, 1934, p. 361) The case of People v. Bringas was the first case to be decided under this Constitution pertinent to the matter at hand. There the Supreme Court, guided by Kepner, cited its finding in United States v. Tam Yung Way against the right of appeal by the government from a judgment discharging the defendant in a criminal case after he has been brought to trial, whether defendant was acquitted on the merits or whether his discharge was based upon the trial courts conclusion of law that the trial had failed for some reason to establish his guilt as charged. The Bill of Rights of the 1973 Constitution, specifically Sec. 22, Art. IV thereof, reproduced verbatim the same double jeopardy provision of the 1935 Constitution. So did the 1987 Freedom Constitution drafted by the 1986 Constitutional Commission. Noteworthy is that during the deliberations by the 1986 Constitutional Commission attempts were made to introduce into the Fundamental Law the right of government to appeal verdicts of acquittal promulgated by trial courts. The proposed text for Sec. 14, Art. VIII, on the Judicial Department read as follows - Sec. 12. - x x x x An appeal by the State and/or offended party from a judgment of acquittal may be allowed in the discretion of the Supreme Court by a petition for review on certiorari on the ground that it is manifestly against the evidence with grave abuse of discretion amounting to lack of jurisdiction. This proposal was strongly opposed, the controlling consideration as expressed by Commissioner Rustico de los Reyes being the "inequality of the parties in power, situation and advantage in criminal cases where the government, with its unlimited resources, trained detectives, willing officers and counsel learned in the law, stands arrayed against a defendant unfamiliar with the practice of the courts, unacquainted with their officers or attorneys, often without means and frequently too terrified to make a defense, if he had one, while his character and his life, liberty or property rested upon the result of the trial." Commissioner Joaquin Bernas likewise articulated his fear that we could be subjecting an accused individual to a very serious danger of harassment from a prosecutor x x x x The harm, however, which will follow from waving this flag of possibility of appeal x x x could be much more than letting a guilty person go." Put to a vote, the proposal was defeated. Then again, during the debates on double jeopardy under Sec. 23, Art. III, on the Bill of Rights of the Constitution, Commissioner Ambrosio B. Padilla reopened the matter already settled at the deliberations on the article on the Judiciary. The following exchanges ensued: MR. PADILLA. x x x On Section 23, on double jeopardy, there was Davide resolution which allowed an appeal in a judgment of acquittal in a criminal case that states: An acquittal by a trial court is, however, appealable provided that in such event, the accused shall not be detained or put up bail. This has been deleted by the Commission x x x x FR. BERNAS. Yes. MR. PADILLA. I recall that when this same idea, but in different phraseology, was presented and approved by the Committee on the Judiciary, the great objection was that it would violate the immunity against double jeopardy. But I recall, the sponsor admitted, after I had explained the day before, that it did not violate double jeopardy but it was unnecessary and harmful. What is the real position, Mr. Presiding Officer? Is it in violation of double jeopardy or is it just because it need not be stated in the Bill of Rights nor in the Article on the Judiciary? FR. BERNAS: I explained my position on that, Mr. Presiding Officer, when we considered the matter in the Article on the Judiciary. The position I took was that it was not a departure from existing jurisprudence. In fact, it was more strict than existing jurisprudence in that it required not just abuse of discretion but it also required that the judgment be clearly against the evidence. MR. PADILLA. That is correct, Mr. Presiding Officer, because we want to make the exercise of that right by the state or offended party restrictive not only through a petition for review on certiorari in the discretion of the Supreme Court which may dismiss it outright, but also on certain grounds that are really covered by "in excess or lack of jurisdiction." But my common impression, Mr. Presiding Officer, is that most lawyers are of the opinion that when a judgment of acquittal is rendered by a trial court, that is final, executory and not appealable. Does not the sponsor think, Mr. Presiding Officer, an appeal from an arbitrary judgment of acquittal rendered by a few corrupt judges of the offended party or the state will improve the administration of justice? FR. BERNAS. Mr. Presiding Officer, I have expressed my position on this when we voted on Third Reading on the Article on the Judiciary. But if the Commissioner wants to raise the matter for reconsideration, he can present a motion on the floor. Padilla did not ask for a reconsideration. The Rules of Court on Criminal Procedure relative to double jeopardy and the effect thereon of acquittals adhere strictly to constitutional provisions. The pertinent portions of Sec. 7 of Rule 117 thereof provide - 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 x x x x From this procedural prescription alone, there can be no mistaking the requisites for invoking double jeopardy: (a) a valid complaint or information; (b) before a competent court before which the same is filed; (c) the defendant had pleaded to the charge; and, (d) the defendant was acquitted, or convicted, or the case against him dismissed or otherwise terminated without his express consent. It bears repeating that where acquittal is concerned, the rules do not distinguish whether it occurs at the level of the trial court or on appeal from a judgment of conviction. This firmly establishes the finality-of-acquittal rule in our jurisdiction. Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court level or before the Court of Appeals. In general, the rule is that a remand to a trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman v. Sandiganbayan. Condemning the trial before the Sandiganbayan of the murder of former Senator Benigno "Ninoy" Aquino, which resulted in the acquittal of all the accused, as a sham, this Court minced no words in declaring that "[i]t is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial court's judgment of acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process x x x x [T]he sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial, and closely monitored the entire proceedings to assure the predetermined final outcome of acquittal and absolution as innocent of all the respondent- accused x x x x Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian president to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal, such as that in the case at bar, is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is a lawless thing which can be treated as an outlaw. It is a terrible and unspeakable affront to the society and the people. 'To paraphrase Brandeis: If the authoritarian head of government becomes the lawbreaker, he breeds contempt for the law; he invites every man to become a law unto himself; he invites anarchy. The contention of respondent-accused that the Sandiganbayan judgment of acquittal ended the case and could not be appealed or reopened without being put in double jeopardy was forcefully disposed of by the Court in People v. Court of Appeals: x x x x That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Court's Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void x x x x Private respondents invoke 'justice for the innocent.' For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society which they have wronged, must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. Thus, the doctrine that "double jeopardy may not be invoked after trial" may apply only when the Court finds that the criminal trial was a sham because the prosecution representing the sovereign people in the criminal case was denied due process. The Court in People v. Bocar rationalized that the "remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy." The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into "the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State x x x x" Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one's liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. Related to his right of repose is the defendants interest in his right to have his trial completed by a particular tribunal. This interest encompasses his right to have his guilt or innocence determined in a single proceeding by the initial jury empanelled to try him, for societys awareness of the heavy personal strain which the criminal trial represents for the individual defendant is manifested in the willingness to limit Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. The ultimate goal is prevention of government oppression; the goal finds its voice in the finality of the initial proceeding. As observed in Lockhart v. Nelson, "(t)he fundamental tenet animating the Double Jeopardy Clause is that the State should not be able to oppress individuals through the abuse of the criminal process. Because the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. Petitioner resists the applicability of the finality-of-acquittal doctrine to the Philippine adjudicative process on the ground that the principle is endemic to the American justice system as it has specific application only to jury verdicts of acquittal, and thus finds no valid use in our jurisdiction since the underlying rationale of jury acquittals, a special feature of American constitutional law, has no parallel nor analogy in the Philippine legal system. This is a rather strained if not facile approach to the issue at hand, for it attempts to introduce the theory that insofar as the objective of factfinding is concerned, factfinding forming the core of the philosophy behind double jeopardy, there exists a difference between a jury acquittal and a judge acquittal, Philippine version. To support its contention, petitioner sedulously explains that in the United States there is an emerging consensus to differentiate the constitutional impact of jury verdicts of acquittal vis--vis judgments of acquittal rendered by the bench. While this consensus may have emerged in the United States, it is not difficult to surmise that it must have been so because of countless instances of conflict between jury verdicts and judgments of trial judges in the same case. Resultantly, procedural statutes and jurisprudence have been wont to draw lines of distinction between the two, hopefully to keep each other at bay. Since this phenomenon does not occur in our jurisdiction, as we have no juries to speak of, petitioners hypothesis is inappropriate. Be that as it may, the invalidity of petitioners argument lies in its focus on the instrumentality empowered to rule against the evidence, i.e., the American jury versus the Philippine judge, no matter how emphatic it qualifies its proposition with the phrase "underlying rationale of jury acquittals," rather than on the essential function of factfinding itself which consists of reception, sifting and evaluation of evidence. Where the main task of factfinding is concerned, there exists no difference between the American jury and the Philippine trial judge. Both are triers of facts. This much petitioner has to concede. The attempt therefore to close the door on the applicability of the finality rule to our legal system abjectly fails when one considers that, universally, the principal object of double jeopardy is the protection from being tried for the second time, whether by jury or judge. Thus, "emerging American consensus on jury acquittals" notwithstanding, on solid constitutional bedrock is well engraved our own doctrine that acquittals by judges on evidentiary considerations cannot be appealed by government. The jurisprudential metes and bounds of double jeopardy having been clearly defined by both constitution and statute, the issue of the effect of an appeal of a verdict of acquittal upon a determination of the evidence on the constitutionally guaranteed right of an accused against being twice placed in jeopardy should now be finally put to rest. Petitioner assails the decision rendered by the court a quo as blatantly inconsistent with the material facts and evidence on record, reason enough to charge respondent judge with grave abuse of discretion amounting to lack of jurisdiction resulting in a denial of due process. Citing People v. Pablo, it alleges that "respondent aggravated his indiscretion by not x x x reviewing the evidence already presented for a proper assessment x x x x It is in completely ignoring the evidence already presented x x x that the respondent judge committed a grave abuse of discretion." It adds that "discretion must be exercised regularly, legally and within the confines of procedural due process, i.e., after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness." Private respondent remonstrates against the propriety of petitioners certiorari as a mode of impugning the judgment of acquittal not only as a strategy to camouflage the issue of double jeopardy but also for the fact that, contrary to petitioners assertions, evidence in the case at bar was subjected to scrutiny, review, assessment and evaluation by respondent trial judge. By reason thereof, there cannot be perceived grave abuse of discretion on the part of the judge to warrant issuance of the great writ of certiorari. We agree. The office of the common law writ of certiorari is to bring before the court for inspection the record of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law. However, the original function and purpose of the writ have been so modified by statutes and judicial decisions. It is particularly so in the field of criminal law when the state is applying for the writ and problems arise concerning the right of the state to appeal in a criminal case. As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case in the absence of a statute clearly conferring that right. The problem comes into sharper focus when the defendant contends, in effect, that the prosecution is attempting to accomplish by the writ what it could not do by appeal, and that his constitutional rights are being thus encroached upon. Generally, under modern constitutions and statutes, provisions are available as guides to the court in determining the standing of the prosecution to secure by certiorari a review of a lower court decision in a criminal case which has favored the defendant. In most instances, provisions setting forth the scope and function of certiorari are found together with those relating to the right of the state to appeal or bring error in criminal matters. There is some indication that courts view the writ of certiorari as an appeal in itself where the applicant shows that there is no other adequate remedy available, and it is not uncommon to find language in cases to the effect that the state should not be permitted to accomplish by certiorari what it cannot do by appeal. Thus, if a judgment sought to be reviewed was one entered after an acquittal by a jury or the discharge of the accused on the merits by the trial court, the standing of the prosecution to review it by certiorari is far more likely to be denied than if it were such an order as one sustaining a demurrer to, or quashing the indictment, or granting a motion for arrest of judgment after a verdict of guilty. Philippine jurisprudence has been consistent in its application of the Double Jeopardy Clause such that it has viewed with suspicion, and not without good reason, applications for the extraordinary writ questioning decisions acquitting an accused on ground of grave abuse of discretion. The petition at hand which seeks to nullify the decision of respondent judge acquitting the accused Honorato Galvez goes deeply into the trial court's appreciation and evaluation in esse of the evidence adduced by the parties. A reading of the questioned decision shows that respondent judge considered the evidence received at trial. These consisted among others of the testimonies relative to the positions of the victims vis--vis the accused and the trajectory, location and nature of the gunshot wounds, and the opinion of the expert witness for the prosecution. While the appreciation thereof may have resulted in possible lapses in evidence evaluation, it nevertheless does not detract from the fact that the evidence was considered and passed upon. This consequently exempts the act from the writs limiting requirement of excess or lack of jurisdiction. As such, it becomes an improper object of and therefore non-reviewable by certiorari. To reiterate, errors of judgment are not to be confused with errors in the exercise of jurisdiction. WHEREFORE, the instant petition for certiorari is DISMISSED. SO ORDERED. Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Davide, Jr., C.J., and Puno, J., agree with J. Panganibans separate opinion. Melo, J., in the result. Panganiban, J., see separate opinion. Ynares-Santiago, J., on leave. . [G.R. No. 132081. November 26, 2002] JOEL M. SANVICENTE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. D E C I S I O N YNARES-SANTIAGO, J.: Petitioner was charged with homicide for the killing of one Dennis Wong y Chua. On June 11, 1995, at around 5:30 p.m., petitioner fatally shot the victim outside the Far East Bank along Katipunan Avenue, Loyola Heights, Quezon City after the latter allegedly attempted to rob him of a large amount of cash which he had just withdrawn from the automatic teller machine. Responding policemen found the lifeless body of the victim at the parking space in front of the Far East Bank and Trust Company Branch along Katipunan Road, Loyola Heights, Quezon City. Recovered at the scene were five empty caliber .45 shells, two live caliber .45 bullets and an ATM card in the name of Violeta Sanvicente. On June 13, 1995, police authorities located petitioners car in Barrio Malapit, San Isidro, Nueva Ecija and took custody thereof. Petitioners counsel, Atty. Leonardo A. Valmonte, turned over to Police Station 9 petitioners .45 caliber Mark IV pistol bearing Serial No. 5504095. He also wrote a letter addressed to P/Major Antonio Diaz, Station Commander of PNP Station 9, CPDC, Anonas Road, Quezon City which reads as follows: This is in connection with the alleged death of one Dennis Wong that occurred in Katipunan Ave., Q.C., in the afternoon of June 11, 1995. According to my client, Joel Sanvicente, on said date, place and hour above he just withdrew from the Far East Bank and Trust Co., Katipunan branch a large amount of cash. On his way out of the bank, said victim immediately attacked him to grab the money he has just withdrew (sic). My said client pulled out his gun (duly licensed with Permit to Carry) and fired a warning shot upwards. Still the deceased continued his attack and grabbed his gun. After a brief struggle, my client was forced to shoot the deceased in the defense of his person and money. My client will submit a formal statement during the proper preliminary investigation, if needed. On June 13, 1995, my clients car (Mercedes Benz with plate no. TFU 736) was taken by your operatives led by Capt. Alejandro Casanova and [is] now in your custody. In view of the untoward incident, my client suffered serious anxiety and depression and was advised to undergo medical treatment and confinement at the Delos Santos Hospital in Rodriguez Ave., Q. C. My client would have no objection if you assigned police escort/guard under your supervision pending his confinement. For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client. At his arraignment, petitioner pleaded not guilty. During the trial, the prosecution presented Ballistics Report No. B-046-95, stating that slugs recovered from the crime scene, on the one hand, and cartridge cases fired from petitioners caliber .45 Mark IV pistol, on the other hand, were fired from the same firearm. The Medico- Legal Officer who conducted the autopsy on the deceased failed to appear at the trial. In order to dispense with her testimony, petitioner admitted the due execution and genuineness of the medico-legal report. After trial, the prosecution filed its Formal Offer of Exhibits, which included the above-quoted letter of petitioners counsel to P/Maj. Antonio Diaz, marked as Exhibit LL. The trial court admitted all the prosecutions exhibits in its Order dated August 27, 1996. Meanwhile, petitioner begged leave to file a demurrer to evidence, which was granted by the trial court. Hence, on August 29, 1996, petitioner filed a Motion To Dismiss (On Demurrer to Evidence), based on the following grounds: (1) the lack of positive identification of the accused is a fatal omission warranting dismissal; (2) prosecutions evidence are totally hearsay/incompetent, hence, inadmissible and the guilt of the accused was not proven by positive evidence beyond reasonable doubt. On October 7, 1996, the trial court issued an Order dismissing the case together with the civil aspect thereof for insufficiency of evidence. The prosecution filed a motion for reconsideration, which was denied on the ground, among others, that with the dismissal of the case double jeopardy had set in. The prosecution filed a petition for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 43697. In a Decision dated July 25, 1997, the appellate court nullified the October 7, 1996 Order of the trial court. Petitioners motion for reconsideration was likewise denied in a Resolution dated January 2, 1998. Hence, the instant petition. In reversing the trial courts Order dismissing the criminal case against petitioner, the Court of Appeals found that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of Exhibit LL which, it claimed, positively identified petitioner as the perpetrator of the crime charged. Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule was stressed thus in People v. Velasco: The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State xxx. Thus Green expressed the concern that (t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty. It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction. The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for repose, a desire to know the exact extent of ones liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case, or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. In the instant case, petitioner filed a demurrer to evidence after the prosecution adduced its evidence and rested its case. The trial court subsequently dismissed the case after finding that the evidence presented by the prosecution was insufficient to support the charge against petitioner. The prosecution, which relied primarily on Exhibit LL as the basis for the indictment against petitioner, however, contested the dismissal of the case allegedly because the trial court prevented it from further identifying the genuineness and due execution of said document in the manner that it wanted. The crux of the problem lies in the confusion between the due execution of a piece of documentary evidence vis--vis the truth of its contents. Likewise at the core of the dilemma is the fundamental distinction between an admission and a confession. The prosecution maintains that the letter, Exhibit LL, constituted a confession and argues thus: What better evidence is there to positively identify the perpetrator of the crime than the confession of the petitioner himself, freely and voluntarily given, assisted by counsel? According to the prosecution, this extrajudicial confession constitutes the strongest evidence of guilt. An admission is defined under Rule 130, Section 26 of the Rules of Court as the act, declaration or omission of a party as to a relevant fact. A confession, on the other hand, under Rule 130, Section 33 is the declaration of an accused acknowledging his guilt of the offense charged or any offense necessarily included therein. More particularly, a confession is a declaration made at any time by a person, voluntarily and without compulsion or inducement stating or acknowledging that he had committed or participated in the commission of a crime. The term admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged. In short, in a confession, an accused acknowledges his guilt; while there is no such acknowledgment of guilt in an admission. Only recently in People v. Licayan, the Court distinguished confession and admission in this wise: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. (Emphasis ours) There is no question that the letter dated June 14, 1995 is an admission, not a confession, because of the unmistakable qualification in its last paragraph that For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client. . . (Emphasis and italics supplied). With the foregoing distinctions in mind, the trial court correctly rejected the prosecutions motion to have Exhibit LL further identified in the manner that it wanted, i.e., through the proposed testimony of petitioners counsel, Atty. Valmonte, who incidentally refused to testify. Aside from covering a subject which squarely falls within the scope of privileged communication, it would, more importantly, be tantamount to converting the admission into a confession. It can not be denied that the contents of Exhibit LL, particularly with regard to the details of the shooting communicated by petitioner to Atty. Valmonte, is privileged because it is connected with the business for which petitioner retained the services of the latter. More specifically, said communication was relayed by petitioner to Atty. Valmonte in order to seek his professional advice or assistance in relation to the subject matter of the employment, or to explain something in connection with it, so as to enable him to better advice his client or manage the litigation. Pertinent to this is Section 24 (b) of Rule 130 of the Rules of Court, to wit: SEC. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: x x x x x x x x x (b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; x x x. It is worthy to note that the prosecution did not summon petitioner himself to testify although he too was a signatory of Exhibit LL. Apparently, it was aware that petitioner could well invoke his right against self-incrimination and refuse to answer its questions. The prosecution then attempted to draw out what it could not constitutionally extract from his lawyer. Yet, and as stated previously, said Exhibit LL had earlier been admitted in evidence by the trial court in its Order dated August 27, 1996. What was objectionable was the prosecutions sole reliance on the document without proof of other facts to establish its case against petitioner because of its mistaken assumption that the same was a confession. Significantly, the prosecution was neither barred nor prevented by the trial court from establishing the genuineness and due execution of the document through other means. Rule 132, Section 20of the Rules of Court provides the following means of authenticating the document: SEC. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. Thus, the due execution of a document can be proved through the testimony of: (1) the person/s who executed it; (2) the person before whom its execution was acknowledged; or (3) any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures therein or by a person to whom the parties to the instrument previously confirmed the execution thereof. Thus, respondent could have called to the witness stand P/Maj. Antonio Diaz, the addressee of Exhibit LL, to identify the said document since it was supposedly delivered to him personally. Samples of the signatures appearing on the document which can be readily obtained or witnesses who are familiar with them could have also been presented. The prosecution did not. Neither did it subpoena P/Senior Inspector Alejandro M. Casanova, who prepared the detailed Police Report of the incident used as the basis of the inquest proceedings, nor were any eyewitnesses presented, notwithstanding that there appeared to be at least two eyewitnesses to the incident. It must be borne in mind that in a criminal trial, it is the prosecution that determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information. Stated differently, the determination of what evidence to adduce to bolster a successful prosecution of a criminal offense is the exclusive domain of prosecutorial discretion. Indeed, courts generally can not interfere with the prosecutors discretion as to control over criminal prosecutions. However, it is the court which ultimately determines whether such evidence is sufficient to sustain an indictment, thus, the care with which the prosecution must build up its case against the accused can not be gainsaid because, as has been stated time and again, in any criminal prosecution, the State must rely on the strength of its own evidence and not on the weakness of the evidence of the defense. Viewed vis-a-vis the foregoing lapses detailed above, the prosecutions insistence to have Exhibit LL admitted in the manner it wanted shows only too clearly a subtle but shrewd scheme to cover up for the foregoing procedural missteps and to cut evidentiary corners to build its case at the expense of the defense. This cannot be countenanced. An accused should not be prejudiced for the failure of the prosecution to discharge its burden of overcoming the constitutional presumption of innocence and to establish the guilt of the accused beyond reasonable doubt. Indeed, if the prosecution fails to discharge the burden, then it is not only the accuseds right to be freed, it is even more the courts constitutional duty to acquit him. If at all, the foregoing acts of the prosecution underscores just how careless and haphazard it had been in building up a case against the petitioner. For such, it has nothing but itself to blame if the trial court in assaying the proof it adduced found the same wanting. It will neither be allowed to sweep its procedural miscues under the rug, so to speak, on the pretext that it was denied due process when the trial court supposedly prevented it from presenting Exhibit LL. To be more precise, the trial court had admitted Exhibit LL in evidence but rejected the further admission of the document in the manner that it wanted. Verily, the prosecution can not have its cake and eat it too. Moreover, we agree with the trial court that the letter marked as Exhibit LL is hearsay inasmuch as its probative force depends in whole or in part on the competency and credibility of some person other than the witness by whom it is sought to produce it. The term as used in the law of evidence signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him. Its value, if any, is measured by the credit to be given to some third persons not sworn as witnesses to that fact and consequently not subject to cross-examination. In short, it is the evidence not of what the witness knows himself but of what he has heard from others. Thus, in one case we stated that [w]hen evidence is based on what was supposedly told the witness, the same is without any evidentiary weight being patently hearsay. In the case at bar, it is noteworthy that the statements in the letter were made by petitioners counsel, who even began his narration of the events with the phrase: According to my client. In holding that petitioner was identified as the person who committed the offense, the appellate court relied on the following circumstances: (1) he admitted responsibility therefor through Exhibit LL, which was signed by him and his counsel; (2) he surrendered even before the issuance of the warrant of arrest; (3) his gun was also surrendered to the police authorities by his counsel; (4) empty shells recovered at the scene of the crime matched his gun; and (5) the letter- referral of P/Senior Inspector Alejandro Casanova to Quezon City Prosecutor indicated that petitioner was under the custody of the policeman on detail supposedly to guard him at the hospital. With regard to the first circumstance, suffice it to state that, as has lengthily been discussed earlier, Exhibit LL is merely an admission and not a confession. In fact, petitioner specifically denied criminal intent therein. By and of itself it is insufficient to support a conviction unless it is considered in connection with other proof to establish the ultimate fact of guilt. The second and third incidents actually support petitioners innocence because were he indeed guilty of the felony, he would not likely have surrendered even before the warrant was issued for his arrest. Courts go by the biblical truism that the the wicked flee when no man pursueth but the righteous are as bold as a lion. The fourth event merely proves the fact that the empty shells recovered from the crime scene were fired from the surrendered gun. It, however, does not answer the penultimate question of who actually pulled the trigger of the firearm. Lastly, the appellate courts reading of the letter-referral, mentioning that petitioner had been placed under the custody of a policeman, was inaccurate. As explained by Atty. Valmonte in Exhibit LL, the policeman was actually requested for petitioners personal safety owing to the untoward incident which caused petitioner serious anxiety and depression, and for which he had to undergo treatment and confinement. All told, we find no grave abuse on the part of the trial court in dismissing the charges against petitioner. WHEREFORE, in view of all the foregoing, the petition is GRANTED. The decision of the Court of Appeals dated July 25, 1997 and the Resolution dated January 2, 1998 in CA-G.R. SP No. 43697 are REVERSED and SET ASIDE. SO ORDERED. Vitug, (Acting Chairman), Carpio, and Azcuna, JJ., concurDavide, Jr., C.J., (Chairman), on official leave. CHECKPOINTS
[G.R. No. 136292. January 15, 2002] RUDY CABALLES y TAIO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Facts: About 9:15 p.m. of 28 June 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with kakawati leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by Rudy Caballes yTaio. When asked what was loaded on the jeep, he did not answer, but he appeared pale and nervous. With Caballes consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by NationalPower Corporation (NAOCOR). The conductor wires weighed 700 kilos and valued atP55,244.45. Noceja asked Caballes where the wires came from and Caballes answered that theycame from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, Caballes and the vehicle with the high-voltage wires were brought to the Pagsanjan PoliceStation. Danilo Cabale took pictures of Caballes and the jeep loaded with the wires which wereturned over to the Police Station Commander of Pagsanjan, Laguna. Caballes was incarcerated for 7 days in the Municipal jail. Caballes was charged with the crime of theft in an information dated 16 October 1989. During the arraignment, Caballes pleaded not guilty and hence, trial onthe merits ensued. On 27 April 1993, Regional Trial Court of Santa Cruz, Laguna rendered judgment, finding Caballes, guilty beyond reasonable doubt of the crime of theft. In a resolutiondated 9 November 1998, the trial court denied Caballes motion for reconsideration. The Court of Appeals affirmed the trial court decision on 15 September 1998. Caballes appealed the decision by certiorari. Issue: Whether Caballes passive submission to the statement of Sgt. Noceja that the latter will look at the contents of his vehicle and he answered in the positive be considered as waiver on Caballes part on warrantless search and seizure.
Held: Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2,Article III thereof. The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view;(3) search of moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. It is not controverted that the search and seizure conducted by the police officers was not authorized by a search warrant. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Herein, the police officers did not merely conduct a visual search or visual inspection of Caballes vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It thus cannot be considered a simple routine check. Also, Caballes vehicle was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. The fact that the vehicle looked suspicious simply because I tis not common for such to be covered with kakawati leaves does not constitute probable causeas would justify the conduct of a search without a warrant. In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Philippine jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in the present case. Further, the evidence is lacking that Caballes intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of Caballes for them to conduct the search leaves much to be desired. WhenCaballes vehicle was flagged down, Sgt. Noceja approached Caballes and told him I will look at the contents of his vehicle and he answered in the positive. By uttering those words, it cannot be said the police officers were asking or requesting for permission that they be allowed to search the vehicle of Caballes. For all intents and purposes, they were informing, nay, imposing upon Caballes that they will search his vehicle. The consent given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where the Court upheld the validity of consented search, it will be noted thatthe police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. Neither can Caballes passive submission be construed as an implied acquiescence to the warrantless search. Casting aside the cable wires as evidence, the remaining evidence on record are
insufficient to sustain Caballes conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure.
D E C I S I O N PUNO, J.: This is an appeal by certiorari from the decision of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution dated November 9, 1998 which denied petitioner's motion for reconsideration. In an Information dated October 16, 1989, petitioner was charged with the crime of theft committed as follows: "That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging to and to the damage and prejudice of said owner National Power Corp., in the aforesaid amount. CONTRARY TO LAW." During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued. The facts are summarized by the appellate court as follows: "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not answer; he appeared pale and nervous. With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail. In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan. After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a week." On April 27, 1993, the court a quo rendered judgment the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worth P55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55, 244.45, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit: "WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of prision mayor, as maximum term. No civil indemnity and no costs." Petitioner comes before us and raises the following issues: "(a) Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction; (b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and (c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence." The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. In holding that the warrantless search and seizure is valid, the trial court ruled that: "As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge - a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of practicability. The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that automobiles because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. x x x To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to arrest the accused even without a warrant." Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt. I. Search of moving vehicle 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. Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area. None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. In the case of United States vs. Pierre, the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle. . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle. . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy - one who participated in the drug smuggling activities of the syndicate to which the accused belonged - that said accused were bringing prohibited drugs into the country. In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. Pat. Alex de Castro recounted the incident as follows: "ATTY. SANTOS Q Now on said date and time do you remember of any unusual incident while you were performing your duty? A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires. Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious? A Because the cargo was covered with leaves and branches, sir. Q When you became suspicious upon seeing those leaves on top of the load what did you do next, if any? A We stopped the jeepney and searched the contents thereof, sir." The testimony of Victorino Noceja did not fare any better: "ATTY SANTOS Q When you saw the accused driving the said vehicle, what did you do? A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir." We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. In People vs. Chua Ho San, we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus: "In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause - persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws. This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist - accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. x x x." (emphasis supplied) In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in this case. II. Plain view doctrine It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search. III. Consented search Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise: "WITNESS Q On June 28, 1989, where were you? A We were conducting patrol at the poblacion and some barangays, sir. x x x x x x x x x Q After conducting the patrol operation, do you remember of any unusual incident on said date and time? A Yes, sir. Q What is that incident? A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir. x x x x x x x x x Q When you saw the accused driving the said vehicle, what did you do? A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir. Q Did the vehicle stop? A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires. Q Before you saw the aluminum wires, did you talk to the accused? A Yes, sir, I asked him what his load was. Q What was the answer of Caballes? A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the contents of his vehicle and he answered in the positive. Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do? A I asked him where those wires came from and he answered those came from the Cavinti area, sir." This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. In Asuncion vs. Court of Appeals, the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna, the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon, the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla, it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng, the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search. In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search. Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros, appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos, to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioners conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is hereby ACQUITTED of the crime charged. Cost de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Pardo and Ynares-Santiago, JJ., concur.
G.R. No. 76005. April 23, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused, RESTITUTO B. BOCALAN, accused-appellant. The Solicitor General for plaintiff-appellee. Amador E. Mostajo and Presbiterio Velasco, Jr. for accused -appellant.
I. THE FACTS
A private jeep driven by accused-appellant Bocalan was stopped at a police checkpoint in Cavite City for routine inspection. With Bocalan were his co-accused Fernandez and Exala. Pfc. Galang, a member of the inspection team, went near the jeep and asked the occupants if there were firearms inside. They answered in the negative. Pfc. Galang proceeded to inspect the vehicle by beaming a flashlight inside. He then noticed a black leather bag measuring about 1 foot wide and 2 feet long with its sides bulging. When he asked what it contained, there was deadening silence from the 3 accused. Nobody answered. Instead, they suddenly became fidgety. Suspicious, Pfc. Galang ordered the bag opened, which was found out to contain marijuana. The 3 accused were thereafter prosecuted and convicted of illegal transportation of marijuana. Accused Bocalan appealed and questioned the legality of the admission of the marijuana as evidence against him since it was seized without a valid search warrant.
II. THE ISSUE
Was the marijuana seized without warrant during the checkpoint admissible in evidence against the accused?
III. THE RULING
[The 1 st Division voted 3-1 to AFFIRM the conviction of the accused. Justices Grio-Aquino and Quiason concurred with Justice Bellosillos ponencia. Justice Cruz, by his lonesome, dissented from the majority.]
The Court held that Bocalan is deemed to have waived his objection to the admission of the seized marijuana because he neither raised this issue before the trial court nor objected to the admissibility of the marijuana when it was offered in evidence.
And even assuming that there was no such waiver, the Court held that still Bocalans contention deserves scant consideration because there are instances where search and seizure can be made without necessarily being preceded by an arrest. An illustration would be the stop-and- search without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court [inValmonte vs. De Villa]. Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or thecontents of the vehicle are or have been instruments in the commission of an offense.
According to the Court, lest it be misunderstood, the foregoing doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a lawful arrest. This case, however, is an incident to or an offshoot of a lawful stop-and-search at a military or police checkpoint.
The checkpoint in the instant case was established in line with Operational Bakal, the main object of which was to search for unlicensed firearms and other prohibited items in the possession of unauthorized persons passing through it. When the jeep carrying the contraband passed through the checkpoint, it was flagged down and the occupants were asked routine questions. In the course thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the contents of the bag were. None of the accused answered. At that moment, the demeanor of the accused changed; they became suspiciously quiet and nervous as if they were concealing something from Pfc. Galang.The accused clearly appeared to be in abject fear of being discovered. Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear normal, provided the probable cause justifying a more extensive search that led to the opening of the bag and the discovery of the prohibited stuff.
[NOTE: Incidentally, one of the co-counsels for accused-appellant Bocalan in his appeal to the Supreme Court was then-Atty. and now Supreme Court Senior Associate Justice Presbitero Velasco Jr.] SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; "STOP-AND-SEARCH" AT A MILITARY OR POLICE CHECKPOINT, THE CONSTITUTIONALITY OF WHICH HAS BEEN UPHELD, IS ONE OF THE INSTANCES WHERE SEARCH AND SEIZURE CAN BE EFFECTED WITHOUT PRIOR ARREST OR WARRANT. There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. An illustration would be the "stop-and-search" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except by virtue of a search warrant or on the occasion of a lawful arrest. The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint. 2. ID.; ID.; THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE MAY BE WAIVED, AS IN THIS CASE. Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubt on their professed innocence but also confirms their acquiescence to the search. Clearly then, there was waiver of the right against unreasonable search and seizure. In one case We held ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly." 3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST MADE UPON DISCOVERY OF ACT OF DISPATCHING IN TRANSIT OR TRANSPORTING MARIJUANA IN VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED, IS LAWFUL AND REQUIRES NO WARRANT; AN INSTANCE OF WARRANTLESS ARREST UNDER SEC. 5, PAR. (A), RULE 113, 1985 RULES ON CRIMINAL PROCEDURE, AS AMENDED. The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended. 4. ID.; ID.; WEIGHT OF FACTUAL CONCLUSIONS BY TRIAL COURT RELATIVE TO CREDIBILITY OF WITNESSES; CASE AT BAR. Factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. There is none in this case on appeal. 5. ID.; EVIDENCE; OBJECTION ON THE LEGALITY OF SEARCH AND ADMISSIBILITY OF EVIDENCE OBTAINED IN THE COURSE OF SEARCH IS WAIVED WHEN NOT RAISED BEFORE THE TRIAL COURT, AND THE COURT IS BOUND TO ADMIT THE EVIDENCE. We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. In view of such waiver, the court is bound to admit evidence. 6. CRIMINAL LAW; MATERIALITY OF OWNERSHIP OF PROHIBITED DRUG IN A PROSECUTION FOR VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED. Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. CRUZ, J., dissenting: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE AT AN ORDINARY CHECKPOINT IS ILLEGAL FOR LACK OF PROBABLE CAUSE AS ENVISIONED IN THE BILL OF RIGHTS. I do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time by the authorities and searched without warrant on the chance that it may be carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights. In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The search is made as a matter of course, either of all vehicles or at random. There is no showing that a crime is about to be committed, is actually being committed, or has just been committed and the searching officer has personal knowledge that the person being searched or arrested is the culprit . . . I realize that this view would result in the inadmissibility of the seized marijuana as evidence against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot retroactively validate an illegal search on the justification that, after all, the articles seized are illegal. D E C I S I O N BELLOSILLO, J p: The admissibility of the evidence seized from the accused at a checkpoint after being stopped for routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of Cavite City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt of violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act of 1972." On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went near the jeep and asked the occupants if there were firearms inside. They answered in the negative. Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused, Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety. Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as "marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless in their seats and appeared petrified with fear. They were brought to the police station that same night for further investigation. 2 After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp otherwise known as marijuana. 3 Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended. After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not. Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his conviction; hence, We deal only with him in this appeal. Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted the offer and requested Bocalan to make a detour to Salitran, Dasmarias, Cavite, where he was to pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until their apprehension at the checkpoint. 6 Bocalan further contends that the trial court erred in admitting the bag as evidence against him since it was obtained through a warrantless search. 7 The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2 November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20) kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the marijuana is hardly credible. On the other hand, Exala declared that it was he who did not know the contents of the bag as it was already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to P10,000.00, to take the blame alone, but he refused. 10 Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. The law simply provides thus "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the unlawful dispatch in transit or transport of marijuana. The evidence of the prosecution, particularly the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one after the other to accompany him to the place where the bag of marijuana was taken and to help him bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and Exala, Bocalan is correctly punished for his direct involvement in the crime. Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal. We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention deserves scant consideration. There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. 16 An illustration would be the "stop-and-search" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. 17 Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint. The checkpoint in the instant case was established in line with "Operational Bakal" the main object of which was to search for unlicensed firearms and other prohibited items in the possession of unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through the checkpoint, it was flagged down and the occupants were asked routine questions. In the course thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the contents of the bag were. None of the accused answered. At that moment, the demeanor of the accused changed; they became suspiciously quiet and nervous as if they were concealing something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered. Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear normal, provided the probable cause justifying a more extensive search that led to the opening of the bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or objection to the search. The accused remained silent even after their arrest. Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubts on their professed innocence 21 but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right against unreasonable search and seizure. 23 In one case 24 We held ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly" (emphasis supplied). The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended. The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was explained in their separate testimonies and, in any event, has been resolved by the trial court as a factual issue. We find no reason to reverse its findings. Anent the argument that the three (3) accused should not have been assigned different levels of liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would have been meted out the same penalty imposed by the trial court. WHEREFORE, there being no reversible error in the decision appealed from finding accused- appellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same is AFFIRMED, with costs against him. SO ORDERED. G.R. No. 83988 September 29, 1989 RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP), petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for himself and his co-petitioners. F: On 1/20/87, the NCRDC was activated w/ the mission of conducting security operations w/in its area or responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political dev''t of the NCR. As part of its duty to maitain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela and MM. Petitioners aver that, bec. of the institution of said checkpoints, the Valenzuela residents are worried of being harassed and of their sarety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, w/o a SW and/ or court order. Their alleged fear for their safety increased when Benjamin Parpon, was gaunned down allegedly in cold blood by members of the NCRDC for ignoring and/ or continuing to speed off inspite of warning shots fired in the air. HELD: Petitioner''s concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints per se, illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military, indeed, committed specific violations of petitioners'' rights against unlawful search and seizure of other rights. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, or threatened to be infringed.
Source: http://www.shvoong.com/law-and-politics/1767286-case-digest-valmonte-villa-170/#ixzz23o6e3jxI PADILLA, J .: This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed. Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights. In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is however reasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10
WHEREFORE, the petition is DISMISSED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Separate Opinions
CRUZ, J ., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J ., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224- 4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.
Separate Opinions CRUZ, J ., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J ., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224- 4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition. FIRST DIVISION [G.R. Nos. 129756-58. January 28, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN DEEN ESCAO, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused. VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused- appellants. D E C I S I O N
Facts: On 5 April 1995 and during a COMELEC gun ban, some law enforcers of the MakatiPolice, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los Santos,and Inspector Ernesto Guico, were manning a checkpoint at the corner of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX). They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stopon the others. At about past midnight, they stopped a Kia Pride. P03 Suba saw a longfirearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Julian D. Escao, to open the door.P03 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were searchedfor more weapons. Their search yielded a .45 caliber firearm which they seized from Escao. The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3 Nonato. Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos was suspicious of the vehicle, he requested Escao to open the trunk. Escao readily agreed and opened the trunk himself using his key. They noticed a blue bag inside it, which they asked Escao to open. The bag contained a parcel wrapped in tape, which, upon examination by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms. Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the Regional Trial Court of Makati City, Branch 64.Escao and Usana were also charged with illegal possession of firearms and ammunition in violation of Presidential Decree 1866. The cases were consolidated and jointly tried. In its Decision of 30 May1997, which was promulgated on 17 June 1997, the trial court convicted Escao, Lopez, Usana and Escao. Issue: Whether the search conducted on Escanos car is illegal, and whether the evidence acquired therein would be sufficient to convict Lopez and Usana for possession of illegal drugs. Held: The Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to acertain extent, on motorists right to free passage without interruption, but it cannot bedenied that, as a rule, it involves only a brief detention of travelers during which thevehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. TheCOMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlight sinside the cars they would stop, without opening the cars doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what thesituation demands. Despite the validity of the search, the Court cannot affirm theconviction of Usana and Lopez for violation of RA 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the cars trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the cars trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latters car before the finding of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized.
DAVIDE, JR., C.J .: Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article II of Republic Act No. 6425, as amended. Escao and Usana were also charged in Criminal Case No. 95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866. The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another, without being authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH", a prohibited drug, in violation of the above-cited law. The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, 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, direct custody and control one (1) pc. of cal. .45 pistol, government model with Serial No. 990255, with magazine containing 7 live ammos and two (2) more magazines for cal. .45 pistol containing 7 live ammos each, without first securing the necessary license or permit from the proper government authorities and which firearm and ammunitions he carried outside of his residence. The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, 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, direct custody and control One (1) pc. of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary license or permit from the proper government authorities and which firearms and ammunitions he carried outside of his residence. The cases were consolidated and jointly tried. In its Decision of 30 May 1997, which was promulgated on 17 June 1997, the trial court convicted Escao and herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in Criminal Case No. 95-938. Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal of Appeal, which was granted by the trial court in its Order of 17 July 1997. Usana and Lopez filed a Notice of Appeal on 30 June 1997, manifesting therein that they were appealing to this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95-936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case No. 95-938. In its Order of 30 June 1997, the trial court gave due course to the appeal and ordered the transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to the Court of Appeals. Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court. Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players in this case. The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los Santos, and Inspector Ernesto Guico, were manning a checkpoint at the corner of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX). They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia Pride car with Plate No. TBH 493. PO3 Suba saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search yielded a .45 caliber firearm which they seized from Escao. The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3 Nonato. Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos was suspicious of the vehicle, he requested Escao to open the trunk. Escao readily agreed and opened the trunk himself using his key. They noticed a blue bag inside it, which they asked Escao to open. The bag contained a parcel wrapped in tape, which, upon examination by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms. =L A certification was issued by the Firearms and Explosive Office of the National Police Commission (NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber. Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM. For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including Usana and Lopez. He saw his friend and erstwhile co- employee at Philippine Airlines, Ramon Cabrera, who had borrowed his wifes car. Since it was his wifes birthday the following day, he asked Cabrera if he could get back the car. Cabrera readily gave him the keys of the car. He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wifes car, they cruised southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen persisted in asking for his license, but he did not budge and instead reiterated that there was no reason for him to surrender his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of firearms by the policemen which prompted Usana to suggest that they go to the police station because the policemen were carrying guns and they have not done anything wrong. 1** Z1 He stated further that he was the one who drove to the police station along Dian St. with his companions. He parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco. The policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to search his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell. After two hours, he was brought back to Lt. Ecos office. Lt. Eco pointed to a bag, a rifle, a pistol and a package wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal possession of firearms and transporting of drugs. He was surprised that they found those items from his car because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised to see its trunk open. On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the same subdivision. On 4 April 1995, he was working on Usanas pick-up truck at the latters house when Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park. At around 5:30 p.m., they left Usanas house in Escaos metallic gray Kia Pride. Inside the car, he saw a .45 caliber pistol and two spare magazines tucked in the right side and left side of Escaos waist. He also saw a carbine under the right passenger seat. When he inquired about the guns, Escao replied that such did not pose any problem since they were licensed. Before going to Usana, they went to Pasay City to see a certain Jerry. They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was unaware if the latter noticed the rifle beneath the seat. 1L* Z1 They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The policemen directed their flashlights at them and one opened the front passenger door. The latter saw the rifle under Usanas seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the gun tucked in Escaos waist and asked if he was a policeman. Escao replied that everything would be explained at the police station. He was also asked to step out. No firearm was, however, found in his possession. When confronted about the guns, Escao tried to intercede for his two companions and said that "... these two dont know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A certain Toto, a policeman, drove the Kia Pride to Block 5. Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military connections. After returning to Lt. Ecos office, PO3 de los Santos went out of the police station with Lt. Eco and Escao. The three came back with a blue bag which he had never seen before. The bag was opened before the three suspects. Escao reiterated that his two companions had nothing to do with the bag. He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned the bag/case. For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de Asis and Taytay Management Corporation. He admitted owning a licensed .45 caliber pistol. In March 1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied materials to the Philippine Army and planned to engage in a construction business. On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30 and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit, and met at around a quarter past nine. Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him. They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents relating to the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun and magazines tucked in Escaos waist. Upon inquiry, Escao said it was not a problem and only for his protection. On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat Ave. Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian clothes suddenly opened the right door, took something from the side of his seat and shouted, "Theres a gun." He was surprised because he did not carry anything when he boarded the car; neither did he see anything inside the car because it was dark and he was not wearing his eyeglasses. The person who took the gun asked if he was a policeman, and he said he was an architect. He was then asked to alight from the car, then frisked. Escao was also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and Escao answered in the negative. Lopez was then ordered to get out of the car by the person in civilian clothes and was also searched. They rode the Anfra service vehicle of the police. One of the policemen asked Lopez to handcuff him and Escao. The policeman who asked Escao to get out of the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April. 1 =L* He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and Erwin Eco, the person in civilian clothes. All six went out to the parking area and returned after about five minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about the contents of the bag, and they implored Escao to tell the police that they had nothing to do with it. The trial court found the prosecutions version more credible than that of any one of the accused, and ruled that the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed: WHEREFORE, in view of the foregoing judgment is hereby rendered as follows: 1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment of RECLUSION PERPETUA, and to pay a fine of P500,000.00. The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and 2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO USANA y TOME are GUILTY as charged in the two separate informations respectively filed against them and are sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL maximum as maximum. F1Z< The firearms and ammunitions subject matter of these cases which are still with the City Prosecutors Office are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate disposition. SO ORDERED. Accused-appellants Usana and Lopez anchor their appeal on the following arguments: 1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police officers already had the opportunity to secure a search warrant before searching the bag found at the baggage compartment at the back of the car; 2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was owned and possessed solely by Escao; 3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they were neither in actual nor constructive possession of the illegal drug; and 4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants. Before going any further, some words are in order regarding the establishment of checkpoints. Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner. We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period. AZ This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the cars doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless search; and (6) stop-and- frisk situations. Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez and Usana testified that Escao was with the police officers when they searched the car. There was no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos. But according to Escao, he refused the request of the police officers to search his car. We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against him. Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the cars trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the cars trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latters car before the "finding" of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized. IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No 6425, as amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on ground of reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to report to the Court the release of said accused-appellants within five (5) days from notice of this decision. SO ORDERED. Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.2/18/00 8:48 AM [G.R. No. 120852. October 28, 1999] BENJAMIN D. OBRA and BRIG. GEN. TOMAS DUMPIT, petitioners, vs. COURT OF APPEALS, SPOUSES JAMES BRETT and JUNE PRILL BRETT, respondents. D E C I S I O N MENDOZA, J.: This is a petition for review on certiorari of the decision, dated June 21, 1995, of the Court of Appeals affirming an award of P100,000.00 for violation of constitutional right and P10,000.00 for attorneys fees made by the Regional Trial Court, Branch 8, of Baguio and Benguet in favor of private respondents. The facts are as follows: Petitioner Benjamin D. Obra was, at the time material to this case, the Regional Director of the Bureau of Mines and Geo-Sciences (BMGS) in Baguio City. On June 26, 1985, Jeannette M. Grybos wrote him a letter on behalf of the Gillies heirs of Palasa-an, Mankayan, complaining that private respondents, spouses James Brett and June Prill Brett, had been conducting illegal mining activities in an area in Bgy. Palasa-an, Mankayan, Benguet belonging to Gillies family. It was alleged: A certain James Brett and June Prill Brett have since 1981 been illegally mining the above- named Gillies property, extracting ore and mining without permit. We would like therefore to have their operations investigated and inspected. We request further that their operations be stopped and their mining equipments (sic) be confiscated. For your ready reference we are enclosing some documents and pictures regarding the matter. On the same day, petitioner Obra wrote Brig. Gen. Tomas Dumpit, then the Commanding General of the Regional Unified Command I (RUC-1) of the Philippine Constabulary (PC), with headquarters at Camp Bado Dangwa, La Trinidad, Benguet, requesting assistance in apprehending a truck allegedly used by private respondents in illegal mining in the area. The pertinent portion of Obras letter to Dumpit reads: [In connection with the complaint of Ms. Jeannette M. Grybos,] we are enlisting the assistance of your command by way of checking and apprehending a truck colored blue and yellow lining which is used in transporting illegally mined ores from Palasa-an, Mankayan, Benguet to Baguio City. Said vehicle passes through the military outpost located at the main entrance of Camp Dangwa. Kindly call up the Bureau of Mines and Geo-Sciences, Baguio, when such truck will be apprehended so that this Office could take appropriate action therein. The following day, June 27, 1985, petitioner Obra wrote private respondents and Ms. Grybos, informing them that the BMGS was going to conduct an ocular inspection and field investigation on July 2-5, 1985 at Palasa-an, Mankayan, Benguet in connection with Grybos complaint and requesting them and their witnesses to be present at the investigation so that all legal and technical matters, as well as the facts surrounding the case, shall be gathered and collated in order for this Office to take the appropriate action thereon. . . . Copies of the letters were furnished petitioner Dumpit with the request that assistance be extended by RUC-1 to insure the success and peaceful outcome of the investigation. Supposedly attached to the request was a certified true copy of a certification, dated June 20, 1985, made by the BMGS stating that no Mines Temporary Permit, Small-Scale Mining Permit or any permit was issued to James Brett within the Gillies Property in Palasa-an, Mankayan, Benguet. A similar letter was sent by petitioner Obra on June 27, 1985, to Col. Bernardo Estepa, Provincial Commander of Benguet, with the request that the latter stop momentarily any mining operation or activity, if there be any, of James and June Prill Brett in Palasa-an, Mankayan, Benguet until the controversy or case has been resolved by [the BMGS]. Accordingly, elements of RUC-1 under Major Guillermo Densen and led by SGT. Josefino A. Morales seized, on July 1, 1985, an Isuzu ELF truck (ABX-587) belonging to private respondents as it was entering the Mamakar mining area in Palasa-an, Mankayan, Benguet. The truck was impounded by the military and prevented from leaving the area except on mercy missions to transport sick soldiers and workers to the hospital and when used to buy food supplies for the men inside the camp. Private respondents then filed a complaint for injuction and damages, with an application for temporary restraining order, with the Regional Trial court, Branch 8, of Baguio and Benguet. They alleged that the truck had been seized without prior investigation to determine the existence of probable cause and that this was in violation of private respondents constitutional rights under Art. 32, in relation to Arts. 19, 20 and 21, of the Civil Code. On July 18, 1985, the trial court issued a temporary restraining order directing petitioners to cease and desist from preventing the subject truck from leaving the mine site. On August 8, 1985, the court issued a writ of preliminary injunction. After trial, the court gave judgment to private respondents. It found that no investigation had been conducted either by petitioner Obra or his office or by petitioner Dumpit to verify the complaint of Jeannette Grybos before the vehicle was ordered seized by them, and that, as a result, private respondents had been deprived of the use and enjoyment of property without due process of law. Accordingly, the trial court ruled that, under Art. 32 of the Civil Code and the ruling in Aberca v. Ver, private respondents wer entitled to actual and compensatory damages, moral damages, and exemplary damages in the total amount of P100,000.00 and attorneys fees in the total amount of P10,000.00, plus costs of suit. On appeal, the appellate court affirmed the decision in toto. Hence, this petition. Petitioners contend: 1. PETITIONERS COULD NOT BE HELD LIABLE FOR DAMAGES IN THE PERFORMANCE OF THEIR DUTY IN GOOD FAITH. 2. PETITIONERS ARE ENTITLED TO AN AWARD OF DAMAGES. The contentions are without merit. The decision of the Court of Appeals is affirmed. Petitioners invoke P.D. No. 1281, as amended, authorizing the Regional Director of the BMGS to order the seizure and confiscation, in favor of the Government, of the tools and equipment used in the commission of an offense and to deputize, when necessary, any member or unit of the PC, police agency, barangay or any qualified person to police mining activities. They claim that petitioner Obra made his request to his co-petitioner in good faith and solely for the purpose of maintaining the status quo while the investigation of Grybos complaint was being conducted, after finding that private respondents had no permit to conduct mining activities in the contested area. The provisions of P.D. No. 1281, which petitioners invoke in their defense, read: Sec. 3. The Bureau of Mines shall have the following powers and functions, to wit: . . . . f.) To arrest or order the arrest, even without warrant, of any person who has committed or is in the act of committing any of the offenses defined under Presidential Decree No. 463, or any other laws being implemented by the Bureau of Mines, and seize and confiscate or order the seizure and confiscation, in favor of the government, of the tools and equipment used in the commission of the offense and the minerals extracted by the offender, and institute whatever action that may be necessary relative thereto; g.) To deputize, when necessary, any member or unit of the PC, police agency, barangay or any qualified person to police all mining activities; . . . . Sec. 6. The Bureau of Mines shall have jurisdictional supervision and control over all holders of mining claims or applicants for and/or grantees of mining licenses, permits, leases and/or operators thereof, including mining service contracts and service contracts insofar as their mining activities are concerned; and in the exercise of such authority, it shall have the power to enlist the aid and support of all law enforcement agencies of the Government, civil and/or military. Petitioners contend that these provisions of the Decree were justified under Art. IV, 3 of the 1973 Constitution which provided that The right of the people to be secure in their persons, houses, papers, and effects aginst unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. The above provision of the 1973 Constitution, however, merely validated the grant by law to nonjudicial officers of the power to issue warrants of arrest or search warrants, but did not in any way exempt these officers from the duty of determining the existence of probable cause as basis for the issuance of such warrants. Indeed, the issue in this case is not whether petitioner Obra had authority to issue a search warrant and to deputize the military to assist in his investigation. The question is whether he conducted an investigation and found probable cause for ordering the seizure and impoundment of private respondents vehicle. The answer is: he did not. To the contrary, as petitioner Obras letters to private respondents and to Grybos clearly stated, an investigation was to be held on July 2-5, 1985 precisely to determine the veracity of the allegations in Grybos complaint. Apparently, petitioner Obras only basis for ordering the seizure of the vehicle was an alleged certification from the BMGS that no mining permit had been issued to private respondents. The certification, however, was not presented in evidence nor does a copy thereof appear in the records. On the contrary, in its resolution dated may 12, 1986, the BMGS found that private respondent June Prill Brett had a valid and subsisting mining claim within the area and that it was the Gillies family which had no permit or lease from the government, although it was the first to work the claim. Nor indeed could the seizure of the vehicle be justified under the moving vehicle doctrine. The truck was seized while it was entering the mining area; it was not transporting minerals outside of the area. As held in People v. Bagista, With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought. This is in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. There could not have been, therefore, any finding of probable cause that the truck was being used for any illegal mining activities. As we said in Aberca v. Ver, the military is not to be restrained from pursuing their task or carrying out their mission with vigor. However, in doing so, care must be taken that constitutional and legal safeguards are not disregarded. In this case, there was absolutely no justification for the disregard of procedures for issuing search and seizure orders. The Court of Appeals rightly concluded then that petitioners violated private respondents constitutional rights to due process and to security against unreasonable searches and seizure in ordering the seizure and impoundment of private respondents vehicle. For as the trial court held: From all the above arguments and counter-arguments, the Court finds that the petitioners do not seriously dispute that the private respondents were, indeed, deprived of the use of their Isuzu ELF Truck when the private respondents foreman and the driver of the truck were told by SGT. Morales of the RUC-I that the same could not leave the mining area in Palasa-an, Mankayan, Benguet, per orders, and the same was parked in front of the building where the military team specifically assigned for that particular mission was staying. The arguments of the petitioners that there was no destraint and/or seizure because the keys of the truck were always in the possession of private respondents driver Kiyabang, that, on several occasions, the truck left the Palasa-an mining area, . . . and that the private respondents voluntarily and maliciously refused to use or enjoy their own truck . . . are facetious, to say the least, and deserve no serious consideration, in the light of the undisputed fact that the military men led by Sgt. Morales did not allow him to drive the truck out of the Palasa-an mining area, and on those occasions when he drove the truck out of the mining area, it was on missions of mercy and for purposes of the needs of the military personnel assigned in the Palasa-an mining area, and these, always with a soldier on board the truck. There was, therefore, a distraint and at least constructive seizure by the military men led by Sgt. Morales, as per orders, of the Isuzu Ilf truck of the private respondents, effectively depriving the latter of its use and enjoyment of their property. Likewise, it is not disputed by the petitioners that Petitioner Obras request for the checking and apprehending of private respondents truck by Petitioner Dumpits RUC-I Command on June 26, 1985 (Exh. C) and the actual apprehension of said truck by Sgt. Morales and his men on July 1, 1985, were not preceded by and based on an investigation conducted by Petitioner Obra or his Office, but, instead, were based on the letter-complaint of Jeannette Grybos received by said Office also on June 26, 1985 (Exh. B). The petitioners claim that this did not violate the constitutional right of the private respondents to due process because of the aforequoted reasons completely ignores the fundamental rule that laws should not be so interpreted or implemented as to violate the provisions of the constitution. Specifically, Petitioner Obras interpretation of the law that grants him jurisdictional supervision and control over persons and things that have something to do with mines and mining (Sec. 6, P.D. No. 1281) authorizes him to distrain and seize private respondents truck, as he actually did through Sgt. Morales and his men, without prerequisite conditions such as a prior preliminary investigation of the case (taken from the above quotation from petitioners Memorandum), clearly violates the provision of the Bill of Rights on due process . . . These findings and conclusions of the trial court, as affirmed by the Court of Appeals, are binding on this Court in the absence of any showing that they are contrary to the evidence in the record. On the other hand, petitioner Dumpit claims that unlike the superior officers in Aberca, he had no knowledge of the acts of his subordinates since they did not file an after-incident report which was the standard procedure in these cases. He claims that all he did was to endorse the request to Major Densen, the Intelligence Officer of RUC-1, to coordinate with the BMGS and implement the order accordingly. These contentions have no merit. It was sufficiently proved in this case that the seizure of the truck was effected upon the orders of petitioner Dumpit, acting on the request of petitioner Obra. Private respondents witnesses testified that when they asked the military men who stopped them upon their entry to the Mamakar mining site, the soldiers told them that they were acting upon the orders of the general in Camp Dangwa. Sgt. Morales even issued a certification that the truck was seized as per orders. Petitioner Dumpit himself testified, thus: SOL. DAVID: Q This letter refers to a complaint by Mrs. Jeannette M. Grybos, when you received that letter of Engr. Obra, what action, if any, did you take? A On the letter of Director Obra dated June 26, 1985, whereby he was requesting assistance, the first thing I did is just to designate an action officer and my instruction is to coordinate with Director Obra and undertake necessary action. . . . . A I referred that letter when I received it from Director Obra to the Action Officer, the late Maj. Guillermo Densen. ATTY. GALACE: Q Major Densen did not go to the mining site of [Palasa-an]? A My instruction was very clear, coordinate with Director Obra and take the necessary appropriate action, period. That was my only instruction to the late Maj. Densen. Q You did not authorize Maj. Densen to enter the mining site and that all operations in the mining area will be stopped? A I left it to the discretion of my subordinate, your Honor. Art. 32 of the Civil Code makes liable any public officer who is directly or indirectly responsible for violating an individuals constitutional rights. The ruling in Aberca, which has been reiterated in subsequent cases, is stated as follows: . . .[T]he decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person directly of indirectly responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. . . .While it would certainly be too nave to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgressions joint tortfeasors. It was clear from petitioner Obras letter to petitioner Dumpit that assistance wa sought for the seizure of private respondents truck. Thus, when petitioner Dumpit endorsed the request to his subordinates for proper action, there could not have been any other forseeable consequence but the eventual seizure of the truck. Petitioner Dumpit cannot evade responsibility for his acts by claiming that he merely performed a ministerial duty in ordering the implementation of petitioner Obras request. Otherwise, Art. 32 could easily be avoided by the mere plea that the officer concerned was only carrying out a ministerial duty. Petitioner Dumpit was a ranking military official. It is unseemly for him to claim that he was merely executing a ministerial act. WHEREFORE, the petition is DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur. Quisumbing, J., on official leave. [G.R. No. 86218, September 18, 1992]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ELSIE BAGISTA Y BANGCO, ACCUSED-APPELLANT.
D E C I S I O N
NOCON, J.:
Appeal by accused-appellant Elsie Bagista from the decision dated September 26, 1988 of the Regional Trial Court of La Trinidad, Benguet, Branch 10, finding her guilty beyond reasonable doubt of violating Section 4, Article II of Republic Act No. 6425, and sentencing her to suffer the penalty of life imprisonment and to pay a fine of P20,000.00, with subsidiary imprisonment in case of insolvency, and to pay the costs. The facts of the case are as follows: On July 4, 1988, at around 8:00 o'clock in the morning, the Narcotics Command (NARCOM) Detachment Office located at the Arix Building, Bokawkan Road, Baguio City, received information from one of its regular informants that a certain woman, 23 years of age, with naturally curly hair, and with a height of 5'2" or 5'3", would be transporting marijuana from up north. [1] Acting upon this piece of information, Sgt. Oscar Parajas testified that he, Sgt. Godofredo Fider and a civilian NARCOM agent proceeded to Km. 16, Acop, Tublay, Benguet. Upon arriving at said location at around 11:00 o'clock that same morning, they established a checkpoint and flagged down all vehicles, both private and public, coming from the north to check if any of these vehicles were carrying marijuana leaves on board. [2]
After about 4 1/2 hours, the NARCOM agents stopped a Dangwa Tranco bus with Plate No. AVD 938 and body number 428, which came from Lepanto, Benguet. Sgts. Parajas and Fider boarded the bus and thereupon Sgt. Parajas announced to the passengers that they were NARCOM agents and that they were going to search their baggages. Sgt. Parajas then proceeded to the rear of the bus while Sgt. Fider began inspecting the bags in the front. [3]
While at the back, Sgt. Parajas noticed a woman with curly hair seated at the right side (as one is facing the driver) of the last seat of the bus, with a travelling bag with black and orange stripes [4]
on her lap. Sgt. Parajas inspected the bag and discovered three (3) bundles of marijuana leaves covered by assorted clothing. The bag and the contents thereof were confiscated and the woman arrested; she was later brought to the NARCOM office in Baguio City where she was booked and investigated. The woman was then identified as accused-appellant. [5] The confiscated bundles were subjected to laboratory examination, and found positive for marijuana. [6]
Accused-appellant's defense rests solely on denial. She claimed that she was engaged in the buying and selling of vegetables, particularly cabbages. On the day in question, she boarded the Dangwa Tranco bus at Abatan, Benguet, bringing with her ten (10) sacks of cabbages which she intended to sell to a certain Maria Opino in Baguio City. While inside the bus, she approached the conductor for her ticket to cover the fare for her sacks of cabbages, but was told by the latter that he would attend to her later. When the bus reached Tublay, Benguet, it was stopped by the NARCOM agents who boarded the same and began inspecting the baggages of the passengers. Accused-appellant claimed that the bag containing the marijuana was taken from the luggage carrier above the passenger seats. When nobody admitted owning the bag, the NARCOM agent approached her, took the shoulder bag on her lap, and asked her to come with them for investigation as she fits the description of the would-be transporter of the marijuana given by the NARCOM informer. She denied having anything to do with the marijuana found on the bus. To corroborate her story, accused-appellant presented the conductor of the Dangwa Tranco bus, Nestor Yangkin. He testified that when the NARCOM agents boarded the bus at Tublay, Benguet, one of them got a bag from the luggage carrier, opened it, and smelled the contents. The agent then asked the passengers who among them owned the bag; when nobody answered, he walked to the back of the bus, all the time looking at the faces of the passengers. When the agent approached accused-appellant, who was seated at the rear of the bus, the former talked to her, then escorted her out of the bus. [7]
During Yangkin's cross-examination, it came out that the 10 sacks of vegetables that were loaded at Abatan were brought by a man who told him that the fare for the sacks will be paid upon arrival at the Dangwa Station in Baguio City but that the owner of the sacks would be riding in the bus. And yet, Yangkin did not seek out the alleged owner of the sacks. The witness also testified that none of the passengers approached him and offered to pay for the fare of the sacks, [8]
contrary to accused-appellant's testimony. In convicting accused-appellant, the trial court found the testimony of Sgt. Parajas credible. Said the court a quo: . . . The testimony of Sgt. Oscar Parajas was direct and straightforward as he gave all the requisite details of the entrapment operation they conducted based on an information provided by a coordinating individual. His testimony reveals that the bag containing the marijuana leaves was found on the lap of the accused. There is nothing in the record to suggest that Sgt. Parajas was moved by any motive than simply the carrying out of his official mission or duty. Where there is no evidence and nothing to indicate that the principal witness for the prosecution was actuated by improper motives, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit (People vs. Francia, L-69253, September 30, 1987, 154 SCRA 495)." [9]
The trial court brushed aside the defense's observation that there were discrepancies between the testimony of Sgt. Parajas and the evidence presented, such as the color of the bag allegedly taken from accused-appellant and the kind of marijuana taken from the bag, as immaterial. Similarly brushed aside was the defense's contention that the evidence against accused-appellant, such as the Receipt of Property Seized [10] and her signature thereon, [11] and the Booking Sheet and Arrest Report [12] and her signature thereon, [13] were inadmissible due to the absence of counsel, since these were not confessions or extra-judicial statements. Finally, the trial court did not give credence to the testimonies of accused-appellant and her witness Nestor Yangkin, in view of the testimony of Sgt. Parajas that he took the bag containing the marijuana from accused-appellant's lap. Moreover, the court a quo observed that there was a discrepancy between the testimonies of accused-appellant and Yangkin on the matter of the 10 sacks of cabbage, which led the court to conclude that the former was in the act of transporting marijuana at the time of her arrest. Accused-appellant filed a motion for reconsideration, alleging that the marijuana leaves found in the bag taken from her was inadmissible in evidence as it was the product of a warrantless search, which motion was denied by the trial court for lack of merit on November 22, 1988. Aggrieved, accused-appellant filed the instant appeal, alleging that the court a quo erred (1) in not finding the warrantless search conducted by the NARCOM agents as illegal and unconstitutional, and (2) in admitting the illegally obtained evidences and convicting her on the basis of said evidences. Accused-appellant is in error. The general rule regarding searches and seizures can be stated in this manner: no person shall be subjected to a search of his person, personal effects or belongings, or his residence except by virtue of a search warrant or on the occasion of a lawful arrest. [14] The basis for the rule can be found in Article III, Section 2 of the 1987 Constitution, which states: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose, shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." Article III, Section 3 (2) further ordains that any evidence obtained in violation of the aforementioned right shall, among others, "be inadmissible for any purpose in any proceeding." The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, [15] and the seizure of evidence in plain view. [16]
With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought. [17]
This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. [18]
The NARCOM officers in the case at bar had probable cause to stop and search all vehicles coming from the north at Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise have probable cause to search accused-appellant's belongings since she fits the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained during the course of said search is admissible against accused-appellant. At any rate, no objection was raised by the accused-appellant in the court below on the inadmissibility of the evidence against her on the ground that the same was obtained in a warrantless search. This amounts to a waiver of the objection on the legality of the search and the admissibility of the evidence obtained therefrom. [19] Amid a waiver, the court is duty bound to admit the evidence. [20]
Reviewing the evidence, We find the same sufficient to prove accused-appellant's guilt beyond reasonable doubt. The prosecution had shown, primarily through the positive testimony of Sgt. Parajas, that the bag containing the dried marijuana leaves was taken from accused-appellant's possession. She denies this fact and contends that the bag in question was actually taken from the luggage carrier above the passenger seats and not from her. Indisputably, We have two opposing versions of what actually happened at the checkpoint in Km. 16, Acop, Tublay, Benguet, resulting in the accused-appellant's apprehension, that of the prosecution and that of the defense. In situations like this, the matter of assigning values to the testimony of witnesses is best performed by the trial courts because, unlike appellate courts, they can weigh such testimony in the light of the demeanor, conduct and attitude of the witnesses at the trial. [21] The exception is when the trial court has overlooked certain facts of substance and value that, if considered, might affect the result, [22] which We do not find in the instant case. Moreover, accused-appellant's defense was weakened by the fact that her witness Nestor Yangkin contradicted her on the matter of the 10 sacks of vegetables appellant claims to have brought with her at the time of her arrest. Appellant claims she loaded the sacks of vegetables on the bus and tried to pay for its fare, but that conductor Yangkin, put her off. Yangkin claims otherwise: the sacks of vegetables were loaded by a man who told him that the fare for the sacks will be paid upon arrival in Baguio City, and that no one on the bus offered to pay for the same. In weighing contrary declarations and statements, greater weight must generally be given to the positive testimonies of the prosecution witnesses than the denials of the accused-appellant. [23]
Given the discrepancy on this point, the trial court correctly disregarded the corroborative testimony of Nestor Yangkin. The matter of the ownership of the 10 sacks of vegetables is material since appellant's reason for being on the bus was to deliver these sacks to Baguio City. If the sacks of vegetables are not hers, then the only conclusion that can be drawn is that she was on her way to Baguio City to sell the marijuana found in her possession. As to the alleged discrepancies in the prosecution's case, such as the color of the stripes of the bag which contained the marijuana and whether the items seized from accused-appellant were marijuana leaves or marijuana fruit tops, these are minor in character and do not detract from the prosecution's case since it was shown by the Receipt of Property Seized, [24] which was signed by accused-appellant, that these were the very items taken from her at the time of her arrest. WHEREFORE, finding no error in the decision appealed from, the same is hereby AFFIRMED in toto. Costs against accused-appellant. SO ORDERED. EXCLUSIONARY RULE
G.R. No. 97143 October 2, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARTURO FIGUEROA, accused-appellant.
People vs. Figueroa Facts:The accused was charged with Illegal Possession of Firearms and Ammunitions of RA 645 and subsequently convicted by the RTC Br. 23 of Trece Martires in Cavite. While serving the warrant of arrest, the officers noticed, strewn around, aluminum foil packages of different sizes in the sala. Suspecting thus the presence of "shabu" in the premises, the arresting officers requested appellant, as well as his brother and sister, to acquiesce to a search of the house. The search yielded a .45 caliber pistol, a magazine, seven live ammunitions, and a match box containing an aluminum foil package with "shabu." Confronted, Figueroa denied ownership of the items. An inventory was conducted by the PC team, attested to by Barangay Captain Bigornia, of the seized items. The accused questions the admissibility in evidence of the firearm and confiscated ammunition for it was discovered during a warrantless search. Issue: Was their an unlawful warrantless search and seizure. Held: No. the search and seizure of the articles sought isa valid being a search incidental to an arrest. The .45 caliber pistol, magazine and rounds of ammunition were not unlawfully obtained. While the SC might concede difficulty in readily accepting the statement of the prosecution that the search was conducted with consent freely given by appellant and members of his household, it should be pointed out, in any case, that the search and seizure was done admittedly on the occasion of a lawful arrest. A significant exception from the necessity for a search warrant is when the search and seizure is effected as an incident to a lawful arrest. As a doctrine in jurisprudence, the warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surrounding under his immediate control. Objects in the `plain view' of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.
VITUG, J .: Arturo Figueroa was charged with Illegal Possession of Firearm and Ammunition in an information that read: The undersigned Assistant City Prosecutor accuses ARTURO FIGUEROA of the crime of Illegal Possession of the Firearm and Ammunition, committed as follows: That on or about the 10th day of November 1989 at San Francisco Subdivision, Brgy. San Juan, Municipality of Gen. Trias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, wilfully, unlawfully and feloniously have in his possession and control one (1) pistol cal. 45 with defaced serial number with one magazine and seven (7) live ammunitions for the said firearm without first having obtained the necessary permit or license from competent authority to possess the same. 1
When arraigned, the accused entered a plea of "Not Guilty," thereupon, trial ensued. It would appear that on 10 November 1989, at around seven o'clock in the morning, Captain Lodivino Rosario, the Executive Officer of the 215th PC Company, and his men arrived at the residence of accused Arturo Figueroa at Barangay San Juan, San Francisco Subdivision, General Trias, Cavite, to serve a warrant for his arrest issued by the Regional Trial Court of Makati, Branch 56, in Criminal Case No. 411 and Criminal Case No. 412 (for the crime of Illegal Possession of Ammunitions and for Violation of Section 16, Art. III, Republic Act 6425). While serving the warrant of arrest, the officers noticed, strewn around, aluminum foil packages of different sizes in the sala. Suspecting thus the presence of "shabu" in the premises, the arresting officers requested appellant, as well as his brother and sister, to acquiesce to a search of the house. The search yielded a .45 caliber pistol, a magazine, seven live ammunitions, and a match box containing an aluminum foil package with "shabu." Confronted, Figueroa denied ownership of the items. An inventory was conducted by the PC team, attested to by Barangay Captain Bigornia, of the seized items. The accused, besides assailing the credibility of the witnesses for the prosecution, questioned the admissibility in evidence of the firearm and rounds of ammunition which, he claims, were discovered and taken during a warrantless search. On 30 October 1990, the trial court rendered a decision finding the accused Arturo Figueroa guilty. From the judgment, the decretal portion of which reads WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime charged and is hereby sentenced to suffer the penalty of reclusion perpetua (life imprisonment) and to pay the costs. The firearm and ammunitions are confiscated and forfeited in favor of the government. Capt. Lodivino Rosario, Executive Officer, 215th PC Coy, is hereby ordered to return to Arturo Figueroa the motorcycle with Motor Engine No. KIE 073574 taken from the house of the Figueroas on November 10, 1989. 2
this appeal is interposed by Arturo Figueroa (a) reiterating his argument against the admissibility against him of evidence seized following a warrantless search and (b) challenging anew the credibility of the prosecution witnesses. The appeal cannot be sustained. The .45 caliber pistol, magazine and rounds of ammunition were not unlawfully obtained. While we might concede difficulty in readily accepting the statement of the prosecution that the search was conducted with consent freely given by appellant and members of his household, it should be pointed out, in any case, that the search and seizure was done admittedly on the occasion of a lawful arrest. 3
A significant exception from the necessity for a search warrant is when the search and seizure is effected as an incident to a lawful arrest 4 and so, in People vs. Musa, 5 this Court elaborated; thus The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surrounding under his immediate control. Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. Appellant faults the trial court for giving credence to the testimony given by witnesses for the prosecution despite what he claims to be inconsistencies in their declarations. Appellant particularly calls attention to the assertion of prosecution witness Sgt. Atas, to the effect that appellant was with a companion inside a room when arrested and that the seized firearm was found under the cushion of the bed, against the statement of Capt. Rosario, another prosecution witness, that appellant was alone when arrested and that the gun was found under appellant's bed. We do not consider these discrepancies to be so major as to warrant a complete rejection of their questioned testimony. It is not unnatural for witnesses of the same incident to somehow perceive differently and to thereby vary in their respective accounts of the event. 6 The contradiction of witnesses on minor details is nothing unusual and should be expected. 7 We see no cogent reason for not according due respect to the findings of the trial court on the credibility of the witnesses. Finally, it is claimed that appellant was just "framed-up." The conduct of the appellant following his arrest would belie this allegation. Appellant himself admitted that he failed to complain about this matter when he was apprehended. Neither did he report the so- called "planting of the gun" to the police authorities nor did he bring it up before the Metropolitan Trial Judge when he appeared for preliminary investigation. In fact, it would seem that the only time appellant mentioned the alleged "frame-up" was when he testified at the trial of this case. No plausible reason was given by appellant that would have prompted police authorities to falsely impute a serious crime against him. Absent a strong showing to the contrary, we must accept the presumption of regularity in the performance of official duty. 8
WHEREFORE, the appealed decision is AFFIRMED in toto. Costs against accused- appellant. SO ORDERED. Feliciano and Romero, JJ., concur. Melo, J., is on leave. [G.R. Nos. 129756-58. January 28, 2000] [G.R. No. 123872. January 30, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN MONTILLA y GATDULA, accused-appellant.
Search and Seizure Informers Tip Warrantless Arrest On 19 June 1994 at about 2pm, police officers Talingting and Clarin were informed by an asset that a drug courier would be arriving from Baguio to Dasmarias carrying an undetermined amount of marijuana. The next day, the informant pointed at Montilla as the courier who was waiting in a waiting shed Brgy Salitran, Dasmarias. Montilla was then apprehended and he was caught in possession of a bag and a carton worth 28 kilos of marijuana. Montilla denied the allegation and he said he came to Cavite from Baguio for work and he does not have any effects with him at that time except for some pocket money. He was sentenced to death thereafter. He averred that the search and seizure conducted was illegal for there was no warrant and that he should have been given the opportunity to cross examine the informant. He said that if the informant has given the cops the information about his arrival as early as the day before his apprehension, the cops should have ample time to secure a search warrant. ISSUE: Whether or not the warrantless arrest conducted is legal. HELD: The SC ruled that the warrantless arrest is legal. Sec 2 Art 3 of the Constitution has its exception, they are: (1) customs searches; (2) searches of moving vehicles, (3) seizure of evidence in plain view; (4) consented searches; (5) searches incidental to a lawful arrest; (6) stop and frisk measures have been invariably recognized as the traditional exceptions. In the case at bar, it should be noted that the information relayed by informant to the cops was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio in the early morning of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name. On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense.
D E C I S I O N REGALADO, J.: Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of 1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information which alleges: That on or about the 20th day of June 1994, at Barangay Salitran, Municipality of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously, administer, transport, and deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing damage and prejudice to the public interest. The consequent arraignment conducted on September 14, 1994 elicited a plea of not guilty from appellant who was assisted therein by his counsel de parte. Trial was held on scheduled dates thereafter, which culminated in a verdict of guilty in a decision of the trial court dated June 8, 1995 and which imposed the extreme penalty of death on appellant. He was further ordered to pay a fine in the amount of P500,000.00 and to pay the costs of the proceedings. It appears from the evidence of the prosecution that appellant was apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and SPO1 Armando Clarin, both members of the Cavite Philippine National Police Command based in Dasmarias. Appellant, according to the two officers, was caught transporting 28 marijuana bricks contained in a traveling bag and a carton box, which marijuana bricks had a total weight of 28 kilos. These two officers later asserted in court that they were aided by an informer in the arrest of appellant. That informer, according to Talingting and Clarin, had informed them the day before, or on June 19, 1994 at about 2:00 P.M., that a drug courier, whom said informer could recognize, would be arriving somewhere in Barangay Salitran, Dasmarias from Baguio City with an undetermined amount of marijuana. It was the same informer who pinpointed to the arresting officers the appellant when the latter alighted from a passenger jeepney on the aforestated day, hour, and place. Upon the other hand, appellant disavowed ownership of the prohibited drugs. He claimed during the trial that while he indeed came all the way from Baguio City, he traveled to Dasmarias, Cavite with only some pocket money and without any luggage. His sole purpose in going there was to look up his cousin who had earlier offered a prospective job at a garment factory in said locality, after which he would return to Baguio City. He never got around to doing so as he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran. He further averred that when he was interrogated at a house in Dasmarias, Cavite, he was never informed of his constitutional rights and was in fact even robbed of the P500.00 which he had with him. Melita Adaci, the cousin, corroborated appellant's testimony about the job offer in the garment factory where she reportedly worked as a supervisor, although, as the trial court observed, she never presented any document to prove her alleged employment. In the present appellate review, appellant disputes the trial court's finding that he was legally caught in flagrante transporting the prohibited drugs. This Court, after an objective and exhaustive review of the evidence on record, discerns no reversible error in the factual findings of the trial court. It finds unassailable the reliance of the lower court on the positive testimonies of the police officers to whom no ill motives can be attributed, and its rejection of appellant's fragile defense of denial which is evidently self- serving in nature. 1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on the basis of insufficient evidence as no proof was proffered showing that he wilfully, unlawfully, and feloniously administered, transported, and delivered 28 kilos of dried marijuana leaves, since the police officers "testified only on the alleged transporting of Marijuana from Baguio City to Cavite." Further, the failure of the prosecution to present in court the civilian informant is supposedly corrosive of the People's cause since, aside from impinging upon appellant's fundamental right to confront the witnesses against him, that informant was a vital personality in the operation who would have contradicted the hearsay and conflicting testimonies of the arresting officers on how appellant was collared by them. The pertinent provision of the penal law here involved, in Section 4 of Article II thereof, as amended, is as follows: SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed. Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act, some of the various modes of commission being the sale, administration, delivery, distribution, and transportation of prohibited drugs as set forth in the epigraph of Section 4, Article II of said law. The text of Section 4 expands and extends its punitive scope to other acts besides those mentioned in its headnote by including these who shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." Section 4 could thus be violated by the commission of any of the acts specified therein, or a combination thereof, such as selling, administering, delivering, giving away, distributing, dispatching in transit or transporting, and the like. As already stated, appellant was charged with a violation of Section 4, the transgressive acts alleged therein and attributed to appellant being that he administered, delivered, and transported marijuana. The governing rule with respect to an offense which may be committed in any of the different modes provided by law is that an indictment would suffice if the offense is alleged to have been committed in one, two or more modes specified therein. This is so as allegations in the information of the various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. In appellant's case, the prosecution adduced evidence clearly establishing that he transported marijuana from Baguio City to Cavite. By that act alone of transporting the illicit drugs, appellant had already run afoul of that particular section of the statute, hence, appellant's asseverations must fail. The Court also disagrees with the contention of appellant that the civilian informer should have been produced in court considering that his testimony was "vital" and his presence in court was essential in order to give effect to or recognition of appellant's constitutional right to confront the witnesses arrayed by the State against him. These assertions are, however, much too strained. Far from compromising the primacy of appellant's right to confrontation, the non-presentation of the informer in this instance was justified and cannot be faulted as error. For one, the testimony of said informer would have been, at best, merely corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the trial court, which testimonies are not hearsay as both testified upon matters in which they had personally taken part. As such, the testimony of the informer could be dispensed with by the prosecution, more so where what he would have corroborated are the narrations of law enforcers on whose performance of duties regularity is the prevailing legal presumption. Besides, informants are generally not presented in court because of the need to hide their identities and preserve their invaluable services to the police. Moreover, it is up to the prosecution whom to present in court as its witnesses, and not for the defense to dictate that course. Finally, appellant could very well have resorted to the coercive process of subpoena to compel that eyewitness to appear before the court below, but which remedy was not availed of by him. 2. Appellant contends that the marijuana bricks were confiscated in the course of an unlawful warrantless search and seizure. He calls the attention of the Court to the fact that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police authorities had already been apprised by their so-called informer of appellant's impending arrival from Baguio City, hence those law enforcers had the opportunity to procure the requisite warrant. Their misfeasance should therefore invalidate the search for and seizure of the marijuana, as well as the arrest of appellant on the following dawn. Once again, the Court is not persuaded. Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. Evidence secured on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1) customs searches; (2) searches of moving vehicles, (3) seizure of evidence in plain view; (4) consented searches; (5) searches incidental to a lawful arrest; and (6) "stop and frisk" measures have been invariably recognized as the traditional exceptions. In appellant's case, it should be noted that the information relayed by the civilian informant to the law enforcers was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio City in the "early morning" of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name. While it is not required that the authorities should know the exact name of the subject of the warrant applied for, there is the additional problem that the informant did not know to whom the drugs would be delivered and at which particular part of the barangay there would be such delivery. Neither did this asset know the precise time of the suspect's arrival, or his means of transportation, the container or contrivance wherein the drugs were concealed and whether the same were arriving together with, or were being brought by someone separately from, the courier. On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. In fact, the police had to form a surveillance team and to lay down a dragnet at the possible entry points to Barangay Salitran at midnight of that day notwithstanding the tip regarding the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter inside and around the barangay as backup, unsure as they were of the time when and the place in Barangay Salitran, where their suspect would show up, and how he would do so. On the other hand, that they nonetheless believed the informant is not surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a reliable source in past operations. Moreover, experience shows that although information gathered and passed on by these assets to law enforcers are vague and piecemeal, and not as neatly and completely packaged as one would expect from a professional spymaster, such tip- offs are sometimes successful as it proved to be in the apprehension of appellant. If the courts of justice are to be of understanding assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical environment of judicial chambers. 3. On the defense argument that the warrantless search conducted on appellant invalidates the evidence obtained from him, still the search on his belongings and the consequent confiscation of the illegal drugs as a result thereof was justified as a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court. Under that provision, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense. On the other hand, the apprehending officer must have been spurred by probable cause in effecting an arrest which could be classified as one in cadence with the instances of permissible arrests set out in Section 5(a). These instances have been applied to arrests carried out on persons caught in flagrante delicto. The conventional view is that probable cause, while largely a relative term the determination of which must be resolved according to the facts of each case, is understood as having reference to such facts and circumstances which could lead a reasonable, discreet, and prudent man to believe and conclude as to the commission of an offense, and that the objects sought in connection with the offense are in the place sought to be searched. Parenthetically, if we may digress, it is time to observe that the evidentiary measure for the propriety of filing criminal charges and, correlatively, for effecting a warrantless arrest, has been reduced and liberalized. In the past, our statutory rules and jurisprudence required prima facie evidence, which was of a higher degree or quantum, and was even used with dubiety as equivalent to "probable cause." Yet, even in the American jurisdiction from which we derived the term and its concept, probable cause is understood to merely mean a reasonable ground for belief in the existence of facts warranting the proceedings complained of, or an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime. Felicitously, those problems and confusing concepts were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists." It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized. In the case at bar, as soon as appellant had alighted from the passenger jeepney the informer at once indicated to the officers that their suspect was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the informer told them that the marijuana was likely hidden inside the traveling bag and carton box which appellant was carrying at the time. The officers thus realized that he was their man even if he was simply carrying a seemingly innocent looking pair of luggage for personal effects. Accordingly, they approached appellant, introduced themselves as policemen, and requested him to open and show them the contents of the traveling bag, which appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag yielded the prohibited drugs, so, without bothering to further search the box, they brought appellant and his luggage to their headquarters for questioning. Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But, precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellant's luggage. It would obviously have been irresponsible, if not downright absurd under the circumstances, to require the constable to adopt a "wait and see" attitude at the risk of eventually losing the quarry. Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drugs. With these attendant facts, it is ineluctable that appellant was caught in flagrante delicto, hence his arrest and the search of his belongings without the requisite warrant were both justified. Furthermore, that appellant also consented to the search is borne out by the evidence. To repeat, when the officers approached appellant and introduced themselves as policemen, they asked him about the contents of his luggage, and after he replied that they contained personal effects, the officers asked him to open the traveling bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that the law had caught up with his criminal activities. When an individual voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof. After all, the right to be secure from unreasonable search may, like other rights, be waived either expressly or impliedly. Thus, while it has been held that the silence of the accused during a warrantless search should not be taken to mean consent to the search but as a demonstration of that person's regard for the supremacy of the law, the case of herein appellant is evidently different for, here, he spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. 4. Appellant likewise harps on the alleged failure of the prosecution to "legally, properly and adequately establish that the 28 bricks of marijuana allegedly confiscated from (him) were the same marijuana examined by the forensic chemist and presented in court." Indeed, the arresting officers did not identify in court the marijuana bricks seized from appellant since, in fact they did not have to do so. It should be noted that the prosecution presented in the court below and formally offered in evidence those 28 bricks of marijuana together with the traveling bag and the carton box in which the same were contained. The articles were properly marked as confiscated evidence and proper safeguards were taken to ensure that the marijuana turned over to the chemist for examination, and which subsequently proved positive as such, were the same drugs taken from appellant. The trial court, therefore, correctly admitted them in evidence, satisfied that the articles were indubitably no other than those taken from appellant. Complementarily, the corpus delicti was firmly established by SPO1 Clarin and SPO1 Talingting who categorically related that when they had ascertained that the contents of the traveling bag of appellant appeared to be marijuana, they forthwith asked him where he had come from, and the latter readily answered "Baguio City," thus confirming the veracity of the report of the informer. No other conclusion can therefore be derived than that appellant had transported the illicit drugs all the way to Cavite from Baguio City. Coupled with the presentation in court of the subject matter of the crime, the marijuana bricks which had tested positive as being indian hemp, the guilt of appellant for transporting the prohibited drugs in violation of the law is beyond doubt. Appellant questions the interrogation conducted by the police authorities, claiming that he was not allowed to communicate with anybody, and that he was not duly informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. Indeed, appellant has a point. The police authorities here could possibly have violated the provision of Republic Act No. 7438 which defines certain rights of persons arrested, detained, or under custodial investigation, as well as the duties of the arresting, detaining, and investigating officers, and providing corresponding penalties for violations thereof. Assuming the existence of such irregularities, however, the proceedings in the lower court will not necessarily be struck down. Firstly, appellant never admitted or confessed anything during his custodial investigation. Thus, no incriminatory evidence in the nature of a compelled or involuntary confession or admission was elicited from him which would otherwise have been inadmissible in evidence. Secondly and more importantly, the guilt of appellant was clearly established by other evidence adduced by the prosecution, particularly the testimonies of the arresting officers together with the documentary and object evidence which were formally offered and admitted in evidence in the court below. 5. The reversible error of the trial court lies in its imposition of the penalty of death on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of Article II shall be applied if the dangerous drugs involved is, in the case of indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs carries with it the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law prescribes a penalty composed of two indivisible penalties, reclusion perpetua and death. In the present case, Article 63 of the Revised Penal Code consequently provides the rules to be observed in the application of said penalties. As found by the trial court, there were neither mitigating nor aggravating circumstances attending appellant's violation of the law, hence the second paragraph of Article 63 must necessarily apply, in which case the lesser penalty of reclusion perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a quo, it was never intended by the legislature that where the quantity of the dangerous drugs involved exceeds those stated in Section 20, the maximum penalty of death shall be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be gleaned or deduced. On the contrary, this Court has already concluded that Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code, the rules wherein were observed although the cocaine subject of that case was also in excess of the quantity provided in Section 20. It is worth mentioning at this juncture that the law itself provides a specific penalty where the violation thereof is in its aggravated form as laid down in the second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if the victim is a minor, or should a prohibited drug involved in any offense in said section be the proximate cause of the death of a victim thereof, the maximum penalty shall be imposed. While the minority or the death of the victim will increase the liability of the offender, these two facts do not constitute generic aggravating circumstances, as the law simply provides for the imposition of the single indivisible penalty of death if the offense is attended by either of such factual features. In that situation, obviously the rules on the graduation of penalties in Article 63 cannot apply. In herein appellant's case, there was neither a minor victim nor a consequent death of any victim. Hence, the basic rules in Article 63 of the Code govern. WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of Dasmarias, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the sense that accused- appellant Ruben Montilla y Gatdula shall suffer the penalty of reclusion perpetua. In all other respects, the judgment of the trial court is hereby AFFIRMED, with costs against accused-appellant. SO ORDERED. Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Kapunan, Mendoza, Francisco, and Martinez, JJ, concur. Melo, and Puno, JJ., join Panganiban J., separate opinion. Vitug, J., concur but reserve his vote on the discussion on the warrantless search of appellant as his incidental to a lawful arrest. SECOND DIVISION [G.R. No. 119220. September 20, 1996] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO accused- appellant.
FACTS: Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition
defined and penalized under Presidential Decree No. 1866.- SPO3 Jose Nio stated that he and other operatives went to Barangay Caulangohan, Caibiran, Biliran.They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran.- The team of Police Officer Nio proceeded to Barangay Onion where they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that thelatter were drunk and that Solayao was wearing a camouflage uniform or a jungle suit. Solayaos companions, upon seeing the government agents, fled.- Confiscated from Solayao is a homemade firearm called Latong. Solayao admitted that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over tothe custody of the policeman of Caibiran who subsequently investigated him and charged him with illegal possession of firearm.- Solayao was found guilty, then he appealed to the court against the admissibility of the firearm as evidence as it was the product of an unlawful warrantless search. ISSUE: WON the trial court erred in admitting in evidence the homemade firearm . HELD: Firearm is admissible as evidence. RATIO: The case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Suspicion also arouse when the group was spotted dressed in camouflage. Also the officers were precisely in the area to conduct an operation to verify the intelligence report and stop any potential disturbance in the area.
D E C I S I O N ROMERO, J.: Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition defined and penalized under Presidential Decree No. 1866. The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade firearm locally known as "latong." When he asked accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the custody of the policeman of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accused- appellant to suffer the prison term of reclusion perpetua with the accessory penalties provided by law. It found that accused-appellant did not contest the fact that SPO3 Nino confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his companions. Accused-appellant comes to this Court on appeal and assigns the following errors: "I. The trial court erred in admitting in evidence the homemade firearm. "II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the maximum penalty against the accused-appellant." This Court, in the case of People v. Lualhati ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia: "A peace officer or a private person may, without a warrant, arrest a person when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for being "the fruit of the poisonous tree." As such, the prosecution's case must necessarily fail and the accused-appellant acquitted. Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. where this Court declared: " emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law." Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle suit and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspected that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant." This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was a probable cause to conduct a search even before an arrest could be made. In the present case, after SPO3 Nino told accused-appellant not to run away, the former identified himself as a government agent. The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming around in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm. As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused- appellant when his companions fled upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license to possess the subject firearm. Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. In People v. Tiozon, this Court said: "It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if 'it is an essential ingredient of the offense charged,' the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in commtting the offense charged was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no 'license or permit to possess' the .45 caliber pistol mentioned therein. Thus is seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with 'having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment alike, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this view as follows: 'The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him.' (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)." Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine in People v. Macagaling: "We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegation must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged." In the case at bar, the prosecution was only able to prove by testimonial evidence that accused- appellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. In other words, the prosecution relied on accused-appellant's admission to prove the second element. Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accused-appellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged. This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt thecommission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: "An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof." Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. In view of the foregoing, this Court sees no need to discuss the second assigned error. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with costs de oficio. SO ORDERED. Regalado, (Chairman), Puno, and Torres, Jr., JJ., concur. Mendoza, J., on leave. EN BANC [G.R. No. 126252. August 30, 1999] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JESUS GARCIA y MANABAT, Accused-Appellant. FACTS: Nov 28, 1994 at Baguio City: Manabat, accused, did then and there willfully, unlawfully and feloniously have in his possession, custody and control five (5) kilos of compressed marijuana dried leaves. Senior Inspector OLIVER ENMODIAS TESTIMONY: He and SPO3 JOSE PANGANIBAN boarded a passenger jeepney. He took the seat behind the jeepney driver while SPO3 Panganiban sat opposite him. They were in civilian attire. o When the jeepney reached km. 4 or 5, accused JESUS GARCIA boarded the jeepney carrying a plastic bag. He occupied the front seat, beside the driver and placed the plastic bag on his lap. o After a couple of minutes, the policemen smelled marijuana which seemed to emanate from accuseds bag. To confirm their suspicion, they decided to follow accused when he gets off the jeepney. o The accused proceeded to Rizal Park and sat by the monument. Half a meter away, the police officers saw the accused retrieve a green travelling bag from the back pocket of his pants. He then transferred five (5) packages wrapped in newspaper from the plastic bag to the green bag. o As the newspaper wrapper of one of the packages was partially torn, the police officers saw the content of the package. It appeared to be marijuana. o Forthwith, the policemen approached the accused and identified themselves. The policemen then asked the accused if they could inspect his travelling bag. The accused surrendered his bag and the inspection revealed that it contained five (5) bricks of what appeared to be dried marijuana leaves. o The police officers then arrested the accused and seized his bag. The accused was turned over to the CIS office at the Baguio Water District Compound for further investigation. He was appraised of his custodial rights. o The next day, the policemen executed their joint affidavit of arrest and transferred the accused to the Baguio city jail. ACUSSEDS ALIBI: At about 8:00 a.m., he left his residence in Angeles City to visit his brother, NICK GARCIA, whom he had not seen for ten (10) years. At about 2:00 p.m., two (2) men accosted him at the park. They did not identify themselves as police officers. They held his hands and ordered him to go with them. Despite his protestations, he was forcibly taken to a waiting car and brought to a safehouse. WITNESS (DE GUZMAN) TESTIMONY: While he was walking along Rizal Park, he noticed two (2) men holding the accuseds hands and forcing him to a car. He was then about 8-10 meters away. He did not see the accused or any of the two men carrying a bag. RTC: Found the accused guilty of illegal possession of prohibited drugs on Feb 20, 1996. On February 26, 1996, the accused moved for reconsideration. Judge De Guzman retired on feb 16, 1996. On August 6, 1996, Acting Presiding Judge Eulogio Juan R. Bautista issued an Order granting in part accuseds Motion for Reconsideration.
HELD: Although the effectivity of Judge de Guzman, Jr.s disability retirement was made retroactive to February 16, 1996, it cannot be denied that at the time his subject decision was promulgated on February 20, 1996, he was still the incumbent judge of the RTC, Branch LX of Baguio City, and has in fact continued to hold said office and act as judge thereof until his application for retirement was approved in June 1996. In the present case, as Judge de Guzman, Jr. was a de facto judge in the actual exercise of his office at the time the decision under review was promulgated on February 20, 1996, said decision is legal and has a valid and binding effect on appellant. There is nothing irregular in the manner appellant was apprehended by the police authorities. It was only after they saw that one of the packages with the torn wrapper contained what looked like marijuana fruiting tops did they accost appellant and make the arrest. At that precise time, they had obtained personal knowledge of circumstances indicating that appellant had illicit drugs in his possession. They had reasonable ground upon which to base a lawful arrest without a warrant. Neither do we find anything irregular with the turn over of appellant to the CIS Office. This has been the practice of the arresting officers as their office had previously arranged with the CIS for assistance with respect to investigations of suspected criminals, the CIS office being more specialized in the area of investigation. Neither can the police officers be held liable for arbitrarily detaining appellant at the CIS office. Article 125 of the Revised Penal Code, as amended, penalizes a public officer who shall detain another for some legal ground and fail to deliver him to the proper authorities for 36 hours for crimes punishable by afflictive or capital penalties. In the present case, the record bears that appellant was arrested for possession of five (5) kilos of marijuana on November 28, 1994 at 2 p.m., a crime punishable with reclusion perpetua to death. He was detained for further investigation and delivered by the arresting officers to the court in the afternoon of the next day. Clearly, the detention of appellant for purposes of investigation did not exceed the duration allowed by law, i.e., 36 hours from the time of his arrest
D E C I S I O N PUNO, J .: For review is the conviction of accused-appellant JESUS GARCIA y MANABAT for illegal possession of five (5) kilos of marijuana for which he was initially sentenced to death. The Information[1 against him reads: That on or about the 28th day of November, 1994, in the City of Baguio, 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, custody and control five (5) kilos of compressed marijuana dried leaves, without the authority of law to do so, in violation of the abovecited provision of the law. CONTRARY TO LAW. Upon arraignment, accused-appellant pled not guilty. The prosecutions case hinges on the testimony of Senior Inspector OLIVER ENMODIAS. He recounted that on November 28, 1994, he and SPO3 JOSE PANGANIBAN boarded a passenger jeepney from their office in Camp Dangwa, La Trinidad, Benguet, en route to Baguio City. He took the seat behind the jeepney driver while SPO3 Panganiban sat opposite him. They were in civilian attire. When the jeepney reached km. 4 or 5, accused JESUS GARCIA boarded the jeepney carrying a plastic bag. He occupied the front seat, beside the driver and placed the plastic bag on his lap. After a couple of minutes, the policemen smelled marijuana which seemed to emanate from accuseds bag. To confirm their suspicion, they decided to follow accused when he gets off the jeepney.[2 The accused alighted at the Baguio City hall and the police officers trailed him. The accused proceeded to Rizal Park and sat by the monument. Half a meter away, the police officers saw the accused retrieve a green travelling bag from the back pocket of his pants. He then transferred five (5) packages wrapped in newspaper from the plastic bag to the green bag. As the newspaper wrapper of one of the packages was partially torn, the police officers saw the content of the package. It appeared to be marijuana.[3 Forthwith, the policemen approached the accused and identified themselves. The accused appeared to be nervous and did not immediately respond. The policemen then asked the accused if they could inspect his travelling bag. The accused surrendered his bag and the inspection revealed that it contained five (5) bricks of what appeared to be dried marijuana leaves. The police officers then arrested the accused and seized his bag. The accused was turned over to the CIS office at the Baguio Water District Compound for further investigation. He was appraised of his custodial rights. At about 5 p.m., the arresting officers left for the crime laboratory at Camp Dangwa, Benguet, for chemical analysis of the items seized from the accused. The next day, the policemen executed their joint affidavit of arrest and transferred the accused to the Baguio city jail. Verification by the arresting officers of the records at the Narcotics Command revealed that the accuseds name was in the list of drug dealers.[4 The result of chemical analysis of the five (5) items seized from the accused confirmed that they were dried marijuana fruiting tops, weighing a total of five (5) kilos.[5 For his part, the accused admitted being at the locus criminis but denied possessing marijuana or carrying any bag on November 28, 1994. He alleged that on said day, at about 8:00 a.m., he left his residence in Angeles City to visit his brother, NICK GARCIA, whom he had not seen for ten (10) years. He arrived in Baguio City at 12:30 p.m. Before proceeding to his brothers house, he took a stroll at the Rizal Park. At about 2:00 p.m., two (2) men accosted him at the park. They did not identify themselves as police officers. They held his hands and ordered him to go with them. Despite his protestations, he was forcibly taken to a waiting car[6 and brought to a safehouse. There, he was asked about the source of his supply of illicit drugs. When he denied knowledge of the crime imputed to him, he was brought to a dark room where his hands were tied, his feet bound to a chair, his mouth covered by tape and his eyes blindfolded. They started mauling him. Initially, he claimed he was kicked and punched on the chest and thighs. When asked further whether he suffered bruises and broken ribs, he answered in the negative. Thereafter, he explained that there were no visible signs of physical abuse on his body as he was only punched, not kicked. Notwithstanding the maltreatment he suffered, the accused claimed he stood firm on his denial that he was dealing with illicit drugs.[7 To corroborate accuseds testimony, the defense presented MANUEL DE GUZMAN, a resident of Baguio City and a neighbor of accuseds brother Nick Garcia. He came to know the accused in 1994 when accused visited his brother Nick, a few months before accused was arrested in November that same year. He recounted that in the afternoon of November 28, 1994, while he was walking along Rizal Park, he noticed two (2) men holding the accuseds hands and forcing him to a car. He was then about 8-10 meters away. He did not see the accused or any of the two men carrying a bag.[8 In a Decision, dated January 29, 1996, RTC Judge Pastor de Guzman, Jr.[9 found the accused guilty of illegal possession of prohibited drugs and sentenced him to suffer the maximum penalty of death. The dispositive portion reads: WHEREFORE, premises considered, the Court finds the accused Jesus Garcia y Manabat guilty of the violation of Section 8, Art. II of R.A. 6425 as amended by R.A. 7659, involving possession of marijuana weighing 5 kilograms, beyond reasonable doubt. The penalty for the possession of marijuana weighing 5 kilograms as provided under R.A. 6425 as amended by R.A. 7659 is Death. The Court has no recourse but to sentence the accused Jesus Garcia y Manabat to suffer the death penalty. The law is harsh but it must be followed and obeyed, dura lex sed lex. SO ORDERED. The decision was promulgated on February 20, 1996. On February 26, 1996, the accused moved for reconsideration.[10He reiterated his position that the uncorroborated testimony of prosecution witness Inspector Enmodias was insufficient to establish his guilt. He further contended that he should only be punished with reclusion perpetua. On April 12, 1996, Judge de Guzman, Jr. filed an application for disability retirement. This Court, in its en banc Resolution,[11 dated June 18, 1996, approved his application. The effectivity of his retirement was made retroactive to February 16, 1996. On August 6, 1996, Acting Presiding Judge Eulogio Juan R. Bautista issued an Order[12granting in part accuseds Motion for Reconsideration. For lack of aggravating circumstance, the accuseds penalty for illegal possession of marijuana was reduced from death to reclusion perpetua. In the case at bar, appellant impugns his conviction on the following grounds: (a) the decision convicting him of the crime charged was not validly promulgated as the promulgation was made (4) days after the retirement of the judge who penned the decision; (b) the uncorroborated testimony of prosecution witness Senior Inspector Enmodias is insufficient to establish his guilt beyond reasonable doubt. First, we shall thresh out the procedural matter raised by appellant. In his Motion for Clarification,[13 appellant contends that since the decision under review was promulgated on February 20, 1996, four (4) days after the approved retirement of Judge de Guzman, Jr., his decision is void and has no binding effect.[14 We reject this contention. Undisputably, a decision promulgated after the retirement of the judge who signed it is null and void. Under the Rules on Criminal Procedure,[15 a decision is valid and binding only if penned and promulgated by the judge during his incumbency. To be precise, a judgment has legal effect only when it is rendered: (a) by a court legally constituted and in the actual exercise of judicial powers, and (b) by a judge legally appointed, duly qualified and actually acting either de jureor de facto.[16 A judge de jureis one who exercises the office of a judge as a matter of right, fully invested with all the powers and functions conceded to him under the law. A judge de facto is one who exercises the office of judge under some color of right. He has the reputation of the officer he assumes to be, yet he has some defect in his right to exercise judicial functions at the particular time.[17 In the case at bar, the decision under review was validly promulgated. Although the effectivity of Judge de Guzman, Jr.s disability retirement was made retroactive to February 16, 1996, it cannot be denied that at the time his subject decision was promulgated on February 20, 1996, he was still the incumbent judge of the RTC, Branch LX of Baguio City, and has in fact continued to hold said office and act as judge thereof until his application for retirement was approved in June 1996. Thus, as of February 20, 1996 when the decision convicting appellant was promulgated, Judge de Guzman, Jr. was actually discharging his duties as a de facto judge. In fact, as of that time, he has yet to file his application for disability retirement. To be sure, as early as 1918, we laid down the principle that where the term of the judge has terminated and he has ceased to act as judge, his subsequent acts in attempting to dispose of business he left unfinished before the expiration of his term are void.[18 However, in the present case, as Judge de Guzman, Jr. was a de facto judge in the actual exercise of his office at the time the decision under review was promulgated on February 20, 1996, said decision is legal and has a valid and binding effect on appellant.[19 On the merits, we likewise affirm appellants conviction. In his Memorandum[20before the trial court, appellant insisted that the prosecution was unable to discharge its onus of establishing his guilt beyond reasonable doubt. He maintained that the uncorroborated testimony of the prosecutions main witness, Senior Inspector Enmodias, is incredible and unreliable. Firstly, appellant pointed out that if the police officers indeed smell and the marijuana he was allegedly carrying while they were all on board the jeepney, they should have immediately arrested him instead of waiting for him to alight and stroll at the Rizal Park. Secondly, appellant faulted the procedure adopted by the arresting officers who, after the arrest, took him to the CIS Office at the Baguio Water District Compound for investigation instead of bringing him to the nearest police station, as mandated under Section 5, Rule 113 of the Rules on Criminal Procedure. Finally, appellant theorized that the prosecutions omission or failure to present the other arresting officer, SPO3 Panganiban, to corroborate the testimony of its witness Senior Inspector Enmodias was fatal to the prosecutions case as the lone testimony of Enmodias failed to prove his guilt beyond reasonable doubt. These contentions of appellant fail to persuade. The prosecution was able to prove appellants guilt beyond reasonable doubt. There is nothing irregular in the manner appellant was apprehended by the police authorities. On the contrary, we find that, without compromising their sworn duty to enforce the law, the police officers exercised reasonable prudence and caution in desisting to apprehend appellant inside the jeepney when they initially suspected he was in possession of marijuana. They sought to verify further their suspicion and decided to trail appellant when the latter alighted from the jeepney. It was only after they saw that one of the packages with the torn wrapper contained what looked like marijuana fruiting tops did they accost appellant and make the arrest. At that precise time, they had obtained personal knowledge of circumstances indicating that appellant had illicit drugs in his possession. They had reasonable ground upon which to base a lawful arrest without a warrant. Neither do we find anything irregular with the turn over of appellant to the CIS Office. At the trial, it was sufficiently clarified that this has been the practice of the arresting officers as their office had previously arranged with the CIS for assistance with respect to investigations of suspected criminals, the CIS office being more specialized in the area of investigation.[21 Neither can the police officers be held liable for arbitrarily detaining appellant at the CIS office. Article 125 of the Revised Penal Code, as amended, penalizes a public officer who shall detain another for some legal ground and fail to deliver him to the proper authorities for 36 hours for crimes punishable by afflictive or capital penalties. In the present case, the record bears that appellant was arrested for possession of five (5) kilos of marijuana on November 28, 1994 at 2 p.m., a crime punishable with reclusion perpetua to death. He was detained for further investigation and delivered by the arresting officers to the court in the afternoon of the next day. Clearly, the detention of appellant for purposes of investigation did not exceed the duration allowed by law, i.e., 36 hours from the time of his arrest. Coming now to appellants defense, we find that his simplistic version of what transpired that fateful day utterly failed to rebut the overwhelming evidence presented by the prosecution. His testimony is not worthy of credence. Firstly, appellant insists he did not bring any travelling bag or personal items with him.[22 However, we find it baffling that one would visit a relative in a distant province and fail to bring clothes and other personal belongings for the duration of his stay. Secondly, while appellant repeatedly emphasized that he went to Baguio City to visit his brother whom he had not seen for ten years,[23his corroborating witness, de Guzman, adamantly insisted that the first time he met appellant was only months before the arrest.[24 Thirdly, we find it altogether disturbing that appellant, without compunction, acknowledged in open court that he lied when he initially claimed he was kicked by the police officers while under their custody. After testifying that he was kicked and punched on the chest and thighs, appellant unwittingly declared that he suffered no broken ribs or internal injury as a result of the alleged mauling. Realizing the improbability of his claim of maltreatment, he promptly altered his previous testimony. He sought to explain the lack of visible signs of physical abuse on his body by clarifying that he was only punched, not kicked, by the police authorities.[25 Lastly, it runs counter to common experience that an innocent person, wrongly accused of a crime and subjected to alleged physical abuse by the authorities would keep mum about his plight. Yet, appellant, through all the sufferings he supposedly underwent, would have us believe that he has not confided to anyone, not even to his brother, his version of the incident, not to mention the maltreatment he supposedly endured in the hands of the police authorities.[26 In sum, appellants defense lacks the ring of truth. Neither did the testimony of appellants corroborating witness aid the defense as it is equally flawed. De Guzman testified that he saw appellant being held by two men and being forced into a car, yet he never revealed what he saw to appellants brother Nick. No explanation was offered for this omission. Although de Guzman thought that the two men harbored ill intentions in abducting appellant, he never reported the incident to the police nor told Nick, appellants brother, about what he witnessed. In fact, it was when Nick told him that appellant was in jail that de Guzman allegedly mentioned to Nick what he saw days earlier.[27 Treated separately, the incongruent details in the defense theory may appear innocuous at first blush. However, the inconsistencies eventually add up, striking at the very core of appellants defense -- the real purpose of his presence at the crime scene. The contradictions become disturbing as they remain unsatisfactorily explained by the defense and unrebutted on record. In sum, we find the testimony of Senior Inspector Enmodias credible to sustain a judgment of conviction. We reiterate the familiar rule that the testimony of a single witness, if positive and credible, is enough to convict an accused. For indeed, criminals are convicted not on the number of witnesses presented against them, but on the credibility of the testimony of even one witness.[28 It bears stress that it is the quality, not the quantity, of testimony that counts.[29 To be sure, a corroborative testimony is not necessary where the details of the crime have been testified to with sufficient clarity.[30 As there was nothing to indicate in this case that police officer Enmodias was inspired by ill-motive to testify mendaciously against appellant, the trial court had every reason to accord full faith and credit to his testimony.[31 On a final note: The death sentence originally imposed on appellant was correctly modified by the trial court and reduced to reclusion perpetua as there was no aggravating circumstance present in the commission of the crime. However, both the Decision and Order of the trial court omitted to impose the penalty of fine.[32 IN VIEW WHEREOF, the Order, dated August 6, 1996, affirming the conviction of appellant JESUS GARCIA y MANABAT for violation of Section 8, Article II of R.A. 6425, as amended by R.A. 7659, but reducing his penalty to reclusion perpetua is AFFIRMED, subject to the modification that additional penalty of fine in the amount of ten million (P10,000,000.00) pesos is likewise imposed on him. Costs against appellant. SO ORDERED. Davide, Jr., C.J ., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Manila
THIRD DIVISION
RODOLFO ABENES y G.R. No. 156320 GACUTAN, Petitioner, Present:
YNARES-SANTIAGO, J., - versus - Chairperson, AUSTRIA-MARTINEZ, CALLEJO, SR., and THE HON. COURT OF CHICO-NAZARIO, JJ. APPEALS and PEOPLE OF THE PHILIPPINES, Promulgated: Respondents. February 14, 2007 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
Abenes v. CAGR No. 15632014 February 2007 Austria-Martinez, J. Rodolfo Abenes, a barangaychairman, was charged withillegal possession of high powered firearm and itsammunitions during the election period. Two Informations were filed for (1) illegal possession of firearms and its ammunitions; and (2) violation of the Omnibus Election Code.The firearm was confiscatedfrom Abenes at a checkpointwherein his vehicle was stopped and he was asked to alight the same for routine inspection. The police saw the firearm tucked in his waist, and asked him to produce a license for it. When Abenes could not produce one, the police confiscated the firearm. It was then found that Abenes was not a registered nor a licensed firearm holder. The trial court then convicted Abenes on both charges. Abenes appealed to the CA alleging that the checkpoint was not shown to have been legally set up, and that his constitutional right against unlawful search and seizure was violated. The CA affirmed the trial court. 1. W/N the checkpoint was legally set up. 2. W/N Abenes constitutional right against unlawful search and seizure had been violated.
1. YES. The production of a mission order is not necessary in view of the fact that the checkpoint was established three days before the May 11, 1998elections; and the circumstancesunder which the policemenfound the gun warranted itssei zure without a warrant (plainview).
2. NO. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating Abenes where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when Abenes alighted from the vehicle. However, there is insufficient evidence that the firearm Abenes carried had no license. Thus, for failure of the prosecution to prove beyond reasonable doubt that Abenes was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminalliability under the illegal possession of firearms law.However, Abenes is stillconvicted for violation of theComel ec Gun Ban. Not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way leastintrusive to motorists areallowed. For as long as thevehicle is neither searched nor its occupants subjected to a body search, and the inspection of thevehicle is limited to a visualsearch, said routine checkscannot be regarded as violative of an individuals right against unreasonable search. Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine applies when the following requisites concur:(a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area;(b) the discovery of the evidence in plain view is inadvertent;(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision dated November 29, 2002 of the Court of Appeals (CA) which affirmed the Joi nt Decision of the Regional Trial Court (RTC) of Pagadian City, Branch 19, dated June 5, 2000, fi nding Rodolfo Abenes y Gacutan (petitioner) guilty beyond reasonable doubt of Ill egal Possession of High Powered Firearm and Ammunition under Presidential Decree No. 1866 (P.D. No. 1866) i n Cri minal Case No. 4559-98, and of violating Section 261(q) of Batas Pambansa Blg. 881 (B.P. Blg. 881), otherwise known as the Omni bus El ection Code, vis--vis COMELEC Resolution No. 2958 (Gun Ban) in Crimi nal Case No. 4563-98.
Petitioner was charged under the following Informati ons: In Crimi nal Case No. 4559-98
The undersi gned Assi stant Ci ty Pr osecutor hereby accuses RODOLFO ABENES Y GACUTAN of the offense of I LLEGAL POSSESSI ON OF HI GH POWERED FI REARM & I TS AMMUNI TI ONS (Vi ol ati on of P. D. No. 1866, as amended by R. A. No. 8294), commi tted as fol l ows:
On May 8, 1998, at about 10: 30 a. m. , i n Danl ugan, Pagadi an Ci ty, Phi l i ppi nes, wi thi n the j uri sdi cti on of thi s Honorabl e Court, sai d RODOLFO ABENES Y GACUTAN di d, then and there, wi l l ful l y, unl awful l y, and wi thout any pri or authori ty, l i cense or permi t to possess or carry the f i rearm hereunder descri bed, have i n hi s possessi on and control the fol l owi ng fi rearm cl assi fi ed as hi gh powered, wi th i ts correspondi ng ammuni ti ons and accessory, vi z:
- one (1) cal . 45 pi stol (NORI NCO) beari ng SN 906347; - one (1) magazi ne f or pi stol cal . 45 - seven (7) rounds l i ve ammuni ti ons for cal . 45,
i n gross vi ol ati on of P. D. No. 1866 as amended by R. A. No. 8294.
CONTRARY TO LAW.
In Crimi nal Case No. 4563-98
The undersi gned Assi stant Ci ty Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of El ecti on Offense i n vi ol ati on of Sec. 261 (9), BP 881 (OMNI BUS ELECTI ON CODE), vi s --vi s COMELEC RESOLUTI ON # 1958 (GUN BAN), commi tted as fol l ows:
On May 8, 1998, at about 10: 30 a. m. wi thi n the El ecti on peri od whi ch i s f rom January 11, 1998 to June 30, 1998, i n Danl ugan, Pagadi an Ci ty, Phi l i ppi nes, wi thi n the j uri sdi cti on of thi s Honorabl e Court, sai d RODOLFO ABENES Y GACUTAN di d, then and there, wi l l ful l y, and unl awful l y, carry i n hi s person a cal . . 45 ( NORI NCO) pi stol , beari ng seri al number 906347, and l oaded wi th seven (7) rounds of l i ve ammuni ti ons, wi thout any pri or authori ty from the COMELEC i n gross vi ol ati on of Sec. 261 (9) of BP 881 (OMNI BUS ELECTI ON CODE) i n rel ati on to COMELEC RESOLUTI ON No. 2958 (GUN BAN) .
CONTRARY TO LAW.
Upon arrai gnment, the peti tioner pleaded not guilty. Trial ensued.
The facts, as found by the RTC and summarized by the CA, are as follows:
The prosecuti on showed that three days pri or to the May 11, 1998 nati onal and l ocal el ecti ons, the Phi l i ppi ne Nati onal Pol i ce (PNP) of Pagadi an Ci ty, through i ts Company Commander Maj or Pedroni sto Quano, created a team composed of seven pol i cemen wi th a di recti ve to establ i sh and man a checkpoi nt i n Barangay Danl ugan at sai d ci ty, for the purpose of enf orci ng the Gun Ban whi ch was then bei ng i mpl emented by the COMELEC. SPO3 Ci pri ano Q. Pascua was the desi gnated team l eader.
The team proceeded to Barangay Danl ugan, arri vi ng thereat at 8: 15 i n the morni ng of May 8, 1998. Team l eader SPO3 Pascua coordi nated wi th the Barangay Chai rman of Danl ugan, and the team put up a road bl ock wi th the marki ng COMELEC GUN BAN. Vehi cl es passi ng through the road bl ock were requi red by the team to stop and thei r occupants were then pol i tel y requested to al i ght i n order to al l ow routi ne i nspecti on and checki ng of thei r vehi cl es. Motori sts who refused the request were not forced to do so.
At about 10: 30 i n the morni ng of the same day, a red Tamaraw FX tryi ng to pass through the check poi nt was stopped by the team and di rected to park at the si de of the road. As the occupants wi thi n the vehi cl e coul d not be seen through i ts ti nted wi ndows, SPO1 El i ezer Requej o, a member of the team, knocked on the vehi cl e s wi ndow and requested the occupants to step down for a routi ne i nspecti on. The ei ght occupants, whi ch i ncl uded the accused-appel l ant Rodol fo Abenes who i s the Barangay Chai rman of Tawagan Norte, Labangan, Zamboanga Del Sur, al i ghted f rom the vehi cl e. At thi s j uncture, SPO1 Requej o and SPO3 Pascua noti ced that a hol stered f i rearm was tucked at the ri ght wai st of Abenes. The fi rearm was readi l y vi si bl e to the pol i cemen; i t was not covered by the shi rt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a l i cense and authori ty to carry the fi rearm, and whether hi s possessi on was exempted f rom the Gun Ban bei ng enforced by the COMELEC. Accused answered i n the aff i rmati ve. The pol i cemen then demanded for the perti nent documents to be shown to support Abenes cl ai m. He coul d not show any. Hence, SPO1 Requej o confi scated Abenes fi rearm, whi ch was l ater i denti fi ed as a Nori nco . 45 cal i ber pi stol beari ng Seri al No. 906347, i ncl udi ng i ts magazi ne contai ni ng seven l i ve ammuni ti ons.
Subsequentl y SPO3 Pascua, usi ng hi s pri vatel y owned j eep, brought Abenes to the PNP Headquarters at Camp Abel on i n Pagadi an Ci ty. Upon reachi ng the Headquarters, SPO3 Pascua i ndorsed Abenes to Maj or Quano who i n turn referred Abenes to a certai n SPO2 Benvi eni do Al bon for further i nvesti gati on (TSN, August 24, 1998 [SPO3 Ci pri ano Q. Pascua] pp. 5-27, [SPO1 El i ezer Requej o] pp. 29-50).
A certi fi cati on dated May 18, 1998 from the Fi rearms and Expl osi ves Li cense Processi ng Secti on of the PNP, Pagadi an Ci ty di scl osed that Abenes i s not a regi stered nor a l i censed fi rearm hol der (Record of Cri mi nal Case No. 4559-98, p. 56) .
After the prosecuti on presented i ts evi dence, [the] accused f i l ed a Demurrer to Evi dence wi th Moti on to Di smi ss ( supra, pp. 72-79), whi ch was deni ed by the tri al court i n a Resol uti on dated March 5, 1999 (supra, pp. 80-82).
I n hi s defense, accused-appel l ant tri ed to establ i sh that the fi rearm di d not bel ong to and was not recovered from hi m; that the fi rearm was recovered by the pol i cemen f rom the fl oor of the vehi cl e i nsi de a cl utch bag whi ch was al l egedl y l ef t by an uni denti f i ed person who hi tched a ri de somewhere al ong the nati onal hi ghway of Tawagan Norte Zamboanga Del Sur and al i ghted near the Mabuhay Bazaar i n Pagadi an Ci ty (TSN, Jul y 12, 1999 [Noel Ri vera], pp. 7-13; September 15, 1999 [Rodol fo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado Gengani a], pp. 9-16).
On June 5, 2000, the RTC rendered i ts Joint Decision convicting the petitioner on both charges, the dispositive portion of whi ch states:
WHEREFORE, i n vi ew of al l the foregoi ng di scussi on, thi s Court hereby f i nds accused Rodol fo Abenes y Gacutan GUI LTY beyond reasonabl e doubt for Vi ol ati on of P. D. No. 1866, as amended by Republ i c Act No. 8294, havi ng been found i n possessi on wi thout l i cense/permi t of a Nori nco . 45 cal i ber pi stol beari ng Seri al No. 906347 and 7 rounds of ammuni ti ons and sentences hi m to i mpri sonment rangi ng from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of PRI SI ON CORRECCI ONAL i n i ts MEDI UM PERI OD, as MI NI MUM, to EI GHT (8) YEARS of PRI SI ON MAYOR i n i ts MI NI MUM, as MAXI MUM and a FI NE of THI RTY THOUSAND PESOS ( P30, 000. 00), Phi l i ppi ne currency. I nsofar as Cri mi nal Case No. 4559-98 i s concerned. The . 45 Cal i ber Pi stol aforementi oned and the seven (7) rounds of ammuni ti ons are hereby forfei ted i n favor of the government the same bei ng effects of the Vi ol ati on of P. D. 1866, amended.
As regards Cri mi nal Case No. 4563-98, thi s Court al so fi nds herei n accused Rodol fo Abenes y Gacutan GUI LTY of Vi ol ati on of Secti on 264, i n rel ati on to Secti on 261, paragraphs ( p) and ( q) of Batas Pambansa Bl g. 881, otherwi se known as the Omni bus El ecti on Code and sentences hi m to i mpri sonment for a peri od of ONE (1) YEAR, and i n addi ti on thereto, herei n accused i s di squal i f i ed to hol d any publ i c off i ce and depri ved [of] the ri ght of suffrage. I t shal l be understood that the sentence herei n i mposed shal l be served si mul taneousl y wi th the sentence i mposed i n Cri mi nal Case No. 4559-98.
SO ORDERED.
The RTC found that, as between the positive and categorical assertions of facts by the two pol icemen the witnesses for the prosecution and the mere deni al of the accused and his witnesses, the former must prevail over the latter; that the prosecution successfully proved that the peti ti oner had no li cense or permit to carry the firearm through the officer -i n-charge of the firearms and explosives offi ce who testified that, based on his records, the petitioner had not been issued a li cense, and whose testimony had not been impugned by the defense; and that the testimonies of the accused and his two witnesses to the effect that while aboard their private vehi cle and on their way to attend an el ection campai gn meeting, they si mply stopped and allowed a complete stranger to hitch a ri de who was carryi ng a clutch bag, left the same in the vehi cle when he alighted, and whi ch later turned out to contain the subj ect firearm, were fli msy and unbeli evable. The RTC ruled that the defense of ali bi or deni al cannot prevail over the positive identifi cation by eyewitnesses who have no i mproper motive to falsely testify against the petitioner, especially where the poli cemen and the petitioner do not know each other; and, that the petitioner failed to show any license or any other document to justify his lawf ul possession of the firearm.
The petitioner appeal ed to the CA clai ming that the checkpoi nt was not shown to have been l egall y set up, and/or that the friski ng of the petitioner who was ordered to alight from the Tamaraw FX, along with his compani ons in the vehi cl e, violated his consti tutional right against unl awful search and sei zure; and, that the tri al court erred i n beli eving the version of the inci dent as testifi ed to by the poli cemen instead of the version presented by the defenses witness which i s more consistent with truth and human experience.
On November 29, 2002, the CA rendered its Decision, the disposi tive portion of whi ch reads:
WHEREFORE, premi ses consi dered, the Joi nt Deci si on appeal ed from i s AFFI RMED wi th the MODI FI CATI ON that wi th respect to Cri mi nal Case No. 4559-98, accused-appel l ant i s sentenced to an i ndetermi nate penal ty of 4 years, 2 months and 1 day of pri si on correcci onal as mi ni mum to 7 years and 4 months of pri si on mayor as maxi mum.
SO ORDERED.
With respect to the vali di ty of the checkpoint, the CA found that not only do the police officers have in their favor the presumption that offi cial duti es have been regul arly performed, but also that the proximi ty of the day the checkpoi nt had been set up, to the day of the May 11, 1998 elections, specifi cally for the purpose of enforcing the COMELEC gun ban, gives a strong badge of the l egiti macy of the checkpoi nt; that after a review of the records, the evidence adduced by the prosecution prevai ls over the self-serving and uncorroborated clai m of the peti tioner that he had been framed; and, that with respect to the admissibil ity of the firearm as evidence, the prosecution witnesses convinci ngl y established that the .45 cali ber pistol , tucked i nto the right waist of the petitioner when he alighted from the vehicle, was readily visibl e, and, therefore, coul d be sei zed without a search warrant under the plai n vi ew doctrine.
The petitioner is now before this Court, raisi ng the following issues:
I .
GI VEN THE CI RCUMSTANCES, AND THE EVI DENCE ADDUCED, WAS THE CHECK-POI NT VALI DLY ESTABLI SHED?
I I .
GI VEN THE CI RCUMSTANCES, AND THE EVI DENCE ADDUCED, WAS THE PETI TI ONER S CONSTI TUTI ONAL RI GHT AGAI NST UNLAWFUL SEARCH AND SEI ZURE VI OLATED?
I I I .
GI VEN THE CI RCUMSTANCES, AND THE EVI DENCE ADDUCED, DI D NOT THE HONORABLE COURT OF APPEALS COMMI T A GRAVE ABUSE OF DI SCRETI ON FOR ADOPTI NG THE TRI AL COURT S UNSUBSTANTI ATED FI NDI NGS OF FACT?
I V.
GI VEN THE CI RCUMSTANCES, AND THE EVI DENCE ADDUCED, I S NOT THE PETI TI ONER ENTI TLED TO AN ACQUI TTAL, I F NOT ON THE GROUND THAT THE PROSECUTI ON FAI LED TO PROVE GUI LT BEYOND REASONABLE DOUBT, ON THE GROUND OF REASONABLE DOUBT I TSELF . . . AS TO WHERE THE GUN WAS TAKEN: FROM THE FLOOR OF THE VEHI CLE OR FROM THE WAI ST OF PETI TI ONER?
The appeal i s partly meritorious. The Court reverses the CAs findi ng of his conviction in Crimi nal Case No. 4559-98.
After a thorough review of the records, this Court is of the view that the courts a quo except for a notabl e exception with respect to the negative allegation in the Information are correct i n their findi ngs of fact. Indeed, the version of the defense, as found by the lower courts, is i mpl ausi ble and belies the common experience of manki nd. Evi dence to be believed must not only proceed from the mouth of a credi ble wi tness but it must be credi ble in i tself such as the common experience and observation of manki nd can approve as probable under the circumstances. In addition, the question of credibility of witnesses is primari ly for the trial court to determi ne. For this reason, its observations and conclusions are accorded great respect on appeal .
The trial court' s assessment of the credi bili ty of a witness is entitled to great weight. It is concl usive and bindi ng unless shown to be tainted with arbitrariness or unless, through oversight, some fact or circumstance of weight and i nfluence has not been consi dered. Absent any showi ng that the tri al j udge overlooked, misunderstood, or misapplied some facts or circumstances of weight whi ch woul d affect the result of the case, or that the j udge acted arbi trarily, his assessment of the credi bility of witnesses deserves high respect by appellate courts. Thus, the Court finds no cogent reason to disturb the fi ndi ngs of the lower courts that the poli ce found in pl ain view a gun tucked i nto the waist of the petitioner during the Gun Ban period enforced by the COMELEC.
So too must this Court uphol d the vali dity of the checkpoint. The petitioner i nsists that the prosecution shoul d have produced the mission order consti tuting the checkpoint, and invokes Aniag, Jr. v. Comelec, where the Court purportedly hel d that firearms sei zed from a motor vehi cle without a warrant are inadmissible because there was no indi cation that would trigger any suspicion from the poli cemen nor any other circumstance showing probable cause.
On both poi nts the peti tioner is wrong. In the present case, the production of the mission order is not necessary in view of the fact that the checkpoint was established three days before the May 11, 1998 el ections; and, the circumstances under whi ch the policemen found the gun warranted i ts seizure without a warrant.
In People v. Escao, the Court, through the ponencia of Chief Justice Hilario G. Davide, Jr., hel d:
Accused-appel l ants assai l the manner by whi ch the checkpoi nt i n questi on was conducted. They contend that the checkpoi nt manned by el ements of the Makati Pol i ce shoul d have been announced. They al so compl ai n of i ts havi ng been conducted i n an arbi trary and di scri mi natory manner.
We take j udi ci al noti ce of the exi stence of the COMELEC resol uti on i mposi ng a gun ban duri ng the el ecti on peri od i ssued pursuant to Secti on 52(c) i n rel ati on to Secti on 26(q) of the Omni bus El ecti on Code (Batas Pambansa Bl g. 881). The nati onal and l ocal el ecti ons i n 1995 were hel d on 8 May, the second Monday of the month. The i nci dent, whi ch happened on 5 Apri l 1995, was wel l wi thi n the el ecti on peri od.
Thi s Court has rul ed that not al l checkpoi nts are i l l egal . Those whi ch are warranted by the exi genci es of publ i c order and are conducted i n a way l east i ntrusi ve to motori sts are al l owed. For, admi ttedl y, routi ne checkpoi nts do i ntrude, to a certai n extent, on motori sts ri ght to "free passage wi thout i nterrupti on, " but i t cannot be deni ed that, as a rul e, i t i nvol ves onl y a bri ef detenti on of travel ers duri ng whi ch the vehi cl e s occupants are requi red to answer a bri ef questi on or two. For as l ong as the vehi cl e i s nei ther searched nor i ts occupants subj ected to a body search, and the i nspecti on of the vehi cl e i s l i mi ted to a vi sual search, sai d routi ne checks cannot be regarded as vi ol ati ve of an i ndi vi dual s ri ght agai nst unreasonabl e search. I n fact, these routi ne checks, when conducted i n a fi xed area, are even l ess i ntrusi ve.
The checkpoi nt herei n conducted was i n pursuance of the gun ban enforced by the COMELEC. The COMELEC woul d be hard put to i mpl ement the ban i f i ts deputi zed agents were l i mi ted to a vi sual search of pedestri ans. I t woul d al so defeat the purpose for whi ch such ban was i nsti tuted. Those who i ntend to bri ng a gun duri ng sai d peri od woul d know that they onl y need a car to be abl e to easi l y perpetrate thei r mal i ci ous desi gns.
The facts adduced do not consti tute a ground for a vi ol ati on of the consti tuti onal ri ghts of the accused agai nst i l l egal search and sei zure. PO3 Suba admi tted that they were merel y stoppi ng cars they deemed suspi ci ous, such as those whose wi ndows are heavi l y ti nted j ust to see i f the passengers thereof were carryi ng guns. At best they woul d merel y di rect thei r fl ashl i ghts i nsi de the cars they woul d stop, wi thout openi ng the car s doors or subj ect i ng i ts passengers to a body search. There i s nothi ng di scri mi natory i n thi s as thi s i s what the si tuati on demands. (Emphasi s suppl i ed)
Thus, the Court agrees with the Solicitor General that petitioners reliance on Ani ag is misplaced.
In Ani ag, the pol ice officers manning the checkpoint near the Batasang Pambansa compl ex stopped the vehi cl e dri ven by the driver of Congressman Aniag. After stoppi ng the vehi cle, the poli ce opened a package i nside the car which contai ned a firearm purportedly belongi ng to Congressman Ani ag. In declari ng the search illegal, the Supreme Court stated that the l aw enforcers who conducted the search had no probabl e cause to check the content of the package because the driver di d not behave suspi ciousl y nor was there any previous i nformation that a vehi cl e hi di ng a firearm woul d pass by the checkpoint.
In the i nstant case, the firearm was seized from the petitioner when i n plai n vi ew, the poli cemen saw it tucked i nto his waist uncovered by his shirt.
Under the plain vi ew doctri ne, obj ects fal ling in the plai n view of an officer who has a right to be in the position to have that view are subject to sei zure and may be presented as evi dence. The plai n view doctri ne applies when the following requisites concur: (a) the law enforcement officer in search of the evi dence has a prior justifi cation for an intrusion or is in a position from whi ch he can view a parti cular area; (b) the discovery of the evi dence i n plai n view is inadvertent; and (c) it is immedi ately apparent to the offi cer that the i tem he observes may be evi dence of a crime, contraband or otherwise subject to sei zure.
All the foregoing requirements are present i n the i nstant case. The law enforcement officers lawfully made an initi al intrusion because of the enforcement of the Gun Ban and were properly i n a position from whi ch they particularly viewed the area. In the course of such lawful intrusion, the poli cemen came inadvertently across a piece of evi dence incri minati ng the petitioner where they saw the gun tucked i nto his waist. The gun was in plai n view and discovered inadvertently when the petitioner al ighted from the vehi cle.
As accurately found by the CA:
xxx I t must be emphasi zed that the pol i cemen di scovered the fi rearm [on] the person of the [peti ti oner] shortl y after he al i ghted from the vehi cl e and before he was fri sked. SPO3 Pascua s testi mony[, ] corroborated by that of SPO1 Requej o[, ] convi nci ngl y esta bl i shed that the hol stered . 45 cal i ber pi stol tucked at the ri ght wai st of the [peti ti oner] was readi l y vi si bl e to the pol i cemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwi thstandi ng the absence of a Search Warrant, the pol i cemen may val i dl y sei ze the fi rearm and the same i s admi ssi bl e i n evi dence agai nst the [peti ti oner] pursuant to the pl ai n vi ew doctri ne xxx.
Nor can the Court believe petitioners clai m that he could not have freely refused the poli ce orders issued by the police team who were armed to the teeth and i n the face of such show of force. The courts a quo consistently found that the poli ce team manni ng the checkpoi nt poli tely requested the passengers to alight from their vehi cles, and the motorists who refused this request were not forced to do so. These fi ndi ngs of fact are fully supported by the evi dence i n the record.
However, the Court must underscore that the prosecution failed to satisfactorily prove the negative allegation i n the Information that the petitioner possessed no li cense or permit to bear the subject firearm.
It is a well -entrenched rul e that in cri mes i nvol ving ill egal possession of firearm, the prosecution has the burden of provi ng the elements thereof, viz: the existence of the subj ect firearm, and the fact that the accused who owned or possessed the fi rearm does not have the correspondi ng li cense or permit to possess the same.
Undoubtedly, it is the consti tutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of fi rearm, and every ingredi ent or essential element of an offense must be shown by the prosecution by proof beyond reasonabl e doubt.
Witness for the prosecution SPO4 Gilbert C. Senados admi tted that his records were outdated, i.e., that his Master Li st of hol ders of firearms only covered li censes up to 1994; that i t was possible for the petitioner to acquire a li cense after 1994; and that he issued the Certification, dated May 18, 1998, stati ng that the petitioner carried no license or permit to possess the guns because he was ordered to do so by his superiors.
There is no evidence that between 1994 and May 8, 1998, the date the crime was allegedl y committed, no license was issued to petitioner.
While the prosecution was able to establ ish the fact that the subj ect firearm was seized by the police from the possession of the petitioner, without the latter bei ng abl e to present any license or permit to possess the same, such fact alone is not concl usive proof that he was not l awfully authori zed t o carry such fi rearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convinci ng evidence, li ke a certifi cation from the government agency concerned.
Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended.
With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof.
Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded, provides:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
(q) Carrying firearms outside residence or place of business. Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.
x x x x (Emphasis supplied)
Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides:
SEC. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied)
In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.
Section 32 of R.A. No. 7166 is clear and unequivocal that the prohibited act to which this provision refers is made up of the following elements: 1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the election period; and, 3) the weapon is carried in a public place. Under said provision, it is explicit that even if the accused can prove that he is holding a valid license to possess such firearm, this circumstance by itself cannot exculpate him from criminal liability. The burden is on the accused to show that he has a written authority to possess such firearm issued by no less than the COMELEC.
On this point, the petitioner failed to present any form of such authority, and, therefore, his conviction must be affirmed.
Section 264 of the Omnibus Election Code provides:
Sec. 264. Penalties. Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.
The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply Section 1 of the Indeterminate Sentence Law which provides:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.
Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum.
Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be disposed of according to existing laws, which, in this case, must be read in light of Article 45 of the Revised Penal Code, to wit:
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed for the commission of a felony shall carry with it the forefeiture of the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
WHEREFORE, the petition is partly GRANTED. The Decision dated November 29, 2002 of the Court of Appeals is REVERSED and SET ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, as amended, for failure of the prosecution to prove his guilt beyond unreasonable doubt.
With respect to Criminal Case No. 4563-98, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced to an indeterminate sentence of one year of imprisonment as minimum to two years of imprisonment as maximum, not subject to probation; and he shall suffer DISQUALIFICATION to hold public office and DEPRIVATION of the right of suffrage. The subject firearm is CONFISCATED and FORFEITED in favor of the Government. SO ORDERED.