Title II DAVID VS MACAPAGAL-ARROYO

SANDOVAL-GUTIERREZ, J.: All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1] Superior strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty. Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their constitutional validity.[2] These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?[3] On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. She cited the following facts as bases: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the peoples confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo.[4] They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners counsels. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual bases.

While he explained that it is not respondents task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms. [5] On February 17, 2006, the authorities got hold of a document entitled Oplan Hackle I which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself.[6] Upon the advice of her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground. On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I. On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to disavow any defection. The latter promptly obeyed and issued a public statement: All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty. On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems go for the planned movement against Arroyo.[8] B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal declared: The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it.[9] On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field. He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006. Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.[10] By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region. For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that warrantless arrests and take-over of facilities, including media, can already be implemented.[11] Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.[13] A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. The PNP warned that it would take over any media organization that would not follow standards set by the government during the state of national emergency. Director General Lomibao stated that if they do not follow the standards and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of national emergency. He asked for balanced reporting from broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.[14] Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the Batasan 5 decided to stay indefinitely. Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions. On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent. In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of censorship or prior restraint. They also claimed that the term emergency refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is absolutely no emergency that warrants the issuance of PP 1017. In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of legislative powers; violation of freedom of expression and a declaration of martial law. They alleged that President Arroyo gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so. In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the Constitution. In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an arbitrary and unlawful exercise by the President of her Martial Law powers. And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that it amounts to an exercise by the President of emergency powers without congressional approval. In addition,

petitioners asserted that PP 1017 goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code. And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution. In this regard, she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and redress of grievances. On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be summarized as follows: A. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whether the Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge A. PROCEDURAL First, we must resolve the procedural roadblocks. I- Moot and Academic Principle One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must be some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial review.[22] But the power of judicial review does not repose upon the courts a self-starting capacity.[23] Courts may exercise such power only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question

of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself.[24] Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy admitting of specific relief.[25] The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered moot and academic by President Arroyos issuance of PP 1021. Such contention lacks merit. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,[26] so that a declaration thereon would be of no practical use or value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29] The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.[30] The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;[31] second, the exceptional character of the situation and the paramount public interest is involved;[32] third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;[33] and fourth, the case is capable of repetition yet evading review.[34] All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees.[35] And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.[36] However, they failed to take into account the Chief Justices very statement that an otherwise moot case may still be decided provided the party raising it in a proper case has been and/or continues to

be prejudiced or damaged as a direct result of its issuance. The present case falls right within this exception to the mootness rule pointed out by the Chief Justice. II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as a right of appearance in a court of justice on a given question.[37] In private suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the real-party-in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[40] In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.

PEOPLE VS FLORES PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AARON FLORES @ RONITO, SULPECIO SILPAO y ORTEGA @ SULPING and EDGAR VILLERAN y MAGBANUA, accused-appellants. DECISION YNARES-SANTIAGO, J.: Sgt. Wennie Tampioc, Detachment Commander of the 7th Infantry Brigade detailed at Barangay Tabu, Ilog, Negros Occidental, and three (3) members of the local Citizen Armed Force Geographical Unit (CAFGU) under his supervision, namely, Aaron Flores alias Ronito, Sulpecio Silpao y Ortega alias Sulping and Edgar Villeran y Magbanua, were charged before the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61, with Kidnapping and Serious Illegal Detention. The Information charged as follows: That on or about the 29th day of September, 1992, in the Municipality of Ilog, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with high powered firearms conspiring, confederating and helping one another, by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously take, kidnap, detain and keep under guard one SAMSON SAYAM y GEPANAO from Km 117, Hda. Shangrella (sic), Brgy. Tabu, of the above-named municipality, and bring the latter to their detachment at Brgy. Tabu, under restraint and against his will, without proper authority thereof, thereby depriving said victim of his civil liberty since then up to the present. CONTRARY TO LAW.[1] All the four accused pleaded Not Guilty when arraigned. Trial ensued and, based on the testimonial evidence presented, the trial court found the following antecedent facts to be undisputed. On the night of September 29, 1992, the victim, Samson Sayam, was drinking beer at the store owned by Terry Cabrillos located at Barangay Tabu, Ilog, Negros Occidental. Sgt. Wennie Tampioc, Aaron Flores, Sulpecio Silpao and Edgar Villeran were at the same store drinking beer. Sayam joined the four accused at their table. Sometime later, all the accused and the victim left the store and walked towards the direction of the military detachment headquarters. After the accused left the store with Samson Sayam, witnesses heard a single gunshot followed by rapid firing coming from the direction of the detachment headquarters.[2] That was the last time Samson Sayam was seen, and despite diligent efforts of Sayams mother and relatives, he has not been found. It was the prosecutions contention that on that fateful evening, all four accused hatched a conspiracy to kidnap the victim and thereafter detain him at the detachment headquarters. They allegedly succeeded in their plot and, the prosecution avers, to this day the accused have not released Samson Sayam. All the accused, however, vehemently denied committing the acts charged. The trial court held that the testimonial evidence failed to prove beyond reasonable doubt the existence of a conspiracy among the four accused. More specifically, the prosecution failed to show an apparent common design by and among the accused to kidnap and detain Samson Sayam against his will. Thus, the trial court proceeded to determine the individual liabilities of

the four accused based on the degree of their participation in the commission of the offense charged. The trial court gave credence to the prosecutions evidence that Samson Sayam was seen being forcibly dragged out of the store and pulled towards the direction of the detachment headquarters by accused Aaron Flores, Sulpecio Silpao and Edgar Villeran. Since Samson Sayam had not been seen nor heard from since then, the trial court held that the three accused were responsible for the formers disappearance. As regards Wennie Tampioc, the trial court found that he left the store ahead of the three (3) coaccused and, thus, had nothing to do with the disappearance of Samson Sayam. Notably, none of the prosecution witnesses specifically or categorically mentioned Tampioc as among those who actively participated in bringing Samson Sayam by force to their headquarters. Unlike his co-accused who are natives of the place of the incident, Wennie Tampioc was newly assigned as Detachment Commander and did not know Samson Sayam, such that no ill-motive was attributed to him by the trial court. Likewise, the testimonies of prosecution witnesses Nelson Golez, on the one hand, and that of Carlos Manlangit, on the other hand, conflict as to the kind of firearm allegedly carried by Tampioc. While Golez stated that he was armed with an Armalite rifle,[3] Manlangit testified that Tampioc was armed with a short firearm.[4] More importantly, the trial court found that the identity of Sgt. Tampioc as one of the perpetrators of the crime was doubtful, because notwithstanding the fact that Nelson Golez knew Wennie Tampioc even before September 29, 1992,[5] the original complaint filed before the Municipal Circuit Trial Court of Ilog Candoni, dated October 21, 1992, which was based on the affidavits of Golez and Carlito Manlingit, did not mention Wennie Tampioc as one of the respondents. The said affidavits merely mentioned an unidentified member of the 7th IB, Philippine Army, assigned at Brgy. Tabu, detachment. At the time of the execution of the affidavits, the witnesses could have known that Wennie Tampioc was a sergeant, and that he was the commander of the detachment. Finally, the straightforward and emphatic manner in which Wennie Tampioc testified inspired belief in the trial courts mind.[6] On December 8, 1993, the trial court rendered the assailed judgment, the dispositive portion of which states: WHEREFORE, premises considered, this Court finds the accused Aaron Flores, Edgar Villeran and Sulpecio Silpao GUILTY beyond reasonable doubt of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code and are each sentenced to suffer the penalty of Reclusion Perpetua; and there being no proof that Samson Sayam is dead, they are ordered to pay him jointly and severally, or, in the alternative, his heirs the sum of Fifty Thousand (P50,000.00) Pesos as damages, without subsidiary imprisonment in case of insolvency and to pay the costs of this suit. The accused Wennie Tampioc is ACQUITTED on grounds of reasonable doubt. The bail bonds of the said accused are ordered cancelled and the convicted accused ordered confined pending appeal if they so file an appeal, in accordance with Administrative Circular No. 2-92, dated January 20, 1992 of the Supreme Court. SO ORDERED.[7]

Two (2) separate appeals were brought before us. Accused-appellant Sulpecio Silpao raised the following errors: I. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SULPECIO SILPAO OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION, UNDER ARTICLE 267, REVISED PENAL CODE. II. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED-APPELLANT CAFGU SULPECIO SILPAO, AS AMONG THOSE WHO FORCIBLY BROUGHT SAMSON SAYAM TO THEIR HEADQUARTERS IN THE EVENING OF 29 SEPTEMBER 1992 AND RESPONSIBLE FOR SAMSON SAYAMS DISAPPEARANCE. III. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT CAFGU SULPECIO SILPAO GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED. On the other hand, accused-appellants Aaron Flores and Edgar Villeran interposed a joint appeal based on the sole error that: THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANTS AARON FLORES AND EDGAR VILLERAN GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION BASED ON CIRCUMSTANTIAL AND INSUFFICIENT EVIDENCE. After a thorough review of the facts and evidence adduced before the trial court, we find that accused-appellants should be acquitted of the offense charged against them. The crime of Kidnapping and Serious Illegal Detention is defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659. The elements of the offense are: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances are present: (a) That the kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating public authority; (c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person kidnapped is a minor, female or public officer.[8] Clearly, accused-appellants cannot be charged with or convicted of the crime of Kidnapping and Serious Illegal Detention, since the first element of the said crime is that the offender must be a private individual. In the case at bar, accused-appellants were members of the local CAFGU at the time the alleged crime was committed.

The CAFGU was created pursuant to Executive Order No. 264 for the purpose of complementing the operations of the regular force formations in a locality.[9] It was composed of civilian volunteers who were tasked to maintain peace and order in their localities, as well as to respond to threats to national security. As such, they were provided with weapons, and given the authority to detain or order detention of individuals.[10] The Solicitor General recognizes the error of charging and convicting accused-appellants of Kidnapping and Serious Illegal Detention for the reason that the appellants are not private individuals, but public officers. As such, the Solicitor General submits that, under the facts alleged, accused-appellants can only be liable for the crime of Arbitrary Detention, defined and penalized in Article 124 of the Revised Penal Code. The prosecution maintains that inasmuch as all the other elements of Arbitrary Detention were alleged in the criminal information filed against the accused-appellants, they may still be convicted of said crime. Arbitrary detention is committed by any public officer or employee who, without legal grounds, detains a person.[11] Since it is settled that accused-appellants are public officers, the question that remains to be resolved is whether or not the evidence adduced before the trial court proved that Samson Sayam was arbitrarily detained by accused-appellants. As far back as the case of U.S. v. Cabanag,[12] it was held that in the crime of illegal or arbitrary detention, it is essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved,[13] just as the intent of the accused to deprive the victim of his liberty must also be established by indubitable proof.[14]1 In the more recent case of People v. Fajardo,[15] this Court reiterated the ruling in U.S. v. Cabanag, i.e., there must be uncontroverted proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction. Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty.[16] A careful review of the records of the instant case shows no evidence sufficient to prove that Samson Sayam was detained arbitrarily by accusedappellants. While the prosecution witnesses testified that accused-appellants were seen walking with Samson Sayam toward the direction of the detachment headquarters, there is no shred of evidence that he was actually confined there or anywhere else. The fact that Samson Sayam has not been seen or heard from since he was last seen with accused-appellants does not prove that he was detained and deprived of his liberty. The prosecution, however, argues that Samson Sayam was deprived of his liberty when accused-appellants forced him to go with them when they left the store of Jerry Cabrillos and brought him to the detachment headquarters. We assayed the testimonies of the prosecutions main witnesses, namely, Carlito Manlangit and his son Jerry Manlangit. Carlito Manlangits testimony was offered to prove that Samson Sayam was forcibly taken from the store and that the latter tried his best to free himself from his abductors. And yet, all that Carlito testified to was that he saw Samson Sayam crossing the street alone from the store of a certain Moleng; that the four accused, who were armed, followed Sayam and asked for his residence certificate; that the four accused apprehended Samson Sayam and brought him to the detachment headquarters; and that he went home after he saw Samson Sayam talking to the accused.[17] It is readily apparent that Carlito Manlangits testimony failed to prove the stated purpose thereof, i.e., that Samson Sayam was taken forcibly to the detachment headquarters. To be

sure, the witness did not state that Samson Sayam was pulled, dragged, or coerced to go with accused-appellants. Neither did he say that Samson Sayam was taken at gunpoint. There is also no relevant testimony to the effect that Samson Sayam tried his best to free himself from the clutches of accused-appellants. For if that were the truth, the reactions of Carlito Manlangit do not conform to human experience. If he really witnessed Samson Sayam being apprehended, forcibly taken, and trying to free himself, it cannot be logically explained why Carlito Manlangit just went home,[18] instead of doing anything to help Samson Sayam. He admitted that he did not immediately report the incident to the authorities.[19] More telling is the absence of testimony to the effect that Samson Sayam was being taken to the detachment headquarters against his will, that he was protesting his apprehension, or that he was asking for help, considering that there were other people within hearing and seeing distance. Most damaging is Carlito Manlangits statement that he did not see Samson Sayam in the detachment headquarters with any or all of the accused.[20] In fine, Carlito Manlangits testimony failed to prove that Samson Sayam was arbitrarily detained or deprived of his liberty. Jerry Manlangit, son of Carlito, also testified for the proseuction. According to him, he and Samson Sayam went to Barangay Tabu to have a sack of palay milled on September 29, 1992. At around six in the evening, while on their way home, they passed by the store of Terry Cabrillos to buy kerosene. There, he saw the four accused drinking beer. Samson Sayam told him to go home because he had to show his residence certificate and barangay clearance to accused-appellant Aaron Flores. Jerry Manlangit then proceeded to his residence in Hacienda Shangrila, located about half a kilometer away from the center of Barangay Tabu. Later, he told his father that Samson Sayam stayed behind and asked him to fetch Samson. He also testified that he heard gunshots coming from the direction of the detachment headquarters.[21] The testimony of Jerry Manlangit does not prove any of the elements of the crime of arbitrary detention. Neither does it support nor corroborate the testimony of his father, Carlito, for they dealt on a different set of facts. Jerry Manlangit did not see any of accused-appellant apprehend or detain Samson Sayam. He did not even see if accused-appellant Flores really inspected the residence certificate and barangay clearance of Samson Sayam. The rest of his testimony comprised of hearsay evidence,[22] which has no probative value.[23] In summary, Jerry Manlangits testimony failed to establish that accused-appellants were guilty of arbitrary detention. The prosecution also presented the testimony of Nelson Golez, who identified the four accused as the persons with Samson Sayam, drinking inside the store of Terry Cabrillos. He also stated that following a heated argument, the accused and Samson Sayam left the store and went towards the direction of the detachment headquarters. He said that the accused were holding and pulling Samson Sayam towards the road. Ten minutes later, Nelson Golez heard a single gunshot followed by rapid firing.[24] On cross-examination, however, Nelson Golez did not affirm his earlier statement that the accused and Samson Sayam were engaged in a heated argument. Rather, he said he did not hear them arguing as they were leaving the store. Although Nelson Golez attested that Samson Sayam was protesting while the accused were dragging him, he did not do anything to help Samson Sayam, who happened to be his cousin.[25] Again, no conclusion of guilt can be inferred from Nelson Golezs testimony. First of all, he was unsure of his assertion that there was an argument. The mere fact that Samson Sayam was being dragged towards the road does not constitute arbitrary detention. There is no showing that Samson Sayam was completely deprived of his liberty such that he could not free himself

from the grip of the accused, if he was indeed being held against his will. The incident transpired in a public place, where there were people milling about, many of whom were his friends. It is puzzling that Samson Sayam did not cry out for help. Nobody bothered to report the incident, if indeed it happened, to the barangay authorities. No one else came forward to corroborate the testimony of Nelson Golez. The testimony of Nelson Golez, by itself, lacks credibility. He wavered on material points, even as the prosecution failed to substantiate by direct or corroborative evidence the bare testimony of Nelson Golez. It is basic and elemental that in criminal prosecutions, before the accused may be convicted of a crime, his guilt must be proven beyond reasonable doubt. Although the findings of fact made by trial courts are generally not disturbed on appeal, if there are substantial facts which were overlooked but which may alter the results of the case in favor of the accused, such facts should be taken into account by the appellate court.[26] And where it appears that the trial court erred in the appreciation of the evidence on record or the lack of it, the factual findings of the trial court may be reversed.[27] After thoroughly reviewing the records of this case and weighing the testimonial evidence on the scale of creditworthiness and materiality, this Court finds the evidence of the prosecution grossly insufficient to sustain a conviction. Again, the fact of detention, whether illegal or arbitrary, was not clearly established by credible evidence. There was no showing that Samson Sayam was locked up, restrained of his freedom, or prevented from communicating with anyone. Likewise, there was no proof that there was actual intent on the part of accusedappellants to arbitrarily deprive Samson Sayam of his liberty. It is necessary that there must be a purposeful or knowing action by accused-appellants to restrain the victim by or with force, because taking coupled with intent completes the crime of illegal or arbitrary detention.[28] The prosecution, however, maintains that the evidence, even though circumstantial, sufficiently establishes the guilt of the accused-appellants. It cites the following circumstances: 1. On September 29, 1992, at about 6:00 oclock in the evening, accused-appellants, together with their companions Sergeant Tampioc and fellow CAFGU Sulpecio Silpao, were seen with Samson at the store of Terry Cabrillos. Accused-appellants were having a drinking spree. Later, they were seen engaged in a heated argument. 2. Thereafter, Samson was forcibly brought out of the store by accused-appellants by holding and pulling him towards the road. From another angle, another prosecution witness saw accused-appellants on the road arresting Samson. 3. Accused-appellants brought Samson towards the direction of the detachment of Brgy. Tabu. 4. Ten (10) minutes later, a gunshot was heard coming from the direction of the detachment followed by rapid firing. 5. After the incident, Samson was never seen again or heard from.[29] As already discussed, the above-enumerated circumstances were not established by clear and convincing evidence. And even if these acts were proven to be true, the combination of all these circumstances would still not be able to produce a conviction beyond reasonable doubt. To our mind, the totality of these circumstantial evidence do not constitute an unbroken chain

pointing to the fair and reasonable conclusion that the accused-appellants are guilty of the crime charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with the hypothesis that the accused-appellants are guilty, and inconsistent with the possibility that they are innocent.[30] Thus: Section 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[31] The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused.[32] It is admitted that Samson Sayam was seen drinking with accused-appellants on that fateful night. However, the circumstances that there was a heated argument among them, and that the accused-appellants held and pulled Samson Sayam to the road and brought him towards the direction of the detachment headquarters was not sufficiently proven by material or relevant testimony. Moreover, the circumstance that gunshots were heard on that night have no relevancy to the case. Even if it were, it cannot be concluded that the gunshots came from the direction of the detachment headquarters. The witnesses who testified that they heard the gunshots were at least half a kilometer away from the center of the barangay, while the detachment headquarters itself was also some distance from the barangay. At night, especially in the rural areas when all is quiet, loud sounds such as gunshots reverberate and would seem to come from every direction. An ordinary person a kilometer away cannot, with certainty, point to the exact location where the gunshots would be coming from. That would otherwise be attributing expertise on such matters to the prosecution witnesses. That Samson Sayam was never seen or heard from again cannot be the basis for the trial court to render judgment convicting the accused-appellants. In fact, it has no bearing in this case because it is not one of the elements of the crime of arbitrary detention. Consequently, only one relevant circumstance was proved, i.e., that accused-appellants were the last persons seen with Samson Sayam. However, said circumstance does not necessarily prove that they feloniously abducted him, then arbitrarily detained him.[33] Moreover, mere suspicion that the disappearance of Samson Sayam was a result of accusedappellants alleged criminal acts and intentions is insufficient to convict them. Proof beyond reasonable doubt is the required quantum of evidence.[34] An uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt.[35] The prosecution was not able to prove a possible motive why accused-appellants would arbitrarily detain Samson Sayam. In sum, there is no unbroken chain of circumstances leading to the conclusion that accused-appellants are guilty. Since the pieces of circumstantial evidence do not fulfill the test of moral certainty that is sufficient to support a judgment or conviction, the Court must acquit the accused.[36]

In the recent case of People v. Comesario,[37]3 we had occasion to rule that: Accused-appellants conviction by the trial court hinged on circumstantial evidence. To validly invoke circumstantial evidence, it must be shown that there is more than one circumstance and the facts from which the inferences are derived are proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstances must constitute an unbroken chain of events that can lead reasonably to the conclusion pointing to the accused to the exclusion of all others as the author of the crime. Logically, it is where the evidence is purely circumstantial that there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused. Like a tapestry made of strands which create a pattern when interwoven, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. Accused-appellants enjoy the presumption of innocence until the contrary is proved. In the case at bar, the pieces of testimonial evidence relied on by the prosecution and the trial court to support a conviction have failed to overcome the constitutional precept of the presumed innocence of accused-appellants. Among other grounds, not only is there a lot of room for reasonable doubt in regard to their guilt, there is a virtual dearth of convincing evidence to prove that a crime had been committed. There is no need even to assess the evidence of the defense, for the prosecution bears the onus to distinctly and indubitably prove that a crime had been committed by accusedappellants.[38] It is incumbent upon the prosecution to establish its case with that degree of proof which leads to no other conclusion but conviction in an unprejudiced mind. The evidence for the prosecution must stand or fall on its own merits for it cannot be allowed to draw strength from the weakness of the evidence for the defense.[39] Clearly, the prosecution in this case has failed to prove the guilt of accused-appellants beyond reasonable doubt. In similar cases, this Court has often and consistently ruled that it is better to acquit a guilty person than to convict an innocent one.[40] WHEREFORE, the assailed decision is REVERSED and SET ASIDE. Accused-appellants are ACQUITTED. Unless being held or detained for some lawful reason, accused-appellants are ORDERED RELEASED immediately. The Director of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the date and time when accused-appellants are released pursuant to this Decision.

TOLENTINO VS. CAMANO

SECOND DIVISION [A.M. No. RTJ-00-1522. January 20, 2000] ROMULO SJ TOLENTINO, State Prosecutor, complainant, vs. JUDGE POLICARPIO S. CAMANO, JR., Regional Trial Court, Branch 58, Tigaon, Camarines Sur, respondent. Misj uris DECISION MENDOZA, J.: This is a complaint filed by State Prosecutor and Acting Provincial Prosecutor of Camarines Sur Romulo SJ Tolentino against Judge Policarpio S. Camano, Jr. of the Regional Trial Court, Branch 58, Tigaon, Camarines Sur, for gross ignorance of the law, grave abuse of discretion, grave abuse of authority, violation of Canons 1, 2 and 3 of the Canons of Judicial Ethics, and incompetence in connection with the granting of bail to the accused in Criminal Case No. T1468. The facts are as follows: The Office of the Provincial Prosecutor of Camarines Sur filed an information against Roderick Odiaman for allegedly engaging in sexual intercourse with a child in violation of 5(b) of the Child Abuse Act (R.A. No. 7610). The case was filed in the RTC at Tigaon, Camarines Sur and was later assigned to respondent judge of that court. The defense moved to quash the information on the ground that no preliminary investigation had been conducted before the case was filed, whereupon respondent judge on November 15, 1995 ordered complainant state prosecutor to conduct a preliminary investigation. Pending the holding of a preliminary investigation, the accused filed a petition for bail which respondent judge scheduled for hearing on January 9, 1996. However, both complainant state prosecutor and private complainant in the criminal case failed to appear before the court despite due notice. The hearing was reset to January 16, 1996, but, on the said date, complainant state prosecutor again failed to appear despite due notice to him. Just the same, the hearing was postponed to January 24, 1996. The notice of hearing was personally served on complainant state prosecutor, but on the scheduled date, he again failed to appear. Instead, the assistant provincial prosecutor entered a special appearance in the case and moved for another postponement of the hearing. Respondent judge denied the motion, and, on January 30, 1996, granted the petition for bail which he fixed at P50,000.00. Respondent judge stated in pertinent parts in his order: In resolving the Motion to Quash, the court in its Order dated November 13, 1995 denied said Motion finding merit however, on the question of lack of preliminary investigation and as a consequence remanded the case to the prosecutor for preliminary investigation. Jj lex Pending preliminary investigation, the accused filed the instant Petition for Bail which were set for hearings on January 9, 16, and 24, 1996, during which settings the prosecution failed to appear and to adduce evidence to oppose the Petition.

From the foregoing antecedent facts, it can be discerned that the accused is not yet charged in court for violation of Art. III, Section 5(b) of R.A. 7610, his case being under preliminary investigation, [but he] is behind bars. The issue to be resolved by the court is whether or not a Petition for Bail can be entertained by this court at this stage of the proceedings and under the attendant circumstances. The court applying Sec. 17(c) of Rule 114 as Amended by Administrative Circular No. 12-94 and adhering to applicable doctrine, resolves the issue in the affirmative. Sec. 17(c) Rule 114 provides, thus: "Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held." EXPLANATIONS: (Taken from the Book, entitled "Remedial Law" by O. Herrera, vol. 4, 1994 ed.) In the case of Go vs. Court of Appeals, G.R. No. 101837, Feb. 11, 1992, the court ruled, thus: "Where the accused was charged for murder without the benefit of a preliminary investigation and trial had already began over his objections, the accused remains entitled to be released on bail as a matter of right pending the preliminary investigation." "The filing of the Petition for Bail does not constitute a waiver of accused[s] right to preliminary investigation." WHEREFORE, premises considered, the Petition for Bail is hereby granted and the bail for the provisional liberty of the accused is hereby fixed at P50,000.00. SO ORDERED. However, on motion of complainant state prosecutor, respondent judge set aside his order and set the petition for bail on March 4, 1996, "if only to afford the prosecution another chance to present evidence to show that the evidence of guilt is strong." Complainant state prosecutor again failed to appear although he filed a manifestation questioning the hearing set on the ground that it was premature to consider the question of bail as there was a pending "reinvestigation" of the case before the provincial prosecutors office. On May 9, 1996, respondent judge issued an order granting bail to the accused in the increased amount of P100,000.00. His order stated: Any person in custody who is not yet charge[d] in court may apply for bail with any [court] in the province, city, or municipality where [he] is held. (Remedial Law by O. Herrera, Vol. 4, 1994 edition). In the case at bench, it can be said that the accused is not yet charge[d] in court for Violation of Art. 3, Sec. 5(B) of Republic Act 7610, this case being under preliminary investigation and/or reinvestigation.

The court takes into consideration the health of the accused who is sick with diabetes and lung ailment needing medical attention. Since the case is still under preliminary investigation and/or reinvestigation, it is needless for the court to make a conclusion of facts or assessment of the prosecutions evidence whether it is strong or not in order not to preempt the outcome of the reinvestigation. Although from a perusal of the Complaint and affidavit executed by Cecille Buenafe and the witnesses, the court could not find any allegations that said Cecille Buenafe is a minor who for money, profit, or any other consideration or due to the coercion of any adult, syndicate or group indulge[s] in sexual intercourse for a fee to be deemed a child exploited in prostitution. WHEREFORE, premises considered, the Petition for Bail is GRANTED for the temporary liberty of the accused and the same is hereby fixed at P100,000.00. SO ORDERED. Complainant state prosecutor filed a motion for reconsideration and a notice of appeal, both of which were denied by respondent judge. In his order, dated May 30, 1996, respondent judge ruled: Acct mis Invoking denial of due process as a ground, the prosecution moves for the reconsideration of the May 9, 1996 Order of this court granting bail to the accused. The inaccuracy of the allegations so advanced in support of the Motion is readily emphasized by no less than the sequence of the dates of hearing with explicit order to adduce evidence to oppose the Petition for Bail as recited in detail in the questioned Order, thus, evincing the evident effort of the court towards observance of due process for both the defense and the prosecution. It is basic in law that actual hearing is not an indispensable requisite of due process, but mere opportunity to be heard would suffice. Thus: "There is no denial of due process where a party is given an opportunity to be heard and to present his case. (Development Bank of the Philippines vs. National Labor Relations Commission, 218 SCRA 183)." "It is not the denial of the right to be heard but the deprivation of the opportunity to be heard which constitutes a violation of the due process clause. (Imperial Textile Mills Inc. vs. National Labor Relations Commission, 217 SCRA 237)." Corollarily, the prosecution cannot feign ignorance of the physical condition of the accused considering his medical records, all certified copies, furnished to this court by Mr. Norberto P. Villamor, Administrative Officer IV of the Bicol Medical Center, Naga City at the instance of Atty. Romulo SJ. Tolentino, Prosecutor on Case which medical records now form part of the record of this case. It cannot be gainsaid that the production of his medical records was the necessary consequence of Atty. Tolentinos previous insistence for the hospital to produce the same. The X-ray result confirms that the accused is suffering from tuberculosis, right upper lobe. Briefly stated, the records of the case strongly rebuff the contention of the prosecution in the Motion for Reconsideration. Interlocutory orders are not appeallable in this jurisdiction. The Order granting bail subject of the instant Motion falls within the ambit of Interlocutory Order.

WHEREFORE, the Motion for Reconsideration is hereby DENIED and the Notice of Appeal incorporated therein is likewise DENIED, both for LACK of MERIT. SO ORDERED. On May 31, 1996, respondent judge approved the property bond filed by the accused and ordered his immediate release. Hence, the instant complaint. Complainant claims that the prosecution was not given an opportunity to adduce evidence to show that the guilt of the accused was strong, and that the bail, which was fixed at P100,000.00, was 50% less than the recommended amount in the Bail Bond Guide of 1996. Complainant also claims that respondent judge acted on the petition for bail notwithstanding a pending "reinvestigation" of the case. In its resolution of November 18, 1996, the Court required respondent judge to comment on the complaint. In addition, it ordered that a copy of the complaint furnished the Department of Justice for possible disciplinary action against complainant state prosecutor for deliberately delaying the administration of justice. In his comment, dated January 24, 1997, respondent judge alleges: 3. This incident could have not reached this far, if State Prosecutor Romulo SJ. Tolentino cooperated and obeyed the series of Orders issued by this court requiring him to appear and adduce evidence of strong guilt, during the bail hearing. The petition for bail was filed on December 26, 1995. Said petition was set for hearing by the court on January 9, 1996 where the prosecution and the offended party, Cecile Buenafe, were personally served with subpoenas. The prosecutor and the offended party failed to appear in this scheduled bail hearing. The court in its Order on January 9, 1996, reset the bail hearing to January 16, 1996 and ordered the prosecution to adduce evidence of strong guilt. The bail hearing was again reset to January 24, 1996, and State Prosecutor Romulo SJ. Tolentino was again ordered to adduce evidence of strong guilt, a copy of the Order was personally served upon him. On [the] January 24, 1996 bail hearing, State Prosecutor Romulo SJ. Tolentino again failed to appear and adduce evidence of strong guilt and instead requested Assistant Provincial Prosecutor Victor de la Cruz to appear in his behalf and to ask for a postponement of the bail hearing. The bail hearing was again reset to March 4, 1996, by the court and subpoenas were served [on] the State Prosecutor Romulo SJ. Tolentino and the offended party Cecile Buenafe and their witnesses. [At the] March 4, 1996 bail hearing, the prosecution again failed to appear and adduce evidence of strong guilt. From the foregoing chronology of events of the bail hearing, it is crystal clear that the prosecution was afforded reasonable notice and all the opportunities to adduce evidence of strong guilt in adherence to requirements of procedural due process. S djad .... 5. The Order of this court granting and fixing the bail for the accused in the amount of P50,000.00 contained in its Order [of] January 30, 1996 was reconsidered thru his application and at the same time the court set the bail application for hearing and ordering State Prosecutor Romulo SJ. Tolentino to appear and adduce evidence which he likewise failed to comply. After all these series of failures to appear and adduce evidence, the court granted the petition for bail

fixing the same in the amount of P100,000.00. State Prosecutor Tolentino contends that the P100,000.00 bail is only 50% of the recommendable amount. Your Respondent, in fixing the amount of P100,000.00 relied on Administrative Circular No. 12-94, Sec. 9 as basis, and because of the consistent failure to appear and adduce evidence of the prosecutor and make known his recommendation as to the fixing of the bail. For his repeated failure to appear and adduce evidence despite the repeated orders of this court, the Respondent should not be faulted nor punished administratively. 6. A petition for bail can be entertained by the court while the preliminary investigation or reinvestigation is going [on] for as long as the accused is under detention. In fact, it is advantageous for the prosecution because with one stone it is shooting two birds. It will abbreviate the proceedings in the trial on the merits that would eventually result [in] the early disposition of the case. 7. Your Respondent is still human, although a judge. It being so, he is not exempted from the danger of falling into the path holes [sic] of legal error or errors just like his peers. That is why in several decisions of the Supreme Court, it was ruled, thus: "In the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action, even though such acts are erroneous." (Alvarado vs. Laquindanum, 245 SCRA 501) "A judge may not be administratively charged for mere errors of judgment in the absence of a showing of any bad faith, malice or corrupt purpose on his part." (Heirs of the Late Nasser D. Yasin vs. Felix, 250 SCRA 545) Sppedsc "If respondent judge committed any error at all it was a legal error rectifiable by appeal not by administrative sanction." (State Prosecutor vs. Muro, 251 SCRA 111) "A judge cannot be held administratively liable for an erroneous ruling on first impression, and malice cannot be inferred from his having rendered a decision rectifying an earlier impression without proof beyond doubt of a conscious and deliberate intent on his part to commit an injustice by such acts." (Castaos vs. Escao, Jr., 251 SCRA 174) "As a matter of public policy, in the absence of fraud, dishonesty, or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action even though such acts are erroneous." (Chin vs. Gustillo, 247 SCRA 175). 8. Your Respondent acted in this case honestly and in good faith, and his actuations not tainted with graft and corruption. Subsequently, respondent judge filed an application for optional retirement, which the Court approved on November 17, 1998. The amount of P50,000.00 was withheld from his retirement benefits pending resolution of the complaint in this case and another complaint against him in OCA-I.P.I.-96-250-RTJ. The Office of the Court Administrator, to which the complaint in this case was referred, finds respondent judge guilty of gross ignorance of law and grave abuse of authority in granting bail without hearing, and recommends that he be fined and sternly warned. Its report states in pertinent parts:

In the first place, respondent Judge should not have acted on the petition for bail as there is still a pending reinvestigation of the cases at the Regional State Prosecutors Office. Secondly, in granting bail to the accused respondent violated the fundamental law of procedural due process. In doing so he acted with grave abuse of authority and in wanton disregard of established rules and jurisprudence. In Petition for admission to bail the Judge is under legal obligation to receive evidence from the prosecution with the view of determining whether the evidence of guilt is so strong as to warrant the denial of bail. For this purpose therefore a hearing must be conducted to give opportunity for the prosecution to present evidence that the guilt of the accused is so strong before resolution of the motion (Sec. 5, Rule 114, Revised Rules on Criminal Procedure). .... While it may be argued that the granting of bail is an exercise of judicial discretion, the Court has delineated a clear guideline on the exercise thereof to thwart any abuse, in the case of Borinaga vs. Tamin, thus: "x x x (w)hile the determination of whether or not evidence of guilt is strong is a matter of judicial discretion, this discretion by the nature of things may rightly be exercised only after the evidence is submitted to the court at such hearing. Whether the motion for bail of an accused who is in custody [for a capital offense be resolved] in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court may resolve the motion for bail. If the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground x x x x (E)ven where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the states evidence or judge the adequacy of the amount of bail x x x x." (Cited in Mamolo, Sr. vs. Narisma, 252 SCRA 613). Respondent Judge tried to absolve himself with the established dictum that a judge cannot be held administratively liable for every erroneous ruling or decision he renders and that no one is infallible in his judgment. Respondent Judge must not hide behind that fundamental rule for what he has violated is the basic principle of procedural due process. While the Court does not require perfection and infallibility, it reasonably expects a faithful and intelligent discharge of duty by those who are selected to fill the position of administrators of justice (Lardizabal v. Reyes, A.M. No. MTJ-94897, 5 December 1994, 238 SCRA 640). While judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet it is highly imperative that they should be conversant with basic legal principles (Libarios vs. Dabalos, 199 SCRA 48). A judge is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. He is required to continuously study the law and jurisprudence. For it is in the Judges industry in keeping abreast with the recent law and court rulings that the faith of the people in the administration of justice will be restored since the litigants will be confidently and invariably assured that the occupants of the bench are in full grasp of legal principles. As to the amount of bail which is allegedly 50% less of the recommendable amount, it is noted that the information filed is for violation of Section 5 of R.A. 7610. Under Justice Department Circular No. 4, RE: The 1996 Bailbond Guide, which became effective [on] 1 February 1996 and the law enforceable at the time the Petition for Bail was filed by the defense, the penalty for

violation of Section 5 of R.A. 7610 (Law on Child Abuse), is reclusion temporal medium to reclusion perpetua and the amount of bail to be posted by the accused is P40,000.00. Hence, the amount of P100,000.00 fixed by the respondent Judge is even excessive. .... WHEREFORE, for his failure to afford procedural due process to the prosecution in the grant of bail to the accused in Criminal Case No. T-1462, [it is hereby recommended that] respondent Judge Policarpio S. Camano, Jr. [be] found guilty of gross ignorance of the law and grave abuse of authority, and be FINED P20,000.00 payable within thirty days from notice with a STERN WARNING that a commission of the same act or offense will be dealt with more severely. We find the complaint in this case to be without any basis. First. Art. III, 13 of the Constitution provides that, before conviction, all persons shall be allowed bail, except those charged with offenses punishable by reclusion perpetua (or higher) when the evidence of guilt is strong. On the other hand, Rule 114, 4 of the Revised Rule on Criminal Procedure, provides that "all persons in custody shall, before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right." Thus, when the charge against an accused is for an offense punishable by death, reclusion perpetua, or life imprisonment, there must be a hearing with the participation of the prosecution and the defense, in order to determine whether the evidence of guilt against the accused is strong, and ultimately to determine whether he should be granted bail. The burden of proof is on the prosecution to show that the evidence meets the required quantum. For this purpose, the prosecution must be given an opportunity to present within a reasonable time all evidence that it may want to adduce before the court. The State has a right to due process as much as the accused. And even if the prosecutor refuses to adduce evidence in opposition to the motion for bail, the court must nevertheless endeavor to ascertain the strength of the States evidence in order to determine whether bail should be granted.[1] In this case, however, it was not necessary to hold a hearing so that the prosecution could show that evidence of the guilt of the accused was strong, because a preliminary investigation had been ordered by the court. At that point, bail was still a matter of right. Thus, in Go v. Court of Appeals,[2] it was held that an accused, who was charged in court with murder without the benefit of a preliminary investigation, was entitled to be released on bail as a matter of right pending the preliminary investigation, reserving to the prosecutor, after the preliminary investigation, the right to ask the trial court for the cancellation of the bail should he believe the evidence of guilt of the accused to be strong. It would then be up to the trial court to grant or deny the motion for cancellation of bail after considering the evidence on record. Indeed, if the propriety of charging the accused was yet to be resolved in the preliminary investigation, it cannot be claimed that the evidence of guilt of the accused was strong so as to justify the denial of bail to him. Be that as it may, respondent judge set the hearing on the bail petition at least four times: on January 9, 1996, January 16, 1996, January 24, 1996, and March 4, 1996, in order to allow complainant prosecutor present his evidence, because the accused was charged with having "sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse." Under 5(b) of R.A. No. 7610, the penalty for such an offense is reclusion temporal in its medium period to reclusion perpetua. But complainant failed to present his evidence. It thus appears that it was the complainant prosecutor who was remiss in the

performance of his duties. Respondent judge should not have granted bail based simply on the failure of the prosecution to prove that the evidence of guilt of the accused was strong but should have endeavored to determine the existence of such evidence. Considering, however, the fact that the case was referred to the Office of the Provincial Prosecutor for preliminary investigation, the accused could be considered entitled to bail as a matter of right. Second. As to the allegation that the amount of bail required by respondent judge is 50% less than the amount recommended in the 1996 Bailbond Guide of the Department of Justice, the Office of the Court Administrator correctly finds that the amount of the bail under the Bailbond Guide is P40,000.00 only, so that, in requiring the accused to post bail in the amount of P100,000.00, respondent judge exceeded the limits. It appears, however, that respondent judge was led to his error by the prosecutor who moved for a reconsideration of respondent judges order originally fixing the amount of bail at P50,000.00. At all events, the remedy was for either the accused or the prosecution to ask for a reduction of the amount of bail. Not all errors of a judge can be the subject of disciplinary action, but only those tainted by fraud, dishonesty, corruption or malice, of which none has been shown in this case. WHEREFORE, finding no merit in the instant complaint, the same is hereby DISMISSED. Sce dp SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

PEOPLE VS. TAN THIRD DIVISION [G.R. No. 117321. February 11, 1998] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON TAN y VERZO, accused-appellant. DECISION ROMERO, J.: May the confession of an accused, given before a police investigator upon invitation and without the benefit of counsel, be admissible in evidence against him? Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of highway robbery with murder before the Regional Trial Court, Branch 62, of Gumaca, Quezon Province, under an information[1] dated February 8, 1989, which reads as follows: That on or about the 5th day of December 1988, along the Maharlika Highway at Barangay Tinandog, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping each other, armed with bladed and pointed weapons, with intent to gain, by means of force, violence, threats and intimidation, did then and there wilfully, unlawfully and feloniously take, steal and carry away from one Freddie Saavedra, a Honda TMX motorcycle with a sidecar bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS (P30,000.00) Philippine currency, belonging to the said Freddie Saavedra, to the damage and prejudice of the latter in the aforesaid amount; and that on the occasion of said robbery and by reason thereof, the said accused, with intent to kill, with evident premeditation and treachery, and taking advantage of their superior strength and in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said weapon said Freddie Saavedra, thereby inflicting upon the latter multiple stab wounds on the different parts of his body, which directly caused his death. Contrary to law. On arraignment, the accused pleaded not guilty to the charge. The relevant facts established by the prosecution are as follows: On December 5, 1988, at about 7:00 oclock p.m., tricycle driver Freddie Saavedra went to see his wife, Delfa, at Our Lady of Angels Academy in Atimonan, Quezon, where the latter is a third year high school student, to inform her that he will drive both accused to Barangay Maligaya. It was the last time, however, that Freddie was seen alive. When the latter failed to return that evening, Delfa, as early as 4:30 oclock a.m. of December 6, 1988 inquired on his whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel Villarama revealed that the lifeless body of her husband was discovered on the diversion road at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place and found him sprawled on the ground with fourteen stab wounds in different parts of his body. Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt. Carlos Santos proceeded to the scene of the crime and recovered a blue sidecar which they brought back with them to

their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat. Rolando Alandy invited appellant in connection with the instant case and with respect to two other robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an explicit account of what actually transpired in the case at bar. He narrated that he and co-accused Amido were responsible for the loss of the motorcycle and the consequent death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a guide, the Lucena PNP immediately dispatched a team to retrieve the same. After admitting that it was purchased from both the accused and upon failure to present any document evidencing the purported sale, Teves voluntarily surrendered it to the police who turned it over, together with the sidecar, to the Atimonan Police Station for safekeeping. Lt. Carlos, on cross-examination, testified that when he invited appellant to their headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter that he was a suspect, not only in the instant case, but also in two other robbery cases allegedly committed in Lucena City. In the belief that they were merely conversing inside the police station, he admitted that he did not inform appellant of his constitutional rights to remain silent and to the assistance of counsel; nor did he reduce the supposed confession to writing.[2] Appellant, on the other hand, alleged that he had no participation in the offense charged and contended that his only involvement in the matter was the referral of accused Amido to Teves. He recounted that sometime in December 1988, Amido sought him at his house and told him that the motorcycle he was riding on was being offered for sale. Upon proof shown that it was indeed registered under Amidos name, he accompanied the latter to Manila on board the said motorcycle and they approached Antonio Carandang. The latter, thereafter, brought them to a certain Perlita Aguilar and Danilo Teves with whom the sale was finally consummated. He allegedly received P150.00 as his commission. Amido presented alibi as his defense. He alleged that although a tricycle driver by occupation, he was at Barangay Malusak, Atimonan on the day in question, some seven kilometers from the town, busy assisting in the renovation of his mothers house. He narrated that the victim was his friend and, therefore, he could not have participated in the gruesome death of the latter. In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion of which reads: WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan GUILTY beyond reasonable doubt of the crime of Highway Robbery with Murder and hereby sentences him to suffer an imprisonment of RECLUSION PERPETUA. He is further ordered to indemnify the family of the deceased in the amount of Thirty Thousand Pesos (P30,000.00). Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges against him and the Provincial Warden of Quezon, Provincial Jail, Lucena City, is hereby ordered to release from custody the person of said Lito Amido, unless he is being detained thereat for some other lawful cause. SO ORDERED.[3]

Appellant assails the finding of conviction despite failure of the prosecution to positively identify him as the culprit of the crime and to present clear and convincing circumstantial evidence that would overcome his innocence. In light of the above facts and circumstances, the appealed decision is set aside and appellant acquitted on the ground that his constitutional rights were violated. It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. Article III, Section 12, paragraphs (1) and (3) of the Constitution provides: x x x xxx xxx

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx

(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him. Republic Act No. 7438 (R.A. No. 7438),[4] approved on May 15, 1992, reenforced the constitutional mandate protecting the rights of persons under custodial investigation, a pertinent provision[5] of which reads: As used in this Act, custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the inviting officer for any violation of law. Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that tends itself to eliciting incriminating statements that the rule begins to operate.[6] Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to explain those rights to the accused but also that there must correspondingly be a meaningful communication to and understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused would thus not suffice.[7] Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.[8]

While the Constitution sanctions the waiver of the right to counsel, it must, however, be voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel.[9] To reiterate, in People v. Javar,[10] it was ruled therein that any statement obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. The records of this case do not indicate that appellant was assisted by counsel when he made such waiver, a finding evident from the testimony of Lt. Santos on cross-examination, thus: Q Now, when you brought Herson Tan to the Headquarters, did you tell him that he is one of the suspects in the robbery slain (sic) that took place in Atimonan on December 5, 1988? A Yes, sir, and he was also suspect to the robbery case which was investigated at Lucena Police Station. There were two (2) cases which were investigated on Herson Tan. Q Now, so in addition to the Atimonan case, you also took Herson Tan to your custody in connection with another case that happened in Lucena? A Yes, sir.

Q And you happened to have Herson Tan in your list as suspect in both cases because Herson was previously incarcerated at Lucena City Jail in connection with a certain case, is it not? A Yes, sir.

Q Just for curiosity sake, you invited him in your headquarters, is that what happened in this case? A Yes, sir.

Q And it just happened that without applying third degree to him he gave you that information? A Yes, sir.

Q Did you notify him of his constitutional right to counsel before you propounded questions to him? A No, sir, because we are asking question only to him.

Q Before propounding question or information you sought to elicit from him, did you inform him of his constitutional right not to testify against himself because he is a suspect in these two (2) cases? A No, sir, because we were just conversing.[11] (Underscoring supplied)

The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to

convict him, however, of said crime. The constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the moment he is investigated in connection with an offense he is suspected to have committed, even if the same be initiated by mere invitation. This Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of government.[12] What remains of the evidence for the prosecution is inadequate to warrant a conviction. Considering the circumstances attendant in the conduct of appellants investigation which fell short of compliance with constitutional safeguards, we are constrained to acquit the appellant. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca, Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is hereby ACQUITTED of the crime charged and his immediate release from confinement is hereby ordered, unless there is any other lawful cause for continued detention. Costs de oficio. SO ORDERED. Narvasa, (Chairman), CJ., Kapunan, Francisco, and Purisima, JJ., concur.

PEOPLE VS. UY

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 157399 Present:

Davide, Jr., C.J. (Chairman), - versus Carpio, and Azcuna, JJ. JOSE TING LAN UY, JR. (Acquitted), ERNESTO GAMUS y SOTELO, JAIME OCHOA, all of the National Power Corporation, and RAUL GUTIERREZ alias Raul Nicolas, Alias George Aonuevo, alias Mara Aonuevo (At large), Accused. Promulgated: JAIME OCHOA,

Quisumbing, Ynares-Santiago,

Appellant. November 17, 2005 x ---------------------------------------------------------------------------------------- x DECISION YNARES-SANTIAGO, J.: For allegedly diverting and collecting funds of the National Power Corporation (NPC) intended for the purchase of US Dollars from the United Coconut Planters Bank (UCPB), Jose Ting Lan Uy, Jr., Ernesto Gamus,[1] Jaime Ochoa and Raul Gutierrez were indicted before the Sandiganbayan for the complex crime of Malversation through Falsification of Commercial Documents defined and penalized under Articles 217 and 171 (8), in relation to Article 48 of the Revised Penal Code, in an amended Information,[2] docketed as Criminal Case No. 19558, which alleges That sometime in July 1990, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Jose Ting Lan Uy, Jr., a public accountable officer, being the Treasurer of National Power Corporation (NAPOCOR), Ernesto Gamus and Jaime Ochoa, both public officers being the Manager of the Loan Management and Foreign Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also of NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo, a private individual being a foreign exchange trader, said public officers taking advantage of their official positions, with grave abuse of authority and committing the offense in relation to their office, conspiring, confederating and mutually helping one another, with their private co-accused, did then and there willfully, unlawfully and feloniously falsify or cause to be falsified the NPCs application for managers checks with the Philippine

National Bank (PNB), NPC Branch in the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine Currency, intended for the purchase of US dollars from the United Coconut Planters Bank (UCPB), by inserting the account number of Raul Gutierrez SA-111-121204-4, when in truth and in fact as the accused well knew that the Payment Instructions (PI) when signed by the NAPOCOR authorities did not indicate the account number of Raul Gutierrez, thereby making alteration or intercalation in a genuine document which changes its meaning, and with the use of the said falsified commercial documents, accused succeeded in diverting, collecting and receiving the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.75), Philippine Currency from the National Power Corporation, which they thereafter malverse, embezzle, misappropriate and convert to their own personal use and benefit to the damage and prejudice of the National Power Corporation in the aforementioned sum. CONTRARY TO LAW. Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge, while Gutierrez has remained at large. On pre-trial, the prosecution and the defense stipulated 1. That accused Uy at the time stated in the information was a Treasurer at the NPC;

2. That accused Ernesto Gamus was at the time mentioned in the information was (sic) the Manager of Loan Management and Foreign Exchange Division (LOMAFED); 3. That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED, at the time mentioned in the information; 4. That accused Gamus does not have any custody to (sic) public funds;

5. That accused Ochoas position as Sr. Financial Analyst did not require him to take custody or control of public funds; 6. That the application forms for cashiers check or Managers check are not accountable forms of the NAPOCOR.[3] Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan rendered its Decision,[4] the dispositive portion of which reads: WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby found GUILTY beyond reasonable doubt of the crime of Malversation thru falsification of Commercial Document and is sentenced to suffer the penalty of reclusion perpetua and to pay a fine equal to the amount malversed which is ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jose Ting Lan Uy, Jr. Accused Ochoa shall also suffer the penalty of perpetual disqualification. Costs against the accused. On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is hereby ACQUITTED of Malversation of Public Funds thru Falsification of Commercial Document.

However, because of preponderance of evidence, he is CIVILLY LIABLE for the damages suffered by the NPC in the amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jaime Ochoa. The Hold Departure Order against the accused embodied in this Courts Resolution dated April 18, 2002 is recalled. Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo with last known address at 1348 A. Mabini Street, Ermita, Manila or Suite 603 VIP Building, Roxas Boulevard, Manila. SO ORDERED.[5] Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan erred in 1. 2. 3. convicting him based on the allegations in the information; admitting and considering his alleged sworn statements; considering the alleged transcripts of stenographic notes and the NBI Report.[6]

The factual antecedents of the case, as summed by the Sandiganbayan, are not disputed by the parties: In July of 1990, the National Power Corporation (NPC) became embroiled in a controversy involving the disappearance of P183,805,291.25 of its funds which were originally on deposit with the Philippine National Bank, NPC Branch (PNB) but were subsequently used to purchase two (2) managers/cashiers checks (the first check was in the amount of P70,000,000.00 while the second was for P113,805,291.25) in order to comply with its loan obligations to the Asian Development Bank (ADB). As NPCs debt in favor of ADB was in yen, NPC was obligated to follow an intricate and circuitous procedure of buying US dollars from a local bank (in this case, United Coconut Planters Bank or UCPB T.M. Kalaw Branch), which local bank was supposed to remit the US dollars to an off-shore bank. This off-shore bank (in this case, the Credit Lyonnais, New York) was then supposed to remit the yen equivalent of the US dollars to a third bank (in this case, the Bank of Japan, Tokyo Branch) which would then credit the funds to the account of the ADB. The contracts of NPC with the concerned banks (embodied in three [3] Payment Instructions) included a value date (which was July 13, 1990), the mere arrival of which would trigger the above-mentioned procedure, culminating in the payment to ADB of the NPC obligation in the foreign currency agreed upon. On value date, per routing procedure, Credit Lyonnais (the second bank) remitted Japanese Yen 1,143,316,130.00 to the Bank of Japan, Tokyo Branch. Likewise, per routing procedure, UCPB T.M. Kalaw Branch was supposed to have remitted on said value date the amount of US$7,740,799.80. UCPB T.M. Kalaw, however, despite the fact that the PNB had already issued two (2) managers/cashiers checks (Managers check for brevity) for such purpose, did not make the agreed remittance to Credit Lyonnais, so Credit Lyonnais received no payment for the funds it had remitted to the Bank of Japan, Tokyo. Both the State and the accused have offered explanations for the failure of UCPB, T.M. Kalaw Branch to remit the dollar equivalent of P183,805,291.25 to Credit Lyonnais. Both explanations, naturally, were diametrically opposed.[7]

The prosecution theorizes that the accused diverted the funds covered by the two PNB Managers checks by falsifying a commercial document called an Application for Cashiers Check (ACC) by inserting an account number (A/C #111-1212-04) of a private individual after the name of the payee, UCPB, T.M. Kalaw Branch. It claims that NPC did not authorize the insertion considering that the Payment Instruction (PI) issued by NPC instructing PNB to prepare a Managers check to be charged to NPCs savings account did not contain any account number. Through the insertion, the accused allegedly succeeded in diverting the funds from the UCPB, T.M. Kalaw Branch in favor of Raul Gutierrez @ Raul Nicolas @ George Aonuevo @ Mara Aonuevo, who is still at large. In his defense, appellant asserts that there was no evidence that he committed any of the acts alleged in the information, particularly the intercalation on the ACC; that he deposited the checks subsequently issued or that he received the proceeds thereof; or that he conspired with any of his co-accused. He claims that his conviction was based on the alleged sworn statement and the transcript of stenographic notes of a supposed interview with appellant by the NPC personnel and the report of the National Bureau of Investigation (NBI). Appellant maintains that he signed the sworn statement while confined at the Philippine Heart Center and upon assurance that it would not be used against him. He was not assisted by counsel nor was he apprised of his constitutional rights when he executed the affidavit. To be found guilty of malversation, the prosecution must prove the following essential elements: a.] b.] c.] and The offender is a public officer; He has the custody or control of funds or property by reason of the duties of his office; The funds or property involved are public funds or property for which he is accountable;

d.] He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of, such funds or property.[8] Appellant insists that he could not be convicted under the allegations in the information without violating his constitutional right to due process and to be informed of the accusation against him. He points out that the information alleges willful and intentional commission of the acts complained of while the judgment found him guilty of inexcusable negligence amounting to malice. Appellants contention lacks merit. Malversation may be committed either through a positive act of misappropriation of public funds or property or passively through negligence by allowing another to commit such misappropriation.[9] To sustain a charge of malversation, there must either be criminal intent or criminal negligence[10] and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable in Article 217 of the Revised Penal Code. More pointedly, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the law makes it punishable and prescribes a uniform penalty therefor. Even when the information charges willful malversation, conviction for malversation through

negligence may still be adjudged if the evidence ultimately proves that mode of commission of the offense.[11] Explicitly stated Even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from mode proved, the same offense of malversation is involved and conviction thereof is proper.[12] The question of whether or not an information charging the commission of the crime by means of deceit will preclude a conviction on the basis of negligence is neither novel nor of first impression. In Samson v. Court of Appeals, et al.,[13] we ruled that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. .... The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. In People v. Consigna, et al.,[14] we ruled that the afore-stated rationale also applies to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Appellant next claims that he should be acquitted since his conviction was based on his sworn statement, transcript of stenographic notes from which the sworn statement was taken and the NBI Report, which are incompetent evidence. He contends that his sworn statement was taken without the benefit of counsel, in violation of his constitutional right under Section 12, Article III of the 1987 Constitution.

Paragraph 1, Section 12, Article III of the 1987 Constitution states that Section 12. (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The investigation under the above-quoted provision refers to a custodial investigation where a suspect has already been taken into police custody[15] and the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect.[16] More specifically Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. And, the rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements.[17] Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.[18] Such a situation contemplated has been more precisely described thus where After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and cross-examined not only by one but as many investigators as may be necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study has taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence....[19] Clearly, therefore, the rights enumerated by the constitutional provision invoked by accusedappellant are not available before government investigators enter the picture.[20] Thus we held in one case[21] that admissions made during the course of an administrative investigation by Philippine Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a private individual,[22] or to a verbal admission made to a radio announcer who was not part of the investigation,[23] or even to a mayor approached as a personal confidante and not in his official capacity.[24] Along the same vein, we held that a videotaped interview showing the accused unburdening his guilt willingly, openly and publicly in the presence of newsmen is not covered by the provision although in so ruling, we warned trial courts to take extreme caution in further admitting similar confessions because we recognized the distinct possibility that the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions

and place them beyond the exclusionary rule by having an accused admit an offense on television.[25] Neither does the constitutional provision on custodial investigation extends to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime,[26] nor to a person undergoing an audit examination because an audit examiner is not a law enforcement officer.[27] Thus, the flaw in appellants argument in this regard becomes immediately apparent vis--vis the foregoing legal yardsticks, considering that his statement was taken during the administrative investigation of NPCs audit team[28] and before he was taken into custody. As such, the inquest was still a general inquiry into an unsolved offense at the time and there was, as yet, no specific suspect. Much less can appellant claim that he was in police custody because he was confined at the time at the Philippine Heart Center and he gave this statement to NPC personnel, not to police authorities.[29] Appellant can hardly claim that, under the prevailing circumstances at the time, whatever degree of compulsion may have existed went beyond the borders of the unobjectionable where impermissible levels of duress would force him into making false and incriminating declarations against his interest. While he may have been persuaded into doing so, he cannot feign that he was intimidated in such a way as to bring his statements within the ambit of the exclusionary constitutional provision. The fact that an NBI investigation was being contemporaneously conducted at the time the sworn statement was taken will not extricate appellant from his predicament. The essence of the constitutional safeguard is protection from coercion. The interview where the sworn statement is based was conducted by NPC personnel for the NPCs administrative investigation. Any investigation conducted by the NBI is a proceeding separate, distinct and independent from the NPC inquiry and should not be confused or lumped together with the latter. Appellant invokes Galman v. Pamaran[30] in insisting that the constitutional safeguard should have been applied notwithstanding that he was not yet arrested or under detention at the time. He also invites our attention to the pronouncements of Fr. Joaquin G. Bernas[31] that the right to counsel is available if a person is in custody, even if he is not a suspect; or even if not yet in custody but he is a suspect. The contention is tenuous. Although we held in Galman that the constitutional protection covers not only confessions but admissions as well, we qualified the ruling with the statement that what is being eschewed is the evil of extorting a confession from the mouth of the person being interrogated. As defined, extortion is an act or practice of taking or obtaining anything fr om a person by illegal use of fear, whether by force, threats or any undue exercise of power.[32] In the context of obtaining an admission, extorting means compelling or coercing a confession or information by any means serving to overcome his power of resistance, or making the confession or admission involuntary.[33] In this case, we find nothing on record to support appellants claim that his statements were extorted from him. Furthermore, while indeed Galman taken together with the 1986 deliberations on what was later to become Section 12 (1) of the 1987 Constitution may lead to the conclusion that the rights are available when the person is already in custody as a suspect, or if the person is a suspect even if he is not yet deprived in any significant way of his liberty, Fr. Bernas[34] qualified this statement by saying that [J]urisprudence under the 1987 Constitution, however, has

consistently held, following Escobedo, the stricter view, that the rights begin to be available only when the person is already in custody.[35] Appellant next advances the argument that even if his sworn statement were admissible in evidence, the contents thereof may not be sufficient to sustain a conviction. He contends that although his statement was supposedly gathered from the transcript of stenographic notes of the conversation between him and Atty. Bagcal, neither Atty. Bagcal nor the person who actually prepared the sworn statement was presented. Therefore, the sworn statement is hearsay. The argument is puerile. It bears stressing that the prosecution presented as witness Atty. Lamberto P. Melencio who saw appellant at the hospital to show him the prepared statement and to verify from him the truth of its contents.[36] Atty. Melencio testified that he asked appellant to go over the document before affixing his signature thereto.[37] He also inquired whether or not appellant was coerced or intimidated by anybody when the statement was taken.[38] Appellant denied that he was coerced or intimidated,[39] affirmed the contents of the document as a true reflection of his statements,[40] and signed the same.[41] It need not be overemphasized that the sworn statement is a duly notarized document which has in its favor the presumption of regularity and, thus, it can be contradicted only by clear and convincing evidence. Without that sort of evidence, the presumption of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as the statements and the authenticity of the signatures thereon, stand.[42] In disclaiming the authenticity of his sworn statement, appellant insists that at the time he signed the document, he was confined in the hospital and therefore not physically and mentally fit to assess the significance of his signature. This pretext however collides with the testimony of his own witness, Dr. Teresita Sadava, who stated that appellant was confined for three days and, who, when queried whether ischemic heart disease had any emotional or psychological effect, gave the inconclusive reply that it may or may not. Moreover, as aptly observed by the Sandiganbayan, although supposedly violated and repulsed as he was by the alleged falsity of the affidavit, it is strange that appellant, who is supposedly astute in business matters as he then occupied the position of Foreign Trader Analyst of the NPC, nevertheless felt it unnecessary to execute another affidavit retracting the same after his recovery from illness. Verily, evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.[43] Appellant finally contends that both the NBI Investigation Report and the transcript of stenographic notes are hearsay for having been made extra-judicially. The record, however, shows that the prosecution presented the team leader of the NBI investigators who conducted the investigation, although his testimony was dispensed with as the parties stipulated on the existence and due execution of the NBI Investigation report albeit without admitting the truth of its contents. If at all, the admission of the reports existence is an acknowledgment that it is neither spurious nor counterfeit. All told, given the paucity of substance in the arguments advanced by appellant to prop up his cause, his appeal must fall. WHEREFORE, the May 28, 2002 Decision of the Sandiganbayan is hereby AFFIRMED in all respects.

MILO VS SALANGA G.R. No. L-37007 July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and ARMANDO VALDEZ, petitioners, vs. ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents. GANCAYCO, J.: This is a petition for review on certiorari of an order of the Court of First Instance of Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain can be charged of arbitrary detention. The facts are as follows: On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which reads as follows: The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION, committed as follows: That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio captain, with the aid of some other private persons, namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one Armando Valdez by hitting with butts of their guns and fists blows and immediately thereafter, without legal grounds, with deliberate intent to deprive said Armando Valdez of his constitutional liberty, accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat, members of the police force of Mangsat, Pangasinan conspiring, confederating and helping one another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said Armando Valdez inside the municipal jail of Manaoag, Pangasinan for about eleven (11) hours. (Emphasis supplied.) CONTRARY TO ARTICLE 124 of the R.P.C. Dagupan City, October 12, 1972. (SGD.) VICENTE C. CALDONA Assistant Provincial Fiscal All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty. On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts charged do not constitute an offense and that the proofs adduced at the investigation are not

sufficient to support the filing of the information. Petitioner Assistant Provincial Fiscal Ramon S. Milo filed an opposition thereto. Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to quash in an order dated April 25, 1973. Hence, this petition. Arbitrary Detention is committed by a public officer who, without legal grounds, detains a person. The elements of this crime are the following: 1. That the offender is a public officer or employee. 2. That he detains a person. 3. That the detention is without legal grounds. The ground relied upon by private respondent Tuvera for his motion to quash the information which was sustained by respondent Judge, is that the facts charged do not constitute an offense, that is, that the facts alleged in the information do not constitute the elements of Arbitrary Detention. The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11) hours in the municipal jail without legal ground. No doubt the last two elements of the crime are present. The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be liable for the crime of Arbitrary Detention. The public officers liable for Arbitrary Detention must be vested with authority to detain or order the detention of persons accused of a crime. Such public officers are the policemen and other agents of the law, the judges or mayors. Respondent Judge Salanga did not consider private respondent Tuvera as such public officer when the former made this finding in the questioned order: Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan Tuvera, Sr., has nothing to do with the same because he is not in any way connected with the Police Force of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and jailed him because he has no such authority vested in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan. In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts that the motion to quash was properly sustained for the following reasons: (1) That he did not have the authority to make arrest, nor jail and detain petitioner Valdez as a mere barrio captain;(2) That he is neither a peace officer nor a policeman, (3) That he was not a public official; (4) That he had nothing to do with the detention of petitioner Valdez; (5) That he is not connected directly or indirectly in the administration of the Manaoag Police Force; (6) That barrio captains on April 21, 1972 were not yet considered as persons in authority and that it was

only upon the promulgation of Presidential Decree No. 299 that Barrio Captain and Heads of Barangays were decreed among those who are persons in authority; and that the proper charge was Illegal Detention and Not Arbitrary Detention. We disagree. Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later named barrio captains and now barangay captains) were recognized as persons in authority. In various cases, this Court deemed them as persons in authority, and convicted them of Arbitrary Detention. In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, arrested Father Feliciano Gomez while he was in his church. They made him pass through the door of the vestry and afterwards took him to the municipal building. There, they told him that he was under arrest. The priest had not committed any crime. The two public officials were convicted of Arbitrary Detention.14 In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman, bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered him to the justice of the peace. Sixto was detained during the whole night and until 9:00 a.m. of the next day when he was ordered released by the justice of the peace because he had not committed any crime, Gellada was convicted of Arbitrary Detention.16 Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and duties of a barrio captain include the following: to look after the maintenance of public order in the barrio and to assist the municipal mayor and the municipal councilor in charge of the district in the performance of their duties in such barrio;17 to look after the general welfare of the barrio;18 to enforce all laws and ordinances which are operative within the barrio;19 and to organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and order within the barrio.20 In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has this to say about the above-mentioned powers and duties of a Barrio Captain, to wit: "Upon the barrio captain depends in the main the maintenance of public order in the barrio. For public disorder therein, inevitably people blame him. "In the event that there be a disturbing act to said public order or a threat to disturb public order, what can the barrio captain do? Understandably, he first resorts to peaceful measures. He may take preventive measures like placing the offenders under surveillance and persuading them, where possible, to behave well, but when necessary, he may subject them to the full force of law. "He is a peace officer in the barrio considered under the law as a person in authority. As such, he may make arrest and detain persons within legal limits.21 (Emphasis supplied.) One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that other public officers like judges and mayors, who act with abuse of their functions, may be guilty of this crime. A perusal of the powers and function vested in mayors would show that they are similar to those of a barrio captain except that in the case of the latter, his territorial jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be and are given

the authority to detain or order detention. Noteworthy is the fact that even private respondent Tuvera himself admitted that with the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner Valdez. From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr., can be held liable for Arbitrary Detention. Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as the facts and evidence on record show that there was no crime of Arbitrary Detention;25 that he only sought the aid and assistance of the Manaoag Police Force;26 and that he only accompanied petitioner Valdez to town for the latter's personal safety.27 Suffice it to say that the above allegations can only be raised as a defense at the trial as they traverse what is alleged in the Information. We have repeatedly held that Courts, in resolving a motion to quash, cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information.28 Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy.29 In the case of U.S. vs. Perez,30 this Court held that a motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts not only different but diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are admitted by the prosecution.31lawphi1 Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy has already attached in his favor32 on the ground that here, the case was dismissed or otherwise terminated without his express consent. Respondent's contention holds no water. An order granting a motion to quash, unlike one of denial, is a final order. It is not merely interlocutory and is therefore immediately appealable. The accused cannot claim double jeopardy as the dismissal was secured not only with his consent but at his instance.33 WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded to the appropriate trial court for further proceedings. No pronouncement as to costs. SO ORDERED. Teehankee, C.J., Narvasa, Cruz and Paras, JJ., concur.

PEOPLE VS ANCHETA G.R. No. L-46250 July 26, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE P. ANCHETA, defendant-appellant. Claro M. Recto for appellant. Office of the Solicitor-General Ozaeta for appelle. PER CURIAM: Again this case occupies the attention of this court by reason of the petition filed by the accused and appellant Vicente P. Ancheta for reconsideration of the judgment rendered against him, which affirms that formerly entered by the Court of First Instance of Palawan sentencing him to the indeterminate penalty of from six months of arresto mayor to four years of prision correccional, with the costs of the proceedings. His petition is based on the following grounds: I. That it is an error to hold that the detention of Bibiana Sanson ordered by the appellant was not justified, on the ground that it has not been proven that she had conspired with her brothers to assault said appellant. II. That the conviction of the appellant in this case, after this Supreme Court has found in its decision that "there are circumstances in support of the theory of the defense" that the appellant ordered the arrest of Bibiana Sanson for having conspired with her brothers and with the deceased Salazar to assault said appellant, is a deviation from the uniform ruling that peace officers are empowered to make arrests without warrant when they have reasonable cause to believe that an offense or violation of law has been committed and that the accused is guilty thereof, and is likewise contrary to the express provision of section 848 of the Administrative Code pertinent thereto. We have reviewed the record and firmly adhere to the finding that it was the accused-appellant who really ordered the arrest of Bibiana Sanson upon the belief that she had taken part in the assault committed upon him by the Sanson brothers, Rufo and Cirilo and by justice of the peace Guillermo Salazar. The only question now to be determined anew is: "Was the detention of said woman arbitrary under said circumstances?" Without making a tedious repetition of the facts pertinent to the case, which already appear in the decision rendered in case, which already appear in the decision rendered in case G.R. No. 45344 (37 Off. Gaz., 620), and in the one under reconsideration, it should be stated, however, that the assault committed by the Sanson brothers and justice of the peace Salazar upon the accused-appellant took place immediately after the latter had been approached by Bibiana Sanson in the middle of the street, while he was passing in front of the store situated under the house owned by the Sansons. Under said circumstances, the appellant undoubtedly had well founded reasons to believe that Bibiana Sanson was not innocent of said aggression: first, because it was strange for her, to approach him in the middle of the street feigning friendship, a thing she had never done before, and her brothers, Rufo and Cirilo and justice of the peace Salazar, immediately afterwards and knowing him to be a peace officer, to fall upon him and assault him, punching and kicking him until he fell to the ground, and at the same time wresting from him the revolver which he carried in his belt; second, because the four of them harbored a

grudge against him, and he knew it, by reason of his break with Bibiana and of the slander of which she had allegedly been informed and which she had reached the ears of the Sansons thereby naturally offending them, that he had been spreading the news that she had in his possession some of the Bibiana's innermost garments, and by reason of having complained of the behaviour and investigated the conduct of justice of the peace Salazar in various cases in which the latter had intervened as such justice of the peace; third because Bibiana made no efforts to prevent her brothers and said justice of the peace from maltreating as they in fact maltreated him; and lastly, because after the assault, all the four went up the house of the Sansons, locking up themselves therein until they were compelled to surrender by the Constabulary. There is no doubt that the above-stated facts constitute in themselves strong circumstantial evidence that the aggression was premeditated and was the result of a previous conspiracy in which Bibiana Sanson could not but have a part. Anybody who found himself in the same circumstances as the appellant, who have believed so himself and would have made the same decision, all the more so because the person involved was not merely a peace officer but a commanding officer of a detachment of constabulary soldiers, called upon, by reason of his position, to act promptly in order to preserve order and to bring to the authorities those whom be believes in good faith to be violators of the law. It should be borne in mind that on the same day on which the appellant ordered the detention of Bibiana Sanson, he caused the presentation of a complaint for frustrated homicide, which was so done in fact not only against her but also against her to brothers, because he was then of the opinion that such was the crime committed by them against him. The complaint was filed with the acting vice-president Emilio Castro, on the belief that said official could act upon it, in the absence of the justice of the peace and of the municipal president of Balbac. It seems clear that the appellant ceased to have any responsibility from the time the complaint was filed with the authorities, because it was not then incumbent upon him to take the steps subsequent to said act, such as that of effecting the provisional release of Bibiana Sanson on bail, or that of dismissing the complaint against her for the reason that she does not appear to be liable for any crime, after the corresponding preliminary investigation. In crimes of arbitrary detention (article 124 of the Revised Penal Code, which is equivalent to article 200 of the old Penal Code), the legality of the detention made by a person in authority or an agent thereof, as stated by the Supreme Court of Spain in its decision of January 27, 1855, does not depend upon the judicial and much less judicial fact of a crime which, at the time of its commission, is not and cannot definitively be determined for lack of the necessary data and of jurisdiction, but upon the nature of the deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at that moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime and that the same grounds exist to believe that the person sought to be detained participated therein (Decision of the Supreme Court of Spain of November 5, 1892). This same ruling was upheld by this court in several cases, among them being that of United States vs. Santos (36 Phil., 853), where it was stated that the reasonable or probable cause which must exist to justify an arrest without warrant consists in a ground sufficient in itself to

convince a reasonable man to believe that the person arrested by him is guilty; and that, besides reasonable ground of suspicion, action in good faith is another protective bulwark for the peace officer making the arrest. It was likewise stated therein that under such conditions, even if the suspected person is later found to be innocent, the peace officer who arrested him is not liable, adding that one should not expect too much of a policeman, and the same is true with a constabulary officer as the appellant, because both are not presumed to have the training and preparation of a judicial officer, not having as they do not often have the opportunity to make proper investigation but must act in haste on their own belief to prevent the escape of the criminal. It should likewise be borne in mind that the law (section 848 of the Administrative Code and article 124 of the Revised Penal Code) allows members of the Constabulary or policemen, and in general, every public officer or employee, to make arrest without warrant, not only when a crime is being committed or is about to be committed in their own presence, but also when they reasonably believe or have ground to suspect that a crime has been committed and that it has been committed precisely by the person arrested (U.S . vs. Fortaleza, 12 Phil., 472; U.S. vs. Samonte, 16 Phil., 516; U.S. vs. Batallones, 23 Phil., 46; U.S. vs. Santos, supra; People vs. Kagui Malasugui, 63 Phil., 221). Bibiana Sanson's detention ordered by the appellant took place exactly under these same circumstances. Wherefore, judgment is rendered acquitting the appellant Vicente P. Ancheta, lieutenant of the Constabulary, of the crime of arbitrary detention with which he was charged, the detention of Bibiana Sanson ordered by him being as it is now declared sufficiently justified, in view of the circumstances surrounding the same, with the costs de oficio. So ordered. Avancea, C.J., Villa-Real, Imperial, Diaz, Concepcion, and Moran, JJ., concur.

PEOPLE VS. MOLLEDA G.R. No. L-34248 November 21, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO MOLLEDA y GERONA alias TIKBOY, VIRGILIO BALUYOT y DIESTRO alias BOY BAKAL, REYNALDO NICOLAS y MANANSALA alias BOY MIROY and EVELYN DUAVE y ORTEGA alias BABY CHINA, defendants-appellants. Joshua T. Caponong for appellants Baluyot and Nicolas. Marcial Desiderio and Gamaliel G. Bongco for appellant Evelyn Duave. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and Solicitor Nathaniel P. de Pano, Jr. for appellee.

SANTOS, J.: Mandatory review of the decision of the Circuit Criminal Court, Manila, Judge Manuel R. Pamaran, presiding, in Criminal Case No. CCC-IV-548(71) in which the above-named accused were each and all convicted as principals in the crime of murder, qualified by taking advantage of superior strength and with the aggravating circumstance of "deceit", and sentenced, each and all, to death, to jointly and severally indemnify the heirs of the deceased in the sum of P12,000.00, to pay P8,000.00 as exemplary, and P8,000.00 as moral, damages, and the costs. On April 6, 1971, the above-named accused were charged with murder in an information, filed by Assistant Fiscal Bernabe Tiongco, to wit The undersigned accuses Roberto Molleda y Gerona alias Tikboy, Virgilio Baluyot alias Boy Bakal, Reynaldo Nicolas alias Boy Miroy and Evelyn Duave alias Baby China. That on or about January 7, 1971, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one whose true name and Identity are still unknown, and helping one another with the use of superior strength, did then and there wilfully, unlawfully and feloniously, with intent to kill, and with treachery and evident premeditation, attack, assault and use personal violence on one Alfredo Bocaling then and there stabbing him with a knife on the stomach and left arm, hitting him several times on the head with a piece of wood and kicking him, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter. Contrary to law. At the trial, the prosecution presented the testimony of Ramon Ching, an eye- and ear-witness to the killing, Dr. Abelardo Lucero, Medico-Legal officer of the Manila Police Department, Detective Amador Jose, Manila Police Department (MPD), Patrolman Nestor Miguel, MPD and Investigator, Precinct 9, and Exhibits A, a Sketch; B, Identification Slip; C, Human Sketch; D, Certificate of Death; E, Postmortem findings; F, Necropsy report; G, Statement of Roberto Molleda; H, Statement of Virgilio Baluyot; and I, Statement of Reynaldo Nicolas.

The defense presented the testimonies of the accused Roberto Molleda, Reynaldo Nicolas, Virgilio Baluyot and Evelyn Duave and Exhibits 1, Duave, a sketch; 1-a (Molleda) Statement of Sta. Brigida; 2 (Molleda) I.D. of Molleda; 2-a (Molleda) I.D. of Molleda; 2-b (Molleda) I.D. of Molleda; 2-c (Molleda) Voter's I.D. of Molleda. The operative facts of and circumstances surrounding the commission of the crime and the apprehension and investigation of the accused as gleaned from the testimonies of the witnesses and the extra-judicial statements of three of the accused follow. At or about 8:00 in the evening of January 7, 1971, Alfredo Bocaling and Ramon Ching were in the ground floor of the Good Earth Emporium on Rizal Avenue, Manila, waiting for one Daniel Morosi. While thus waiting for Morosi, they were invited by two women, Evelyn Duave alias Baby China and Melinda, to join them as they Evelyn and Melinda will return a radio at Suter St., near Herran. Since Ramon Ching had known Evelyn Duave alias Baby China for two years already as a call girl, the two Bocaling and Ching agreed to go with them because they were also going to one Gordon, their friend, to whom the transistor radio will be returned. They rode in a bus and at some point on Herran (now Pedro Gil St.) alighted therefrom and then took a taxi for the house where Gordon lived. They arrived at Suter Street, whereupon, Melinda alighted from the taxi in which they were riding, while the three remained inside. Melinda said that she would talk to somebody. When Melinda returned, she was with a male companion. Ching and Bocaling were introduced to her male companion, a certain Paking. They were thereafter told to alight from the taxi and to proceed to a certain house nearby with Evelyn. Ching and Bocaling saw four persons drinking, namely, Bay, Paking, a certain cursillista whom they did not know and one Ngongo. They joined the four and drank with them. A little while later, Melinda asked permission from them to go out to buy something. After about five minutes, she returned with three men, one of whom is a friend of Gordon, Reynaldo Nicolas alias Boy Miroy, who joined them. After drinking and conversing for sometime, Evelyn stood up and asked permission to go to a nearby store to buy lollipop. Actually, Evelyn contacted Roberto Molleda alias Tikboy, Virgilio Baluyot alias Boy Bakal and Reynaldo Nicolas alias Boy Miroy, all members of the Sigue-Sigue Sputnik gang. She informed them that the persons who robbed and raped her were there in the house. She then returned with Roberto Molleda, and Virgilio Baluyot to the house. They were introduced to each other and the group continued with their drinking. A while later, at or about 10:00 P.M., Ching and Bocaling indicated that they wanted to go home. The rest of the group also prepared to leave. When they stepped out of the house, the group saw a wake in another house, nearby. They dropped there and stayed for a while, after which the group went to the corner of Suter and Tejeron streets. As they were proceeding towards Herran, now Pedro Gil, Nicolas alias Boy Miroy placed his hand on the shoulder of Ching, while Baluyot alias Boy Bakal did the same to Bocaling in an apparent show of friendliness to dispel any suspicion on the part of the two. A little while later, as they reached the corner of Suter and Tejeron streets, Ching was suddenly boxed on the nape by Nicolas and at almost the same time, Baluyot boxed Bocaling also on the nape. Ching sensing trouble, shouted to Bocaling, "Takbo na tayo, Freddie," and ran towards Pedro Gil. He was chased by two or three male companions who were earlier introduced to them. Alfredo Bocaling fell at the corner of Suter and Tejeron streets, possibly because he tripped; but Ching was able to make good his escape. While Ching was being chased, he turned his head towards Suter and saw several persons ganging up (pinagtutulungan) on Freddie Bocaling. He was being hit with bottles and pieces of wood by Molleda, Baluyot and Nicolas, and Baby China hit Bocaling with a belt. Ching hastily boarded a passenger jeep and proceeded

to Rizal Park to look for Danny Morosi. Ching, however, failed to see Morosi and instead saw one Ruding Bakal. At or around 11.00 P.M., Ching returned to the corner of Suter and Tejeron, with Rudy Aguilar, another person also by the name of Rudy and Junior. He informed them of what had happened to Freddie Bocaling. They did not see Bocaling anymore. On the following day, Ching learned that Bocaling was dead, whereupon he reported the incident to the authorities. The police investigated him. Alfredo Bocaling died as a result of the mauling. According to the post-mortem findings, Exhibit "E", he suffered the following injuries (1) Stab wounds measuring 2 x 1 x 18 cm. located at the right axillary line at the level of the 6th interspace ... (2) Punctured wound measuring 0.2 x 1 cm. x 3 cm. located in the anterior upper left lateral chest. (3) Stab wound measuring 1.5 x 0.5 x 2 cm. located in the left anterior chest at the level of the anterior axillary line (slight). (4) Stab wound measuring 2.5 x 1 x 6 cm. located in the posteroateral portion of the upper 3rds of the left arm. ... (5) (6) Multiple (2) lacerated wounds in the parietal region of the head. Multiple (4) hematoma located in the frontal region.

(7) Multiple (8) abrasions in the anterior left chest, right knee and another in the anterior surface of the lower right lip. Dr. Abelardo Lucero, medical examiner of the Manila Police Department, who examined the cadaver of Bocaling, said that the cause of death was "intrapericardial tamponade due to multiple four (4) stab wounds lacerating the heart, liver and diaphragm; blunt injuries, contributing." Stab wound No. (1) which was "directed obliquely upwards to the left and slightly to the back lacerating the right lobe liver, diaphragm, through the right ventricle of the heart" was fatal. The incident was reported to Precinct 9 at Sta. Ana. It was investigated by Detective Amador Jose, Manila Police Department (MPD), who was on duty as investigator of the Precinct. The statements of Ramon Ching and one Manuel Sta. Brigida were taken. After a follow-up of the case, Detective Jose found and established the Identities of the suspects as the above-named accused Roberto Molleda alias Tikboy, Virgilio Baluyot alias Boy Bakal, Reynaldo Nicolas alias Boy Miroy all members of the Sigue-Sigue Sputnik gang and Evelyn Duave alias Baby China. Meanwhile, shortly after the mauling incident, on the evening of January 7, 1971, Molleda, Nicolas, Baluyot, Duave and Melinda proceeded to Cine Rey. Thereafter, they went to the house of a friend, Chiqui, where they tarried for a while. They then proceeded to the house of Evelyn Duave who gave her electric fan to Nicolas who in turn hocked the same to her aunt,

Alicia Nicolas, who lives at Sta. Ana, Pateros, Rizal. Therafter, they proceeded to Olongapo City after they received information that masked men were coming back to Suter Street. While in Olongapo, the group stayed in the house of another friend, one Carling Esmeralda on Pag-asa street. After a day or so they rented a house near Gordon Avenue somewhere near Pag-asa street. Evelyn and Melinda continued with their calling and worked as hostesses to provide the expenses of the group, who were then in hiding. But the long arm of the law finally caught up with them in their hiding place and on March 5, 1971, Roberto Molleda fell into the hands of the operatives of the Anti-Hoodlum Unit thru which the alarm for the apprehension of the suspects was flashed. Molleda was brought to Manila for investigation in connection with the killing of Bocaling on January 7, 1971. Virgilio Baluyot, Reynaldo Nicolas and Evelyn Duave also fell into the hands of the law and were also likewise brought to Precinct 9, Sta. Ana, Manila, for investigation. Melinda, the common-law-wife of Reynaldo Nicolas was able to evade the operatives of the Anti-Hoodlum Unit and has remained at large. During the investigation Roberto Molleda, who was investigated by Det. Amador Jose, gave his statement on April 5, 1971; while Virgilio Baluyot and Reynaldo Nicolas gave their written statements on April 4 and 5, respectively before Pat. Nestor T. Miguel. Evelyn Duave was present when the three pointed to her as their companion and incriminated her; she did not contradict their statements. Molleda's account of the killing follows xxx xxx xxx

7. T - Sino sino ang mga kasama mo sa pagpatay sa isang lalaki duon sa Suter Sta. Ana, Manila, nuong 10:00 ng gabi, Enero 7, 1971 na binanggit mo sa itaas nito? S - Ang mga kasama po ay sina Reynaldo Molleda alias Boy Miroy, si Virgilio Baluyot alias Boy Bakal at si Baby China at si Melinda. 8. T Melinda? - Saan naroroon ngayon sina Virgilio Baluyot, Reynaldo Nicholas, Baby China at

S - Ayun po sina Reynaldo Nicholas, alias Boy Miroy, Virgilio Baluyot, alias Boy Bakal, Baby China na ang tunay na pangalan ay Evelyn Duave y Ortega at si Melinda po ay wala rito. (Itinuro ang mga nabanggit na mga tao na nasa loob ng opisina. 9. T - Maaari mo bang sabihin dito sa amin ang mga bagay- bagay tungkol sa ginawa ninyong pagpatay duon sa isang lalaking ipinaalam namin sa iyo na si Alfredo Bocaling y Barcenas ng mga 10:00 ng gabi, Enero 7, 1971, sa Suter, Sta. Ana, Maynila? S - Opo. Nuong hapon ng Enero 7, 1971, kami nina Reynaldo Nicolas alias Boy Miroy at Virgilio Baluyot alias Boy Bakal ay nag-inuman ng alak sa Bagong Bituin Restaurant sa J. Rizal Ave., Makati, Rizal, at inabot kami ng gabi doon. Nuong mga 10:00 ng gabi ng araw na iyon ay umalis kami sa nasabing resturant at sumakay kami ng isang pangpasaherong jeep at bumaba kaming tatlo sa kanto ng Tejeron at Suter at sinalubong kami ni Baby China at Melinda at sinabi ni Baby China sa amin na pinagnakawan siya ng pera at ni rape pa siya sa isang hotel ng ilang lalaki. Sinabi ni Baby China na ang dalawa sa mga lalaking nagnakaw ng kanyang pera at ng

rape sa kanya ay nanduon sa isang bahay duon sa Suter Sta. Ana, Manila at kami ay naglakad napapunta doon sa nasabing bahay. Nagdaan ako sa isang patay duon sa Suter at sina Boy Miroy, Boy Bakal, Baby China at Melinda na lamang ang nagpunta duon sa bahay na pinagiinuman na binanggit ni Baby China. Pagkaraan ng humigit kumulang sa beinte minutos ay nakita ko silang nagdaan papunta ng Tejeron at akbay ni Boy Miroy ang isang lalaki at akbay din ni Boy Bakal ang isa pang lalaki at kasama nila sina Baby China at Melinda at ako'y sumunod sa kanila. Nang malapit na kami sa kanto ng Tejeron ay pinalo ni Boy Bakal ng hibilya ng sinturon sa ulo ang lalaking akbay niya at sinuntok naman ni Boy Miroy iyong lalaking akbay niya at nakatakbo ang nasabing lalaki. Nahawakan ni Boy Bakal iyong lalaking akbay niya, hinabol namin ni Boy Miroy iyong lalaking nakatakbo at hindi namin siya inabutan at nagbalik at nakita ko na bagsak na sa dean dahil sa palo iyong lalaking nahawakan ni Boy Bakal. Dumampot ng isang kahoy si Boy Miroy at pinagpapalo sa ulo iyong lalaki. Sinaksak ko naman ang nasabing lalaki ng isang kutsilyo sa kanyang tiyan at pinagpapalo pa ni Boy Bakal at Boy Miroy ang lalaking sinaksak ko habang sinasabi ni Baby China na tuluyan siyang patayin kung hindi isasauli iyong pera niya. Pagkatapos na murahin ng marami ang lalaking sinaksak ko ay umalis na kami at nagpunta kami duon sa bahay na may patay at pagkatapos ay nagpunta kami sa Pateros, Rizal, at duon kami nagpaumaga at kinabukasan ay nagpunta kami sa Olongapo City. Baluyot's account in turn, follows 06. T - Maaari ba naman na isalaysay mo sa pagsisiyasat na ito, kung ano ang mga bagay-bagay na iyong nalalaman na may kinalaman din naman sa patayan na naganap sa Suter St., Sta. Ana, Manila? S - Ganito po iyon, kami pong tatlo nina BOY MIROY, TIKBOY at AKO ay nag-inuman sa Makati, Rizal, sa Tejeron St., sa loob ng Bagong Bituin Restaurant nuong gabi ng mga oras na humigit-kumulang sa ika 9:00 ng gabi ng bago mangyari ang patayan sa daang Suter at matapos na kami ay makapag-inuman ay umuwi na at pagdating namin sa kanto ng Suter at Tejeron ay aming nakita itong si Baby China tinawag po ni Baby China sina BOY MIROY at TIKBOY at niyaya na magtuloy sa bahay nila POPOY na ang tunay na pangalan ay MANUEL STA. BRIGIDA at sila po ay nag-inuman samantalang ako po naman ay nasa bahay nina ELSA na nakaburol ng mga pagkakataong iyon na malapit sa bahay nina POPOY at hindi po natagalan ay lumabas sina TIKBOY, BOY MIROY, MELINDA, BABY CHINA, at may kasama pang dalawang lalaki na hindi ko po kilala at ako po ay kinalabit ni BOY MIROY at sinenyasan naman ako ni TIKBOY na sumunod sa kanila at nang kami po ay naglalakad ay aking tinanong si BOY MIROY kung bakit at sinabi niya sa akin na ang dalawang lalaki na kanilang kasabay ay mayroong atraso kina BABY CHINA at MELINDA at mayroon tatak na BAHALA NA GANG, inakbayan po ni BOY MIROY and isa sa dalawang lalaki at ang isa po naman sa kanila ay kinausap namin ni TIKBOY, at tinanong kung saan sila umuuwi at ako po ay nagpakilala na ako si BOY at samantalang kami po ay naglalakad na, nauuna si BOY MIROY at kaakbay ang isa sa dalawang lalaki ay nakita ko na sinuntok ni BOY MIROY ang kanyang kaakbay at ang kasabay naman namin ni TIKBOY ay tumakbo at kami naman ni TIKBOY ay tumakbo palapit kay BOY MIROY at tinanong ko si BOY MIROY kung bakit niya sinuntok o inumpisahan at sinabi niya sa amin ni TIKBOY na iyon ang siyang nagnakaw ng pera ni BABY CHINA at matapos na aking malaman kay BOY MIROY na iyon ang siyang nagnakaw ng pera ni BABY CHINA ay sinuntok ko po iyon (lalaki) at bumagsak sa lupa at ng iyon po ay bumulagda ay nilapitan naman siya ni TIKBOY at sinaksak at si BOY MIROY po naman ay kumuha ng isang pirasong kahoy, pinalo po niya sa ulo, likod at ibang parte ng katawan ang nakahandusay na tao at ako po naman ay hinugot ko ang aking sinturon at pinalo ng hibilya ang taong nakahandusay at bago kami umalis ay minsan ko pang hinataw ng hibilya ng aking sinturon ang

tao na tumama sa kanyang noo at ako po at si BOY MIROY ay tinawag ni TIKBOY at nagsabi na "PARE, HALIKA NA KAYO, TAMA NA YAN" at habang kami po ay papalayo sa lugar na pinangyarihan ay sinabi niya sa amin ni BOY MIROY na sinaksak niya iyong tao at kami ay nagtuloy sa patay at hindi nagtagal ay mayroong dumating na taong lalaki at kinausap si BOY MIROY at TIKBOY at ng bumalik po sina BOY MIROY at TIKBOY, tinawag ako na nang mga pagkakataong iyon ay umiinom ng kape at sinabi sa akin noong tao na tumawag sa kanila na patay na iyong tao at ako nga po ay niyaya na nilang magtago. xxx xxx xxx

11. T - Ayon sa iyo ay nagkasama kayo nina BABY CHINA, MELINDA, TIKBOY at BOY MIROY, sa isang bahay na inyong inupahan sa Olongapo, nalalaman mo ba naman kung saan ngayon naroroon itong iyong mga kasamahan na ito? S - Si BABY CHINA at BOY MIROY po ay narito ngayon dito sa presinto ng Sta. Ana at nakakulong at si TIKBOY po naman ay nakakulong din sa Olongapo City ayon sa kina BABY CHINA at BOY MIROY, dahilan iyon daw po sa mayroong pending case doon at si Melinda po naman ay hindi ko alam. 16. T - Sinabi mo na itong si MIROY ay narito ngayon dito sa presinto ng Sta. Ana, Manila, at itong si Baby China, sila ba ay narito ngayon? S - Opo, ito po si BOY MIROY (Declarant pointing to the person Reynaldo Nicholas y Manansala) at iyon po naman si Baby CHINA (Declarant pointing to the person Evelyn Duave y Ortega). xxx xxx xxx

And Nicolas' account follows xxx xxx xxx

09. T - Sinabi mo na ikaw ay narito sa aming tanggapan, dahilan sa pagkakapatay ninyong magkakasama na iyong binanggit sa salaysay na ito, sa isang tao, noong ika-7 ng Enero, 1971, sa Suter St., maaari ba naman isalaysay mo sa lalong maikling pananalita ang buong pangyayari? S - Ganito po iyon, nasa Makati po kami at nag-iinuman sa Bagong Bituin Restaurant na nasa daang J. Rizal. Matapos po kaming mag-inuman, kami ay umuwi at pagdating namin sa kalye Suter, Maynila ay nasalubong namin si Evelyn at nagsumbong sa akin na iyon daw pong tao na nagnakaw ng kanyang pera ay naroon sa bahay nina Manuel Sta. Brigida na nasa kalye Suter, kami nina BOY MIROY, EVELYN at TIKBOY ay nagpunta doon at sa pagdating po namin doon ay tamang-tama na lumalabas na sila, tinawag ko po sila ng "PARE PUEDE BANG MAKAUSAP KAYO SANDALI" at kinalabit po ni TIKBOY SI BOY BAKAL o VIRGILIO BALUYOT na ng mga sandaling iyon ay nasa lamayan at aming sinabayan ang dalawang tao sa paglakad nila sa kalye Tejeron hanggang kanto ng kalye Suter at aking sinuntok iyong isa sa dalawang magkasama at lumapit sina BOY BAKAL at TIKBOY sa akin at ako po ay tinanong ni BOY BAKAL kung bakit ko sinuntok, ang sagot ko ay ito raw ang nagnakaw ng pera ni Evelyn at matapos na malaman ni BOY BAKAL ay sinuntok niya iyong tao at bumagsak naman at lumapit si TIKBOY at sinaksak iyong Lao at. pagkatapos poniyon ay hinagupit ng sinturon ni BOY BAKAL iyong tao at kami ay tinawag ni TIKBOY at sinabi na tama na pare at umalis na kami.

xxx T tao?

xxx

xxx

- Ano naman ang ginawa ninyo matapos na inyong mapag-alaman na patay na iyong

S - Amin po ipinaalam kay BOY BAKAL na patay na ang tao na aming binugbog sa kalye Suter at kami po ay nagpunta sa bahay ni EVELYN Sa kalye San Jose malapit sa kanto ng Legaspi, Makati, Rizal. Kinuha ni Evelyn ang kanyang bentilador at iyon po ay ibinigay sa akin at isinanla ko naman kay Alicia Nicholas na aking tiyahin na nakatira sa Sta. Ana, Pateros, Rizal, at nagtuloy na kaming magkakasama sa Olongapo City. xxx xxx xxx

20. T - Saan naman kayo kumuha ng inyong iniuupa sa bahay na inyong inupahan sa Gordon Avenue? S xxx - Nag-hostess po si BABY CHINA at ang aking asawa na si MELINDA. xxx xxx

On June 11, 1971, after trial, the court a quo rendered its decision, which - in detailing its rationale for its findings on the guilt of the herein accused-appellants and its sentence-held as follows: As to the proofs on record, i.e., the eyewitness testimony of Ching and the extrajudicial statements which establish the conspiracy to kill Alfredo Bocaling xxx xxx xxx

The testimony of Ramon Ching indubitably shows that the four (4) accused conspired and confederated with one another in killing the victim. Ching testified in a categorical, spontaneous, straightforward and logical manner with marked ease and fluency that while he and the victim (Alfredo Bocaling) were on the way to the intersection of Suter and Tejeron Streets, Manila, with the four (4) accused and others like a certain Melinda, he was boxed by Nicolas on the nape. Bocaling was also boxed on the nape either by Molleda or Baluyot and for which he shouted "Takbo na tayo, Freddie". He ran towards Herran St. with two or three persons chasing him, while Bocaling fell at the corner of Suter and Tejeron possibly because he tripped. While he was being chased, he turned his back towards Suter and saw several persons helping one another in mauling the victim. The victim was being hit by a belt, bottles and pieces of wood. AccusedMolleda, Baluyot and Nicolas were among those persons mauling the victim. Accused Duave also participated in the mauling of the victim by hitting him with a belt. The positive categorical testimony of Ching became more convincing in the cross-examination to which he had been exposed wherein he reiterated in full details the mauling of the victim. He declared that he was running sidewise when he saw Bocaling being mauled and he was only eighteen (18) meters away from him. There was even a light at the corner about twelve (12) meters away from where the victim was mauled. He looked back three (3) times while running and the first time he looked back, he saw the victim already being mauled. He even demonstrated with particularity how Duave hit the victim with a belt by taking hold of a leather belt, rolled the end of it around her right palm and with the buckle at the other end made a swinging motion of the belt from his back to the front and at the same time made a step forward.

The fact that no evil or bad motive was presented by the accused why Ching will testify in the manner he did if such were not the fact further augments his testimony. Settled is the rule that where no evidence whatsoever have been presented to show bad or evil motive why the witnesses for the prosecution should have testified falsely against the defendant (People versus Macalindong, 76 Phil. 719), and where the defendant failed to show that the prosecution witnesses have any special interest in the conviction of the accused, the logical conclusion is that no such improper motive existed and their testimony is worthy of full faith and credit (People vs. Borbono, 76 Phil, 702; People vs. Baquio, 77 Phil. 427). Prosecution witnesses who had no reason to falsely impute on the defendants the commission of so grave an offense deserve credence (People vs. Albapara, L-25001, March 15, 1968). It cannot be assumed that in seeking justice and the punishment of the assailant, prosecution witnesses would indiscriminately and without any motive, point to the wrong parties (People vs. Ricaplaza, L25856, April 29, 1968). The testimony of Ching that the accused helped one another in assaulting the victim is corroborated by the extra judicial confessions of accused Molleda, Baluyot and Nicolas. Accused Roberto Molleda admitted in his statement (Exhibit 'G') that he stabbed the victim on the stomach with a kitchen knife while Baluyot and Nicolas were hitting the victim all to the tune of Duave's utterances that they kill the victim if he will not return her money. Virgilio Baluyot also admitted in his statement (Exhibit "H") that after he was informed by Nicolas that the victim was the one who stole the money of Duave, he boxed the victim who fell on the ground. While already in that position, Molleda approached the victim and stabbed him while Nicolas got a piece of wood and hit the victim on the head, at the back and other parts of his body. At this juncture, he pulled his belt and hit the victim with the buckle while the latter was lying flat on his back. In the process, Duave was giving orders to maul the victim as he was really the one who stole her money. Before they finally left, he even hit again the victim's forehead with the buckle of his belt. Reynaldo Nicolas likewise admitted in his statement (Exhibit "I") that he boxed the victim and thereafter, the victim was boxed again by Baluyot and stabbed by Molleda. The trial court then explained why the extra-judicial confessions of the three Molleda, Baluyot and Nicolas were admissible against Evelyn Duave alias Baby China, and cited decisions in support thereof These extra-judicial confessions of Molleda, Baluyot and Nicolas which Identically show also that Duave instigated the assault on the victim can be taken likewise against Duave. It has been repeatedly held that 'extra-judicial confessions independently made without collusions, which are Identical with each other in their essential details and are corroborated by other evidence on records are admissible as circumstantial evidence against the person implicated to show the probability of the latter's actual participation in the commission of the crime. (People v. Condemena, L-22426, May 29, 1968; People vs. Provo, L-28347, January 20, 1971). In this particular case, Ching corroborated the fact that Duave was one of those who assaulted the victim by hitting him with the buckle of a belt. xxx xxx xxx

In passing upon the claims of the accused that their statements were extracted from them through third degree, i.e., maltreatment, force and intimidation, the trial court observed The claim of accused Molleda, Baluyot and Nicolas that they were forced to give their statements has the earmark of artificiality. Their statements contain details which could only be given by them and for which the police could not be much interested or possibly concoct like for example, the fact that they assaulted the victim because according to Duave he was the one who raped her and stole her money; that they first came from the Bagong Bituin Restaurant in Rizal, Makati, where they had a drinking spree before they proceeded to Suter and many more. The answers to the questions appearing in the statements of the accused appear also to be fully informative and even beyond the requirements of the question indicating that the minds of the accused were free from extraneous restrain. It has been held that where the statements of the appellants in answer to the questions are responsive and informative containing details which only the declarant could have furnished, and could not have concocted by the investigators the said statements are considered to have been voluntarily given (People v. Dorado, L-23464, Oct. 30, 1969). The Court has likewise observed that the statements of the accused were not only subscribed but signed before the Inquest Fiscal who, before swearing the accused, even inquired from them whether their statements contained the truth and they so answered in the affirmative. They did not make any complaint or protests before the Fiscal. It is well established jurisprudence that where the confession was subscribed and sworn to by the appellant before an Assistant City Fiscal of Manila and it was not shown at all that appellant ever hesitated or refused to sign and swear to the same, much less did he protest to the fiscal regarding the way he was investigated, the confession is considered to have been voluntarily given. (People v. Racca, et al., L-15812, December 30, 1961; People v. Dorado, L-23464, October 31, 1969). The Court then observed that the injuries inflicted on the victim as revealed in the statements of the accused were corroborated by the post-mortem findings and the testimony of the lone eye-and ear-witness to the killing It is also worthwhile to note that the injuries inflicted on the victim as confessed by Molleda, Baluyot and Nicolas in their respective statements were corroborated by the post-mortem findings of Dr. Lucero. The post-mortem findings (Exhibit 'E') shows that the victim actually suffered stab wounds on the front part of his body, namely, one 'in the left anterior chest at the level of the anterior axillary line' (wound no. 3) and another one 'in the right axillary line at the level of the 6th interspace' (wound no. 1). These wounds corroborated the stabbing of the victim as admitted by Molleda. The four (4) hematomas located in the frontal region or on the forehead of the accused (wound no. 6, Exhibit 'E'), corroborated the fact that the victim was hit with a piece of wood by Nicolas or a buckle and the two (2) lacerated wounds on the parietal region of the head (wound no, 5, Exhibit 'E') bolster the fact that accused was hit also by a blunt or a hard object. The same is true with the abrasions on the anterior left chest, right knee and on the anterior surface of the right lower lip (wound no. 7, Exhibit "E"). They indicate that the victim had really been hit by a blow of a blunt object. It is important to stress that the facts narrated in the confession of the accused were more or less corroborated by the testimony of Ramon Ching. In the statements of Molleda (Exhibit "G"), it was admitted therein that a companion of the victim was boxed but he was able to run away, hence, they chased him. Ching testified that he was boxed on the nape and he was able to run

away but chased by the friends of the accused. Ching also testified that the four (4) accused helped one another in assaulting the victim. The Court noted that all the accused fled to Olongapo City after the murder The fact that accused Molleda, Baluyot and Nicolas truthfully confessed their participation in the commission of the crime is further augmented by the fact that they, with Duave and Melinda, fled from the crime scene to Olongapo City immediately after the happening of the incident. Nicolas testified in Court that he and Baluyot went to Olongapo the day immediately after the incident and there saw Duave and Melinda. Baluyot also testified that they all did not go home that evening but went straight to Olongapo City after staying for a while in Chiqui's house. But two (2) weeks after, he left Olongapo and went to the house of his aunt in Pasig, Rizal, instead of going to his residence in Suter, where he was apprehended. Duave likewise testified that she went to Olongapo with Melinda on January 8, 1971. And it has been held that 'the wicked flee, when no man pursueth but the righteous are as bold as a lion (US vs. Algad, 25 Phil. 510; U.S. vs. Uy, 37 Phil. 618; People vs. Manalo and Atienza, 46 Phil. 572). This is especially true in this case where all the accused were not able to explain their flight to Olongapo, and flight, when unexplained, is proof of guilty (People vs. Bacra, L-11485, July 11, 1958; People vs. Cidro, L11804, February 28, 1959). Only Baluyot made the explanation that he went to Olongapo because they received news that masked men were coming back, which explanation however, being uncorroborated and made in general terms is too flimsy to discuss. The Court also considered the defenses alibi and non-participation put up by the accused Accused interposed different defenses. Roberto Molleda interposed the defense of alibi for the reason that in the evening of January 7, 1971, he was in Olongapo City. But alibi, however, is considered a weak defense not only because of the facility with which it is fabricated but also because it is so easy for witnessses to get confused as to the dates (People vs. Ramos, L17404-03, August 31, 1963) and becomes worthless in the face of positive Identification by prosecution witnesses pointing to the accused as particeps criminis (People vs. Peralta et al., L19019, October 29, 1968). In this particular case, the alibi of Molleda does not measure up to that standard for here he was categorically and positively Identified by witness Ramon Ching. He was even invariably implicated by his co-accused Baluyot and Nicolas in their respective statements and which statements according to the case of People v. Condemena and People v. Provo, supra, can be considered against him. Accused Baluyot, Nicolas and Duave admitted their presence in the crime scene but denied, however, having inflicted any injury on the victim. But their testimony lack the sincerity and candidness of a credible testimony. They cannot prevail over and above the positive, categorical and clear testimony of Ramon Ching whom this Court found to have passed the test of credibility as he appeared to be very truthful in his behavior giving quick, frank and straightforward answers to all material questions in an easy and fluent manner. The denial of Baluyot and Nicolas likewise falls by its own weight in the light of their respective extra-judicial confessions which this Court found to have been voluntarily given. But what exposed the inherent weakness of the denial of Baluyot, Nicolas and Duave is, as discussed before, their failure to explain why they fled to Olongapo in the following morning after the incident. Finally, as to the nature of the crime committed by the accused, the trial court held

The crime committed is murder qualified by taking advantage of superior strength. It is clear from the testimony of Ramon Ching and the extra-judicial confessions of Molleda, Baluyot and Nicolas that all of the four accused armed with pieces of wood, bladed instrument and belt helped one another in assaulting the victim who was alone and unarmed. The fact that said accused took advantage of the superiority that their number and arms can afford is shown by the fact that they were able to mercilessly and indiscriminately assault the victim inflicting on him three (3) stab wounds, one (1) punctured wound, two (2) multiple lacerated wounds, four (4) hematomas and eight (8) abrasions on the different parts of his body (Exhibits 'C' and 'E'). The said injuries show that the victim was not match at all to the accused. The aggravating circumstance of deceit is considered against all the accused. It appears from the statement of Molleda (Exhibit "G") and that of Baluyot (Exhibit "H") that all of the accused, with murder in their hearts, pretended to accompany the victim in a friendly manner in going home. And in order to lure the victim into a full sense of security and make him unmindful of the tragedy that will befall upon him one of the accused even placed his hand on the shoulder of the victim while walking, but before reaching the corner of Tejeron and Suter the victim and his companions were immediately assaulted. As a matter of fact, there was deceit right from the start when Duave invited the victim and Ching to Suter upon meeting them in the Good Earth Emporium in Rizal Avenue, Manila, under the pretext of returning a radio. Upon arrival thereat, the victim and Ching were entertained in a drinking spree and in the course thereof Duave left and contacted her co-accused and informed them that the persons who raped and robbed her in the hotel are in the house drinking. All the while, the victim and Ching did not know of the evil plot to liquidate them. These facts were established by the testimony of Ching and the statements of Molleda, Baluyot and Nicolas. The Court did not consider anymore treachery as it is absorbed already in abuse of superior strength (People vs. Redoa, 87 Phil. 743; People v. Alcantara, 33 SCRA 812). Neither did it consider evident premeditation because there was no showing that there was a sufficient length of time that transpired from the plan to kill to the actual killing of the victim for the accused to cooly and serenely think and deliberate on the consequences of their evil act (People v. Mendoza, et al. 91 Phil. 64). The penalty imposed herein may seem harsh especially on Evelyn Duave but considering, however, the gruesome killing of the victim whom they beat and stabbed to death with extreme cruelty the Court has no alternative but to impose it for the law gives no mercy to perpetrators of heinous crime. As a matter of fact, even the Beatitudes says that only the merciful shall receive mercy. xxx xxx xxx

The four accused-appellants filed three separate briefs. * Roberto Molleda alias Tikboy raises the following Assignments of Errors: I THE TRIAL COURT ERRED IN NOT REJECTING THE SUPPOSED CONFESSION OF MOLLEDA, AS NOT ALL THE WITNESSES TO IT TESTIFIED, PARTICULARLY CONSIDERING THAT IT WAS REPUDIATED BY SAID ACCUSED AND THAT THIS CASE INVOLVES THE CAPITAL PENALTY.

II THE TRIAL COURT ERRED IN TAKING AS PROOF OF GUILT OF MOLLEDA THE CIRCUMSTANCE OF FLIGHT TO OLONGAPO AS HE WAS A RESIDENT OF AND EMPLOYEE IN THAT CITY. III THE TRIAL COURT ERRED IN REJECTING MOLLEDA'S OF ALIBI. IV ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE OFFENDED PARTY, THE TRIAL COURT ERRED IN CONVICTING HIM FOR MURDER, AS THE QUALIFYING CIRCUMSTANCE OF SUPERIOR STRENGTH ALLEGED IN THE INFORMATION WAS NOT DULY PROVED DURING THE TRIAL. V ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE VICTIM, THE TRIAL COURT ERRED IN FINDING THAT THE COMMISSION OF THE OFFENSE WAS CHARACTERIZED BY DECEIT. VI ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE VICTIM, THE TRIAL COURT ERRED IN FINDING THAT CONSPIRACY EXISTED AMONG APPELLANT MOLLEDA AND HIS CO-ACCUSED. VII ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE VICTIM, THE TRIAL COURT ERRED IN NOT FINDING THAT ACCUSED WAS ENTITLED TO THE MITIGATING CIRCUMSTANCE OF INTOXICATION. VIII THE TRIAL COURT ERRED IN ADMITTING ACCUSED'S SUPPOSE I CONFESSION SINCE, DURING THE INTERROGATION, HE WAS NOT DULY AFFORDED THE RIGHT TO COUNSEL AND OTHER CONSTITUTIONAL RIGHTS GUARANTEED TO SUSPECTS. IX THE TRIAL COURT ERRED IN CONSIDERING AGAINST MOLLEDA EVIDENCE COMPRISING THE FRUITS OF AN ILLEGAL ARREST WITHOUT A WARRANT. X THE TRIAL COURT ERRED IN NOT FINDING THAT THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED WAS EXTORTED BY FORCE, VIOLENCE AND INTIMIDATION.

XI THE TRIAL COURT ERRED IN FINDING MOLLEDA GUILTY BEYOND A REASONABLE DOUBT. Evelyn Duave y Ortega alias Baby China raises the following Assignments of Errors: I THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF RAMON CHING IMPLICATING ACCUSED-APPELLANT EVELYN DUAVE ON THE GROUND THAT SAID TESTIMONY IS INCREDIBLE AND CONTRARY TO THE NATURAL COURSE OF THINGS. II THE LOWER COURT ERRED IN FINDING THAT ACCUSED- APPELLANT EVELYN DUAVE HAD NO EXCUSE IN HER FLIGHT TO OLONGAPO CITY. III THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF ACCUSED APPELLANTS. IV THE TRIAL COURT ERRED IN CONVICTING ACCUSED APPELLANTS OF THE CRIME OF MURDER ON THE GROUND THAT THE ALLEGED QUALIFYING CIRCUMSTANCE OF USE OF SUPREME (SIC) STRENGTH WAS NOT PROVED BEYOND REASONABLE DOUBT. V THE LOWER COURT ERRED IN FINDING THAT THERE WAS A QUALIFYING CIRCUMSTANCE OF DECEIT IN THE INSTANT CASE. VI THE LOWER COURT ERRED IN GIVING CREDENCE TO THE STATEMENTS MARKED EXHS. "G", "H" AND "I" BECAUSE THEY WERE OBTAINED THROUGH FORCE AND MALTREATMENT AND MOREOVER, THEY ARE INADMISSIBLE AGAINST ACCUSEDAPPELLANT EVELYN DUAVE. VII THE LOWER COURT DENIED THE ACCUSED-APPELLANTS DUE PROCESS OF LAW WHEN IT GAVE THEM ONLY ONE DAY TO PREPARE THEIR DEFENSE. Reynaldo Nicolas alias Boy Miroy and Virgilio Baluyot alias Boy Bakal raise the following Assignments of Errors:

I IN GIVING CREDENCE TO THE STATEMENT OF APPELLANT MARKED EXHIBITS "G", "H" AND "I", ALLEGED EXTRA-JUDICIAL CONFESSIONS OF ACCUSED ROBERTO MOLLEDA, VIRGILIO BALUYOT AND REYNALDO NICOLAS, RESPECTIVELY, DURING THE INVESTIGATION OF THE SAID ACCUSED IN PRECINCT 9 OF THE MANILA POLICE DEPARTMENT. II IN NOT GIVING CREDENCE ON THE TESTIMONIES OF THE HEREIN APPELLANTS. III IN FINDING THAT THE FOUR ACCUSED CONSPIRED AND CONFEDERATED WITH ONE ANOTHER IN KILLING THE VICTIM. IV IN FINDING THAT THERE WERE QUALIFYING CIRCUMSTANCES OF USE OF SUPERIOR STRENGTH AND DECEIT IN THE INSTANT CASE. V IN DENYING THE ACCUSED-APPELLANT DUE PROCESS OF LAW. For the purpose of this mandatory review and in the interest of logical and systematic treatment of the foregoing several assignments of errors raised by the four accused-appellants in their separate briefs, the errors alleged and relied upon by them in their respective briefs for the reversal of the trial court's findings and sentence which are similar and therefore duplicate each other in many respects may be collated and discussed logically as follow. Accusedappellants, in synthesis, claim that the Circuit Criminal Court erred (1) In according credence to the testimony of prosecution witness, Ramon Ching, (Error I, Duave); (2) In admitting the confessions of accused-appellants Molleda, Nicolas and Baluyot (Exhibits "G", "H" and "I") (Errors I, VIII, IX & X, Molleda; Error I, Nicolas and Baluyot); (3) In according credence to the extra-judicial confessions of accused Molleda, Nicolas and Baluyot and in holding that the same are admissible against accused-appellant Duave (Error VI, Duave); (4) In rejecting accused-appellant's defenses (Error III, Molleda; Error III, Duave; Error II, Nicolas and Baluyot); (5) In not according credence to the testimonies of accused-appellants (Error III, Duave; Error II, Nicolas and Baluyot): (6) In appreciating the qualifying circumstance of superior strength (Error IV, Molleda; Error IV, Duave; Error IV, Nicolas and Baluyot);

(7) In appreciating the aggravating circumstances of "deceit" (Error V, Molleda; Error V, Duave; Error IV, Nicolas and Baluyot); (8) In finding that conspiracy existed among the appellants (Error VI, Molleda; Error III, Nicolas and Baluyot); (9) In taking their trip to Olongapo as proof of guilt (Error II, Molleda; Error II, Duave); and,

(10) In denying the accused-appellants due process of law when it gave them only one day to prepare for their defense (Error VII, Duave; Error V, Nicolas and Baluyot). Now, to consider and resolve the foregoing, seriatim. 1. That the testimony of prosecution witness Ramon Ching should not have been accorded belief. It is urged as the main thrust of this assigned error by appellant Evelyn Duave that the account of the incident by prosecution witness Ramon Ching should not have been accorded belief because ... "it is very unnatural for a woman to be standing amidst the mauling that "... it is hard to imagine a girl who would have the nerve to stand a gruesome sight"; and that it was impossible for the lone prosecution witness Ramon Ching to have observed, as he testified, that she hit the victim with a belt, in the manner he demonstrated in Court (Brief, Duave, pp. 14-18; Rollo, p. 194). We find this assigned error without merit. In the first place, the findings and conclusions of the trial court on the credibility of a witness are matters that are left mainly to its discretion because the trial court observed the demeanor and the manner of his testimony. And, as a matter of established jurisprudence, the findings of the trial court on the credibility of a witness are not disturbed on appeal unless it is shown that it failed to consider certain facts and circumstances which would change the same. The trial court held the eye and ear-witness account of witness Ching as credible because he "... testified in a natural, systematic, straight-forward and logical manner with marked fluency and ease ...", that while he and the victim (Alfredo Bocaling )were at the intersection of Suter and Tejeron streets, Manila, he saw Bocaling being mauled and ganged upon (pinagtutulungan) by all the herein accused including appellant Evelyn Duave alias Baby China. The bare, self-serving assertion of appellant Duave, which is a mere generalized hypotheses, i.e., that as a woman she could not have committed the acts imputed to her, cannot prevail over the positive and categorical testimony of Ching on a matter of fact, which was able to withstand the cross-examination of appellant's counsel. In addition, as the trial court observed, appellant Duave could not point to any evil or bad motive on the part of Ching to testify in the manner that he did, positively naming the herein accused Duave as having taken an active part in mauling the victim by hitting him with the buckle of a belt. In a clash between a fact, as testified to by a credible witness, and a self-serving hypotheses, as alleged by the accused herself, the trial court cannot be faulted for electing to accord credence to the former and disbelieving the latter. This is specially so where, as in the case at bar, the eye-witness account is corroborated by other evidence on record, consisting of confessions of her co-conspirators and now, co-accused [Exh. "G" (Molleda), "H" (Baluyot) and "I" (Nicolas)]. 2. That the extra-judicial confessions of accused Molleda, Nicolas and Baluyot are not admissible in evidence. It is urged in connection with the second common error assigned, that, as the case involves a capital offense, there was need for the prosecution to call on everyone

who witnessed the execution of Exhibit "G", the extra-judicial confession of accused Molleda (Error 1, Molleda); that accused Molleda was not afforded the right to counsel during the interrogation (Error VII, Molleda); and that his extra-judicial confession should not have been taken into account, since the same is the result of an illegal arrest without a warrant (Error IX, Molleda). It is also urged that the extra-judicial statements of Baluyot and Nicolas (Exhibits "H" and "I", respectively) were obtained thru maltreatment, torture and intimidation and should have been rejected (Error I, Baluyot and Nicolas). In brief, appellants Baluyot and Nicolas argue that their extra-judicial confessions (Exhibits "H" and "I") were extracted thru intimidation and maltreatment; and appellant Molleda in turn claims that the offense charged being capital in nature, the prosecution should have called on everyone who witnessed the execution of Exhibit "G" to testify thereon; that he was not afforded the services of counsel in the course of his investigation; and, that, having been allegedly illegally arrested, his statement is inadmissible in evidence. Appellants Nicolas' and Baluyot's claim that the trial court should have rejected their extrajudicial confessions, to wit, Exhibit "H" and Exhibit "I" on the ground that these were not voluntarily given but were obtained by force, violence and coercion, is bereft of any evidentiary support apart from their own testimonies to this effect. The records also show that they never complained to anyone that they were maltreated or tortured in the course of their investigations. Upon the other hand, the trial court's finding that the statements including that of appellant Molleda (Exh. "G") were voluntarily executed, is premised on the facts that the accused were investigated in the open and before several witnesses; that they were thereafter brought in the presence of the Inquest Fiscal before whom they signed and affirmed to the truth of their statements; and that the same contain details which could have been given only by the accused themselves. The trial court, therefore as maintained by the Solicitor General in his reply briefs correctly concluded that the same were voluntarily given and consequently are admissible in evidence. 1 Since no evidence was adduced by the appellants to support their claim that the confessions were extracted thru third degree, i.e., force and intimidation, apart from their self-serving assertions, there was clearly no need on the part of the prosecution to present all the persons who witnessed the investigation to testify on the voluntary character of the confessions. Molleda's claim that he is entitled to counsel is without merit. The right to be represented by counsel at custodial investigation became effective and enforceable only after the enactment of the Constitution on January 17, 1973. 2 The investigations of the accused-appellants having taken place much earlier or in April 1971, the right to counsel was not applicable in their case. 3 Molleda's claim that his statement is inadmissible in evidence because it is the fruit of an illegal arrest is also not well-taken. Accused-appellants were apprehended by the Anti-Hoodlum Unit of the Manila Police Department while in hiding in Olongapo City on April 5, 1971, pursuant to an alarm flashed after they were Identified and verified to be the perpetrators of the killing of Alfredo Bocaling on the evening of January 7, 1971. Upon being discovered in their hideouts in Olongapo, they were invited by the Anti-Hoodlum Unit for investigation on well-grounded suspicions for their part in the killing. The justification for arrests on reasonable suspicion that a person has committed an offense has been stated thus One of the duties of the policeman is to arrest lawbreakers in order to place them at the disposal of the judicial or executive authorities upon whom devolves the duty to investigate the act

constituting the violation or to prosecute and secure the punishment thereof. One means of conducting to these ends is Identification of the alleged criminal or lawbreaker, who should be arrested by the police for the purpose of such investigation. Thus, the policeman who in compliance with the orders of his chief, arrests a suspected criminal for the purpose of Identification is not guilty of arbitrary detention. He has acted in the performance of his duty. It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. 'The legality of the detention does not depend upon the actual commission of the crime but upon the nature of the deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. 4 In point of fact, they were transported from Olongapo City to Precinct 9 at Sta. Ana of the Manila Police Department, which had police jurisdiction over the place where the offense was committed. In the course of their investigations, all the three accused in the presence of several witnesses including their co-accused, Evelyn Duave who, it should be noted, did not give any statement confessed freely and voluntarily to the commission of the offense in Exhibits "G", "H" and "I". Their statements, as observed by the trial court, are rich in details which jibe with and corroborate each other, and thus show the earmarks of a free and voluntary statement. It is apparent that all the three accused wanted to make a clean breast of their respective participation in the commission of the offense, which they perpetrated on the evening of January 7, 1971, or three months earlier. Their claim now that they have been illegally arrested is rather late in the day and is clearly an after-thought, a transparent defense gimmick, to delay the trial and postpone their punishment. 3. That the extra-judicial confessions, Exhibits "G", "H" and "I" should not have been accorded belief and credence and that the same are not admissible as against accused Duave alias Baby China. It is urged in connection with the third common error that the trial court erred in according credence to the extra-judicial confessions. This, obviously is clearly without merit. The confessions having been voluntary and freely given are admissible in evidence. That they are rich in details which only the accused themselves could have given to the police rendered each and every statement not merely competent but also relevant and credible. Finally, the statements are corroborated by other evidence on record. With respect to the claim that the same is not admissible against accused Evelyn Duave, the general rule is "... that an extra-judicial confession is admissible against the maker; it is incompetent evidence against his co-accused, with respect to whom it is hearsay." 5 This general rule is not without its exceptions. 6 Thus, it is now settled that "extra-judicial confessions independently made without collusion which are Identical with each other in their essential details and are corroborated by other evidence on record are admissible, as circumstantial evidence, against the person implicated to show the probability of the latter's actual Participation in the commission of the crime." 7 This doctrine was upheld by this Court as early as November 5, 1915 in U.S. v. Perez, 32 Phil. 163, 173, and has been repeatedly acknowledged and applied by this Court in several cases, e.g., People v. Lumahong, L-6357, May 7, 1954 and so forth. 8 In addition, the records show that accused-appellant Evelyn Duave alias Baby China was present personally when their statements were taken from each of the affiants, Molleda, Baluyot and Nicolas [Exhibit "G", Molleda, Question and Answer (Q & A) No. 08; Exhibit "H", Nicolas, Q & A No. 06; and Exhibit "I", Baluyot, Q & A, No. 11]. In each instance, the affiants pointed to Duave alias Baby China as a participant in the killing of the victim (Id., Molleda, Q & A No. 09;

Id., Nicolas, Q & A No. 09; and Id., Baluyot, Q & A No. 06). Appellant Duave, thus acquiesced to these statements, because she did not contradict the same during the investigation. The same are, therefore, admissible in evidence even as against her. 9 4. That the lower court should not have rejected accused-appellants' defenses. It is urged in this fourth common error that the trial court erred in rejecting appellant's defenses. Appellant Molleda defended on the ground of alibi. But, as the trial court observed, the defense of alibi is a weak defense not only because of the facility with which it is fabricated but also because it is not uncommon for witnesses to get confused with the dates. In this case, not only did Molleda not present any witness to support his alibi, the records also show that he was implicated by his coaccused Nicolas and Baluyot in their extra-judicial confessions. Baluyot, Nicolas and Duave, in turn, admitted their presence at the scene of the crime at Suter street on the fatal night of January 7, 1971. They denied, however, having inflicting any injury on the victim. Their testimonies, however, as the trial court observed " ... lacked sincerity and candidness " and, therefore, cannot prevail over the positive Identification of eye-and earwitness Ramon Ching. This defense was also properly discredited in the face of Baluyot's and Nicolas' confessions of their participation in their extra-judicial confessions, where they implicated accused Duave who not only took an active and direct part in assaulting Bocaling, but urged them to do so as well. [Exh. "G" (Molleda), Q & A No. 09]. Exh. "H" (Baluyot), Q & A No. 06; Exh. "I", Q & A No. 091. This assignment of error is clearly without merit. 5. That the trial court should have accorded credence to the testimonies of the accusedappellants. Appellant Duave urges that the theory of the prosecution that because she was raped and robbed by Ching and Bocaling, she and Melinda lured and invited the two to join them from the Good Earth Emporium to Suter street, is improbable because their meeting was admittedly accidental; that, as the accused-appellants explained, the immediate cause of the incident in the evening of January 7 was when Ching molested Melinda by placing his hand over her shoulder, which Nicolas resented. Finally, she claims that the appellants testified clearly, logically and in a straight-forward manner (Brief, Duave, p. 19). Upon the other hand, appellants Nicolas and Baluyot urge in this regard, that the prosecution presented no evidence to support its theory that Duave was raped and robbed by Ching and Bocaling, except Exhs. "G", "H" and "I", and that the incident was triggered when Ching molested Melinda. (Brief, Nicolas and Baluyot, pp. 12-13). The rule is well-settled that the issue of credibility is left to the discretion of the trial judge who has had the opportunity to observe the conduct and demeanor of the witnesses during the trial. Time and again, this Court has held that it will not alter the findings of the trial court on credibility of witnesses principally because they are in a better position to assess the same than the appellate court. Appellants herein have not shown any special or compelling reason why this rule should not be observed in their case. The trial court accorded credence to the theory that Bocaling and Ching were lured and invited by accused-appellant Duave alias Baby China and Melinda to join them from the Good Earth Emporium to Suter street; that Duave and Melinda thereafter contacted their co-accused Molleda alias Tikboy, Nicolas alias Boy Miroy and Baluyot alias Boy Bakal all Sigue-Sigue Sputnik gang members whom they informed to the effect that the two Ching and Bocaling previously raped and robbed Baby China. That thereafter and as their intended victims, Bocaling and Ching, were on their way home, all the accused with obvious concert of purpose taking advantage of superiority and by means of craft, killed Bocaling and nearly succeeded to kill Ching, who was barely able to escape from their clutches.

The trial court based its findings as to the motive behind the killing upon the confessions of the accused themselves (Exhibits "G", "H" and "I"). It should be noted that these confessions which were voluntarily and freely given and thereafter subscribed before the Inquest Fiscal of the City of Manila, immediately after they were apprehended at their hiding place in Olongapo were made when they had no opportunity to contrive their defense. This assignment of error, therefore, which is a mere statement of a self-serving assertion on their part, without any supporting evidence, is clearly without merit. The efforts during the trial on the part of the accused to show that the incident was triggered when Ching allegedly molested Melinda by placing his hand over her shoulder which action was allegedly resented by Nicolas, her common-law-husband, are clearly an after-thought which they have contrived as part of their defense to delay the trial and their punishment for an offense to which they had earlier confessed. 6. It is urged in connection with the sixth common error, that the trial court should not have appreciated the qualifying circumstance of superior strength. The records, however, do not show any evidence adduced on the part of the accused to discredit the testimony of eye-and ear-witness Ramon Ching that they ganged upon their hapless victim, Alfredo Bocaling, after he tripped and fell. Ching testified that when Bocaling fell after he tripped, the four accused, with clear and obvious concert of purpose ganged up (pinagtulungan) the fallen victim thru a series of intermittent blows with belt, bottles and pieces of wood and a bladed weapon until he succumbed to their merciless assault. But the evidence that they ganged upon their hapless and defenseless victim did not come from Ching alone it is provided by their own statements, wherein they described in detail the gruesome manner in which they subjected Bocaling to their vicious attack until he died. The concerted action of the above-named accused, three of whom Molleda, Baluyot and Nicolas, are known Sigue-Sigue Sputnik members to the urgings of accused Baby China fully justified the appreciation of the employment of superior strength upon a hapless and defenseless victim. 10 7. It is urged that the lower court erred in appreciating the aggravating circumstance of "deceit" (craft). It is argued, instead, that the attack was spontaneous and without any preconceived design on the part of all the accused, including Evelyn Duave alias Baby China. The trial court appreciated the generic aggravating circumstance of "deceit" (sic, should be craft) upon its finding-which is based upon the statements of Molleda and Baluyot (Exhibits "G" and "H", respectively) that all the accused ... with murder in their hearts pretended to accompany the victim in a friendly manner in going home and in order to lure the victim into a false sense of security and making him unmindful of the tragedy that will befall him, one of the accused even "placed his hands on the shoulder of the victim while walking ...", that, as a matter of fact, "there was deceit right from the start when Duave invited the victim and Ching to Suter ... under the pretext of returning a radio"; and upon arrival thereat, the victim and Ching were entertained in a drinking spree in the course of which Duave left and surreptitiously contacted her co-accused and informed them that the persons "who raped and robbed" her were in the house drinking. All the while the victim and Ching did not know of the evil plot to liquidate them. These findings find support in the testimony of Ching, and are affirmed by the confessions of the three (3) accused-Molleda, Nicolas and Baluyot. The bare assertions of the appellants, to the effect that the incident which led to the killing of the victim was Ramon Ching's alleged attention to Melinda that aroused the jealousy of her common-law-husband Nicolas - which they did not state in their confessions, cannot prevail over the lower court's findings which are based on substantial evidence on record. This error is, therefore, clearly without merit.

8. It is urged that the trial court erred in finding that conspiracy existed among the appellants. In support, it is argued that according to the statement of appellant Molleda, he and his co-accused Nicolas and Baluyot had been drinking at the Bagong Bituin Restaurant at J. Rizal, Makati, up to 10:00 o'clock in the evening of January 7, 1971 and they must have been drank when they were met by Baby China and Melinda; that there is no direct proof available to show that he and his co-accused conspired, since conspiracy must be consciously and deliberately entered into by sober persons. That appellants conspired in the commission of the offense finds support in the testimony of Ching corroborated by the appellants' own statements that they attacked their victim, Alfredo Bocaling, in a manner indicating community and concert of purpose by inflicting upon him several wounds, as soon as he fell to the ground, with each of the conspirators doing his part to achieve their common objective to avenge Baby China (Exhs. "G", "H" and "I", Q & A Nos. 09, 06 and 09, respectively). Conspiracy arose the very moment they agreed to attack their victim and it is clear that the assault was not the lone and solitary act of one but of all the accused. Direct proof of conspiracy is not necessary it may be inferred from the circumstances surrounding the commission of the offense. 11 9. It is urged in this connection that the trial court erred in taking the accused's trip to Olongapo as proof of guilt. It is argued specifically in the case of appellant Molleda that he had been living and working in Olongapo since 1967 and that he was in Olongapo all the time. With respect to appellant Duave, it is argued that she went to Olongapo because she joined her sister and Melinda, and, as a friend of Melinda, she was expected to accompany her to Olongapo City where Melinda's common-law-husband, Nicolas, had gone. The trial court did not err in considering the appellants' hasty and clandestine refuge to Olongapo after the killing as a circumstantial evidence indicating guilt, on the biblical adage that "... the wicked flee when no man pursueth, but the righteous are as bold as the lion." It was fully justified in doing so because it is established by the evidence on record that they were the ones who assaulted the victim. That they fled from the scene of the crime is a form of admission by conduct which gives rise to the inference that they committed it. 12 Baluyot's explanation that he went to Olongapo because they received news that masked men were coming back lends additional support for the inference. Finally, Nicolas' statement that Baby China gave him her ventilador (electric fan) to be pawned (isinanla) with one Alicia Nicolas, his aunt, of Sta. Ana, Pateros, to finance their trip to Olongapo leave no room for doubt that they fled to said City [Exh. "I" (Nicolas), Q & A No. 14; See p. 14, supra]. 10. That the accused were denied due process. It is urged, finally, that the accused were denied due process of law when they were given only one day to prepare their defense. It is argued that after the prosecution rested its case on May 1971, the trial court ordered the accused-appellants to present their evidence on the following day; that they have a right to know the accusation against them, that it was only on May 26 when they knew of the nature of the accusation; and, that the one day allowed them to prepare for the defense is tantamount to denial of due process. A review of the records, on the other hand, shows that the trial court gave full consideration to the rights of the accused-appellants to be assisted by counsel; to be informed of the nature and the charge against them; and to be confronted by the witnesses who were cross-examined by their counsel. If appellants believed that one day was not sufficient for them to prepare for their

defense, they should have moved for a longer period within which to present their evidence, which they did not. In resume, the qualitative and quantitative preponderance of the evidence adduced by the prosecution-consisting of the eye-and ear-witness account of the killing by Ramon Ching who was present at the scene of the killing, and, in fact, barely escaped death by the skin of his teeth; the extra-judicial confessions of Roberto Molleda alias Tikboy, Exh. "G", Virgilio Baluyot alias Boy Bakal, Exh. "H" and Reynaldo Nicolas alias Boy Miroy, Exh. "I", which taken separately and without collusion corroborated each other in material respects, and implicated accused Duave alias Baby China; the circumstantial evidence of flight; and the corroboration and congruence of the evidence as to the injuries inflicted upon the victim Bocaling, as revealed in the autopsy report considered, viz a viz, the self-serving and uncorroborated testimonies of each of the accused, which are not supported by any other evidence on record, but which in an important aspect contradict their own statements e.g., that the incident was triggered by Ching's placing of his hand on Melinda's shoulders and the resultant jealousy of Nicolas alias Boy Miroy, who by the way is the common-law-husband of Melinda and not a legitimate spouse, which was not even mentioned in accused' statements and is, therefore, an obvious defense tactic to camouflage the conspiracy and convert the nature of the offense to homicide merely fully justify the finding of guilt of herein appellants beyond reasonable doubt. We have taken note that the Solicitor General in the People's briefs, filed by way of answer to the three briefs submitted by the accused-appellants, took the position that the assignments of errors which assail the trial court's findings of the presence of "abuse of superior strength" as qualifying and "craft" as generic aggravating circumstances in the commission of the crime, should be favorably considered and/or appears to have merit (Reply to the Brief of Nicolas and Baluyot, p. 13; Reply to the Brief of Molleda, p. 10; Reply to the Brief of Duave, p. 12). In justifying his recommendation in this respect, the Solicitor General argues that (1) Melinda and Baby China were picked up by the victim and Ching from the Good Earth Emporium; (2) that later, while Ramon Ching and Alfredo Bocaling were walking towards Herran street on their way home, Ching held Melinda on the shoulder, which action irked and angered Reynaldo Nicolas, her common-law-husband; that Nicolas boxed prosecution witness Ching in the nape; that the hot-blooded and spontaneous attack upon Bocaling and Ching by the appellants is shown by the fact that the weapons used were belts, bottles and pieces of wood; that the only evidence concerning the presence and use of bladed instrument was given by accused Duave, not the prosecution, who testified that "... Bocaling drew a knife ... then I saw the bladed instrument with Roberto Molleda"; (3) that the eternal human triangle represented by Melinda as the common point of interest between Ching and Nicolas spurred the sudden and spontaneous attack in the heat of jealousy and injured pride, and, (4) that, therefore, the accused did not deliberately seek or take advantage of superiority of numbers or deceit (craft) to commit the crime against Bocaling. As a result, the Solicitor General submits that the killing falls under Art. 249 of the Revised Penal Code on homicide, rather than murder, and that the penalty should not be imposed in the maximum degree. We are not persuaded to give our favorable consideration to these conclusions drawn from a consideration of the evidence on record; nor do We concur in the recommendations as to the nature of the offense committed and the penalty to be imposed. The findings of fact submitted by the Solicitor General are not supported by the evidence on record and the conclusions therefrom are, therefore, unjustified. The pivotal and basic premises upon which the Solicitor General bases his view of the case are that the killing was a spur-of-the-moment incident arising from the alleged act of Ching in placing his hand on the shoulder of Melinda which in turn

spurred the jealousy of Nicolas, her common-law-husband; that close upon this provocative act of Ching, the four accused engaged the two, Bocaling and Ching, in a fight, which resulted in the death of Bocaling; that the killing was thus a result of a chance encounter with no foreknowledge on the part of the appellants, who acted as anybody would in a melee. From these factual premises, the People's brief concludes that the offense is merely homicide, not murder, and the qualifying and aggravating circumstances of superior strength and "deceit" (craft), which the trial court appreciated, should be overruled. We cannot agree. In the over-all context of the evidence on record - consisting mainly of the accused's own confessions and the testimony of Ramon Ching - the conclusion is inescapable that the assault on Bocaling and Ching, which resulted in the death of the former, was, as the trial court found it to be, qualified by superior strength and aggravated by craft. The confessions of the accused taken at a time when they could not have contrived their defense leave no room for doubt that the two, Ching and Bocaling, were lured by Duave and Melinda from the Good Earth Emporium; that once they were in a house at Suter street, Duave and Melinda lost no time in contacting and then pointing to the three co-accused, Molleda, Baluyot and Nicolas, three hardened members of the Sigue-Sigue Sputnik gang, Bocaling and Ching as having allegedly raped and robbed Duave, without their awareness, that the three who were told that the two had previously robbed and raped Duave contrived to execute their scheme to kill them, and that in the process, as the lower court observed, they managed thru craft to make them unaware of their impending fate. The appellants' claim that the incident was triggered by the indiscreet act of Ching is very obviously an after-thought, a clear but transparent attempt to show that the killing was not the result of a conspiracy among them. But the fact that none of the accused, not even Nicolas, the common-law-husband of Melinda revealed this to the investigators, shows the utter falsity of this defense. Furthermore, all the three without exception, specifically mentioned the role of Duave and one of them even said that she gave the orders to kill as long as Bocaling will not return her money [Exh. "G" (Molleda), Q & A No. 09; See pp. 9-10, supra]. The concerted action among all the accused, the manner in which they pounced and ganged upon Bocaling and the merciless assault they perpetrated upon his person when he fell down after the initial blow leave no room for doubt that they did in fact avail of their superior strength to snuff the life of their victim, while the manner in which they perpetrated this act by first making them believe that no harm will befall them and keep them off-guard, clearly underlined the craft by which they executed their nefarious scheme. Accordingly, the trial court committed no error in finding all of the accused guilty of the crime of murder qualified by taking advantage of superior strength and attended by the generic aggravating circumstance of craft with no mitigating circumstance to offset the same. Hence, the correct penalty for the crime committed is death pursuant to Art. 248, in relation to Art. 64 (3) of the Revised Penal Code. However, after the deliberation of the Court en banc, only eight (8) Justices 13 voted to affirm the judgment of conviction with respect to defendants Roberto Molleda, Virgilio Baluyot and Reynaldo Nicolas, and only seven (7) 14 with respect to defendant Evelyn Duave. It results, therefore, that with respect to defendants Roberto Molleda, Virgilio Baluyot and Reynaldo Nicolas, the penalty of reclusion perpetua is to be imposed. As regards defendant Evelyn Duave, only seven (7) Justices concurred in holding her guilty. Thus, pursuant to Section 3, Rule 125 of the Revised Rules of Court, or for lack of the requisite eight votes, the judgment of conviction as regards defendant Evelyn Duave alias "Baby China" should be reversed and said defendant should be acquitted.

WHEREFORE, the decision under review is hereby AFFIRMED as regards defendants Roberto Molleda, Virgilio Baluyot and Reynaldo Nicolas, with the only modification that the penalty of death imposed upon them is reduced to reclusion perpetua; but REVERSED as regards defendant Evelyn Duave as to whom only seven (7) Justices concurred in the finding of guilty and is, therefore, acquitted of the crime charged. SO ORDERED. Castro, C.J., Makasiar, Aquino, Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Fernando, J., took no part.

SAYO VS CHIEF OF POLICE G.R. No. L-2128 May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners, vs. THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF MANILA, respondents. Enrique Q. Jabile for petitioners. Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Naawa and D. Guinto Lazaro for respondents. FERIA, J.: Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948, when the petition for habeas corpus filed with this Court was heard, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them an information with the proper courts justice. This case has not been decided before this time because there was not a sufficient number of Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting in division here in Baguio for deliberation and decision. We have not until now an official information as to the action taken by the office of the city fiscal on the complaint filed by the Dumlao against the petitioners. But whatever night have been the action taken by said office, if there was any, we have to decide this case in order to lay down a ruling on the question involved herein for the information and guidance in the future of the officers concerned. The principal question to be determined in the present case in order to decide whether or not the petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of manila a judicial authority within the meaning of the provisions of article 125 of the Revised Penal Code? Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours." Taking into consideration the history of the provisions of the above quoted article, the precept of our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article, mean the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, "the Supreme Court and such inferior courts as may be established by law". (Section 1, Article VIII of the Constitution.) Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code formerly in force of these Islands, which penalized a public officer other than a judicial officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to

deliver such person to the judicial authority within twenty four hours after his arrest." There was no doubt that a judicial authority therein referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the temporary commitment or detention of the person arrested; and not the city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which complements said section 202, of the same Code provided that "the penalty of suspension in its minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer who, within the period prescribed by the provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest or to commit such prisoner formally by written order containing a statement of the grounds upon which the same is based." Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the Revised Penal Code the import of said words judicial authority or officer can not be construed as having been modified by the mere omission of said provision in the Revised Penal Code. Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or confinement] shall issue but upon probable cause, to be determined by the judge after the examination under oath or affirmation of the complaint and the witness he may produce." Under this constitutional precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the complainant and his witness. And the judicial authority to whom the person arrested by a public officers must be surrendered can not be any other but court or judge who alone is authorized to issue a warrant of commitment or provisional detention of the person arrested pending the trial of the case against the latter. Without such warrant of commitment, the detention of the person arrested for than six hours would be illegal and in violation of our Constitution. Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the duty of an officer after arrest without warrant, provides that "a person making arrest for legal ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal Code, take the person arrested to the proper court or judge for such action for they may deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the Court, he shall be informed of the complaint or information filed against him. He shall also informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him. And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court. According to the provision of said section, "a writ of habeas corpus shall extend any person to all cases of illegal confinement or detention by which any person is illegally deprived of his liberty"; and "if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a judgement or order of a court of record, and that the court or judge had jurisdiction to issue the process, render judgment, or make the order, the writ shall not be allowed. "Which a contrario sensu means that, otherwise, the writ shall be allowed and the person detained shall be released. The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant

of arrest or of commitment or temporary confinement of a person surrendered to legalize the detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city of fiscal of Manila makes is not the preliminary investigation proper provided for in section 11, Rule 108, above quoted, to which all person charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since defendant charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary investigation. The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2, Rule 108, is the investigation referred to in the proceeding paragraph. Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with municipal court or the Court of First Instance of Manila, because as above stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused. When a person is arrested without warrant in cases permitted bylaw, the officer or person making the arrest should, as abovestated, without unnecessary delay take or surrender the person arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of section 13, Rule 108. In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the officer or person making the arrest without warrant shall surrender or take the person arrested to the city fiscal, and the latter shall make the investigation above mentioned and file, if proper, the corresponding information within the time prescribed by section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for the temporary detention of the accused. And the city fiscal or his assistants shall make the investigation forthwith, unless it is materially impossible for them to do so, because the testimony of the person or officer making the arrest without warrant is in such cases ready and available, and shall, immediately after the investigation, either release the person arrested or file the corresponding information. If the city fiscal has any doubt as to the probability of the defendant having committed the offense charged, or is not ready to file the information on the strength of the testimony or evidence presented, he should release and not detain the person

arrested for a longer period than that prescribed in the Penal Code, without prejudice to making or continuing the investigation and filing afterwards the proper information against him with the court, in order to obtain or secure a warrant of his arrest. Of course, for the purpose of determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised Penal Code, the means of communication as well as the hour of arrested and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration. To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code, would be to authorize the detention of a person arrested without warrant for a period longer than that permitted by law without any process issued by a court of competent jurisdiction. The city fiscal, may not, after due investigation, find sufficient ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally detained for days or weeks without any process issued by a court or judge. A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and other political subdivisions. If the City Fiscal has no authority, and he has not, to order the arrest even if he finds, after due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other persons even though, after investigation, he becomes convinced that the accused is guilty of the offense charged. In view of all the foregoing, without making any pronouncement as to the responsibility of the officers who intervened in the detention of the petitioners, for the policeman Dumlao may have acted in good faith, in the absence of a clear cut ruling on the matter in believing that he had complied with the mandate of article 125 by delivering the petitioners within six hours to the office of the city fiscal, and the latter might have ignored the fact that the petitioners were being actually detained when the said policeman filed a complaint against them with the city fiscal, we hold that the petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now detained by virtue of a process issued by a competent court of justice. So ordered. Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.

MALACAT VS CA EN BANC [G.R. No. 123595. December 12, 1997] SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. DECISION DAVIDE, JR., J.: In an Information[1] filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866,[2] as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1, and A2,[4] while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner.[5] At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with [t]heir eyes moving very fast.[6] Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioners front waist line.[7] Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander.[8] On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when

Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.[9] Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapios advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit for examination.[11] On cross-examination, Serapio admitted that he took petitioners confession knowing it was inadmissible in evidence.[12] Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he [f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present, and concluded that the grenade was [l]ive and capable of exploding. On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991.[13] Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This officer then inserted the muzzle of his gun into petitioners mouth and said, [y]ou are the one who shot me. Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented.[14] The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information.[15] Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been premature.[16] The RTC emphasized that Yu and his companions were [c]onfronted with an emergency, in which the delay necessary to

obtain a warrant, threatens the destruction of evidence[17] and the officers [h]ad to act in haste, as petitioner and his companions were acting suspiciously, considering the time, place and reported cases of bombing. Further, petitioners group suddenly ran away in different directions as they saw the arresting officers approach, thus [i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.[18] The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish petitioners guilt beyond reasonable doubt. In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs.[21] In his Appellants Brief [22] filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS ARREST. 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSEDAPPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto.[24] In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was planted by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioners possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was attempting to commit an offense, thus:

We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote,[26] which petitioner relied upon, was inapplicable in light of [c]rucial differences, to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him. Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them. Finally, petitioner

points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section 5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30] The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioners guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an X mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was

that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes moving very fast. Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same.[31] The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped *** A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop and frisk."[35] In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure of the grenade from the accused [as] an appropriate incident to his arrest, hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search.[36] In this instance, the law requires that there first be a lawful arrest before a search can be made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.[38] Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment ***[39] Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"[40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and

frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.[41] Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, here are at least three (3) reasons why the stop-and-frisk was invalid: First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination: Q A Q A And what were they doing? They were merely standing. You are sure of that? Yes, sir.

Q And when you saw them standing, there were nothing or they did not create any commotion? A Q A None, sir. Neither did you see them create commotion? None, sir.[42]

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.[43] What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de oficio. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Martinez, JJ., concur. Panganiban, J., please see separate opinion.

PEOPLE VS MACALABA FIRST DIVISION [G.R. Nos. 146284-86. January 20, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ABDUL MACALABA y DIGAYON, appellant. DECISION DAVIDE, JR., C.J.: Appellant Abdul Macalaba y Digayon (hereafter ABDUL) was charged before the Regional Trial Court of San Pedro, Laguna, with violations of the Presidential Decree No. 1866[1]; Article 168 of the Revised Penal Code[2]; and Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, in Criminal Cases Nos. 1236, 1237 and 1238, respectively. The accusatory portions of the informations in these cases read as follows: Criminal Case No. 1236 That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused without the required permit/license from the proper authorities, did then and there willfully, unlawfully, and feloniously have in his possession, custody and control one (1) caliber .45 pistol with Serial No. 909904, and one (1) magazine with five (5) live ammunition thereof. CONTRARY TO LAW.[3] Criminal Case No. 1237 That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control two (2) ONE THOUSAND PESOS bill with Serial Numbers BG 021165 and BG 995998, knowing the same to be forged or otherwise falsified with the manifest intention of using such falsified or forged instruments. CONTRARY TO LAW.[4] Criminal Case No. 1238 That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, the said accused without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) self-sealing transparent plastic bag of methamphetamine hydrochloride shabu weighing 226.67 grams (3 medium sized transparent plastic bags and 1 big heat-sealed transparent plastic bag). CONTRARY TO LAW.[5] The three cases were consolidated and raffled to Branch 31 of said court. Upon his arraignment, ABDUL entered in each case a plea of not guilty.

At the trial, the prosecution presented as witnesses SPO1 Generoso Pandez, PO3 Ernani Mendez, Police Inspector Anacleta Cultura and Police Inspector Lorna Tria. ABDUL was the sole witness for the defense. SPO1 Pandez, a PNP member of the Laguna Criminal Investigation Detection Group (CIDG), testified that on 12 April 1999, at 5:15 p.m., Major R Win Pagkalinawan ordered the search of ABDUL, alias Boy Muslim, based on a verified information that the latter was driving a carnapped Mitsubishi olive green car with Plate No. UPV 511 and was a drug-pusher in San Pedro, Laguna. Two teams were formed for the search. The first was headed by Major Pagkalinawan, with SPO4 Aberion and five others as members; and the second was led by Capt. Percival Rumbaoa, with SPO1 Pandez and PO3 Mendez as members.[6] Between 6:30 p.m. and 7:00 p.m., the two groups proceeded to Barangay Nueva, San Pedro, Laguna, on board a car and a van. They went to ABDULs apartment where he was reportedly selling shabu, but they learned that ABDUL had already left. While looking for ABDUL, they saw the suspected carnapped car somewhere at Pacita Complex I, San Pedro, Laguna, going towards the Poblacion. When it stopped due to the red traffic light, the CIDG officers alighted from their vehicles. Capt. Rumbaoa positioned himself at the passenger side of the suspected carnapped car, while Major Pagkalinawan stood in front of the car. SPO1 Pandez, with PO3 Mendez beside him, went straight to the driver and knocked at the drivers window. ABDUL, who was driving the car, lowered the glass window. SPO1 Pandez introduced himself as a member of the Laguna CIDG and asked ABDUL to turn on the light and show them the cars certificate of registration.[7] When the light was already on, SPO1 Pandez saw a black Norinco .45 caliber gun[8] inside an open black clutch/belt bag placed on the right side of the drivers seat near the gear. He asked ABDUL for the supporting papers of the gun, apart from the cars certificate of registration, but the latter failed to show them any.[9] When ABDUL opened the zipper of the clutch/belt bag, the CIDG officers saw inside it four plastic sachets of what appeared to be shabu. They likewise found a self-sealing plastic bag which contained the following items: two fake P1,000 bills, a list of names of persons, a magazine and five ammunitions for a .45 caliber gun. They confiscated the gun, the shabu, and the fake P1,000 bills and thereafter brought ABDUL to the CIDG office.[10] PO3 Mendez substantially corroborated the testimony of SPO1 Pandez.[11] The two P1,000 bills were found to be counterfeit after an examination conducted by Police Inspector Anacleta Cultura,[12] a document examiner at Camp Vicente Lim, Calamba, Laguna. The white crystalline substance contained in the four small plastic bags was subjected to physical and laboratory examination conducted by Police Inspector Lorna Tria, a Forensic Chemist at the PNP Crime Laboratory, Region IV, Camp Vicente Lim. Her findings[13] were as follows: (a) the three small plastic sachets weighed 29.46 grams, while the big plastic sachet weighed 197.21 grams, or a total weight of 226.67 grams; (b) representative samples taken from the specimens thereof were positive for methamphetamine hydrochloride or shabu, a regulated drug; and (c) the improvised tooter and the rolled aluminum foil with residue found in the self-sealing plastic bag were also positive of the presence for shabu residue. As expected, ABDUL had a different story to tell. He testified that on 12 April 1999, between 6:50 and 7:00 p.m., he was driving a borrowed Mitsubishi Galant Car with Plate No. UPV 501 somewhere in San Pedro, Laguna. With him was Rose, his live-in partner, whom he fetched

from Angeles City, Pampanga. He had borrowed the car from his friend Ferdinand Navares, who instructed him to return it in front of the latters store at San Pedro Public Market.[14] ABDUL was about to park the car when a man knocked hard on the glass window on the drivers side of the car and pointed at the former a .45 caliber pistol. Another one who was armed with an armalite rifle positioned himself in front of the car, while the third one positioned himself near the window on the passenger side and pointed a gun at his live-in partner Rose. ABDUL then lowered the cars window. The man near him opened the door, held him, and told him to alight. When the man asked him whether he was Boy Muslim, he answered in the negative. The same man opened the back door of the car and boarded at the back seat. Rose remained seated at the front passenger seat. [15] The other men likewise boarded the car, which was thereafter driven by one of them. While inside the car, they saw a .45 caliber pistol at the edge of the drivers seat. They asked him whether he had a license. He showed his gun license and permit to carry. After taking his gun, license, and permit to carry, they tried to remove his belt bag from his waist, but he did not allow them.[16] Upon reaching the headquarters, ABDUL learned that these people were C.I.S. agents. There, he was told to surrender the belt bag to the officer who would issue a receipt for it. He did as he was told, and the money inside his belt bag was counted and it amounted to P42,000. They then got his money and the cellular phone, which was also inside the bag, together with some other pieces of paper. They also took another cell phone from the car. He was never issued a receipt for these items.[17] Thereafter, a man entered the office with a white plastic bag allegedly taken from the borrowed car. ABDUL denied ownership over the plastic bag. That same man then told him that it contained shabu. ABDUL and Rose were detained at the headquarters. The next morning, Rose was allowed to get out; and in the afternoon, he was transferred to San Pedro Municipal Jail.[18] After the trial, the trial court acquitted ABDUL in Criminal Cases Nos. 1236 and 1237 for violations of Presidential Decree No. 1866 and Article 168 of the Revised Penal Code, respectively, due to insufficiency of evidence. However, it convicted him in Criminal Case No. 1238 for violation of Section 16, Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended,[19] and sentenced him to suffer the penalty of reclusion perpetua and to pay a fine of P500,000, as well as the costs of the suit. Dissatisfied with the judgment, ABDUL interposed the present appeal, alleging that the trial court erred in (1) convicting him for violation of Section 16 of Article III of the Dangerous Drugs Act of 1972, as amended, despite insufficiency of evidence; and (2) admitting the evidence presented by the prosecution although it was obtained in violation of his constitutional rights. In his first assigned error, ABDUL argues that the prosecution failed to prove the material allegations in the information. The information charges him, among other things, that without being authorized by law, [he] did then and there willfully and feloniously have in his possession, custody and control methamphetamine hydrochloride. However, the prosecution did not present any certification from the concerned government agency, like the Dangerous Drugs Board, to the effect that he was not authorized to possess shabu, which is a regulated drug. Thus, his guilt was not proved beyond reasonable doubt.

In his second assigned error, ABDUL asserts that he was not committing a crime when the CIS agents boarded his car, searched the same and ultimately arrested him. He was about to park his borrowed car per instruction by the owner when he was harassed by the operatives at gunpoint. The gun seen was properly documented; thus, there was no reason for the CIS agents to bring him and his companion to the headquarters. The shabu allegedly found in the car was brought in by somebody at the time he was under interrogation. It was taken in violation of his constitutional right against illegal search and seizure. Being a fruit of a poisonous tree it should not have been admitted in evidence. Moreover, the members of the CIDG merely relied on the information received from an anonymous telephone caller who said that ABDUL was driving a carnapped vehicle. They had no personal knowledge of the veracity of the information. Consequently, there was no legal basis for his warrantless arrest. In the Appellees Brief, the Office of the Solicitor General (OSG) maintains that ABDUL had the burden of proving that he was authorized to possess shabu, but he failed to discharge such burden. Therefore, it is presumed that he had no authority; consequently, he is liable for violation of Section 16, Article III of the Dangerous Drugs Act of 1972, as amended. The OSG likewise refutes ABDULs argument that there was a violation of his right against unreasonable searches and seizures. The general rule is that if a criminal charge is predicated on a negative allegation, or that a negative averment is an essential element of a crime, the prosecution has the burden of proving the charge. However, this rule is not without an exception. Thus, we have held: Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent upon the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendants knowledge or control. For example, where a charge is made that a defendant carried on a certain business without a license (as in the case at bar, where the accused is charged with the selling of a regulated drug without authority), the fact that he has a license is a matter which is peculiarly within his knowledge and he must establish that fact or suffer conviction.[20] In the instant case, the negative averment that ABDUL had no license or authority to possess methamphetamine hydrochloride or shabu, a regulated drug, has been fairly indicated by the following facts proven by the testimonies of the CIDG officers and the forensic chemist: (a) ABDUL was driving the suspected carnapped vehicle when he was caught, and he appeared to be healthy and not indisposed as to require the use of shabu as medicine; (b) the contents of the sachets found in ABDULs open clutch bag inside the car were prima facie determined by the CIDG officers to be shabu; and (c) the said contents were conclusively found to be shabu by the forensic chemist. With these established facts, the burden of evidence was shifted to ABDUL. He could have easily disproved the damning circumstances by presenting a doctors prescription for said drug or a copy of his license or authority to possess the regulated drug. Yet, he offered nothing. And now on the second issue. The Constitution enshrines in its Bill of Rights 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.[21] To give full protection to it,

the Bill of Rights also ordains the exclusionary principle that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding.[22] It is obvious from Section 2 of the Bill of Rights that reasonable searches and seizures are not proscribed. If conducted by virtue of a valid search warrant issued in compliance with the guidelines prescribed by the Constitution and reiterated in the Rules of Court, the search and seizure is valid. The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs search; (4) waiver or consented search; (5) stop and frisk situation (Terry search); and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners.[23] Another exception is a search made pursuant to routine airport security procedure, which is authorized under Section 9 of R.A. No. 6235.[24] The warrantless arrest of, or warrantless search and seizure conducted on, ABDUL constitute a valid exemption from the warrant requirement. The evidence clearly shows that on the basis of an intelligence information that a carnapped vehicle was driven by ABDUL, who was also a suspect of drug pushing, the members of the CIDG of Laguna went around looking for the carnapped car.[25] They spotted the suspected carnapped car, which was indeed driven by ABDUL. While ABDUL was fumbling about in his clutch bag for the registration papers of the car the CIDG agents saw four transparent sachets of shabu.[26] These sachets of shabu were therefore in plain view of the law enforcers. Under the plain view doctrine, unlawful objects within 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 in evidence. Nonetheless, the seizure of evidence in plain view must comply with the following requirements: (a) a prior valid intrusion in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent; and (d) the plain view justified mere seizure of evidence without further search.[27] We are convinced beyond any shadow of doubt under the circumstances above discussed that all the elements of seizure in plain view exist in the case at bar. Thus, the warrantless search and seizure conducted on ABDUL, as well as his warrantless arrest, did not transgress his constitutional rights. ABDULs sole defense of denial is unsubstantiated. We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. A mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.[28] On the issue of credibility between ABDULs testimony and the declarations of the CIDG officers, we hold for the latter. As has been repeatedly held, credence shall be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence

to the contrary; moreover in the absence of proof of motive to falsely impute such a serious crime against the accused, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over accuseds self-serving and uncorroborated claim of having been framed.[29] ABDUL miserably failed to rebut this presumption and to prove any ulterior motive on the part of the prosecution witnesses. Unauthorized possession of 200 grams or more of shabu or methylamphetamine hydrochloride is punishable by reclusion perpetua to death under Section 16 of Article III, in relation to Section 20 of Article IV, of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by P.D. Nos. 44, 1675, 1683, and 1707; Batas Pambansa Blg. 179; and R.A. No. 7659 (now further amended by R.A. No. 9165). These sections provide as follows: SEC.16. Possession or Use of Regulated Drugs. -- The penalty of reclusion perpetua to death and fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof. SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. -- The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 3. 200 grams or more of shabu or methylamphetamine hydrochloride. There is no doubt that the charge of illegal possession of shabu in Criminal Case No. 1238 was proved beyond reasonable doubt since ABDUL knowingly carried with him at the time he was caught 226.67 grams of shabu without legal authority. There being no modifying circumstance proven, the proper penalty pursuant to Article 63(2) of the Revised Penal Code is reclusion perpetua. The penalty imposed by the trial court, including the fine, is, therefore, in order. WHEREFORE, the appealed decision of the Regional Trial Court of San Pedro, Laguna, in Criminal Case No. 1238 convicting appellant ABDUL MACALABA y DIGAYON of the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P500,000 and the costs of the suit, is hereby affirmed in toto. Costs de oficio. SO ORDERED. Vitug, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

PEOPLE VS JUDGE LAGUIO G.R. No. 128587 March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y CHEN, Respondents. DECISION GARCIA, J.: On pure questions of law, petitioner People of the Philippines has directly come to this Court via this petition for review on certiorari to nullify and set aside the Resolution1 dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96149992, entitled People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C. Wangs Demurrer to Evidence and acquitting him of the three (3) charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban). The three (3) separate Informations filed against Lawrence C. Wang in the court of origin respectively read: Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act): That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control a bulk of white and yellowish crystalline substance known as SHABU contained in thirty-two (32) transparent plastic bags weighing approximately 29.2941 kilograms, containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription therefor. Contrary to law.2 Criminal Case No. 96-149991 (Illegal Possession of Firearms): That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and one AMT Cal. .380 9mm automatic backup pistol with magazine loaded with ammunitions without first having secured the necessary license or permit therefor from the proper authorities. Contrary to law. 3 Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and one (1) AMT Cal. 380 9mm automatic backup pistol with magazine loaded with ammunitions, carrying the same along Maria Orosa St., Ermita, Manila, which is a public place, on the date which is covered by an election period, without first securing the written permission or authority from the Commission on Elections, as provided by the COMELEC Resolution 2828 in relation to Republic Act 7166. Contrary to law. 4 During his arraignment, accused Wang refused to enter a plea to all the Informations and instead interposed a continuing objection to the admissibility of the evidence obtained by the police operatives. Thus, the trial court ordered that a plea of "Not Guilty" be entered for him.5 Thereafter, joint trial of the three (3) consolidated cases followed. The pertinent facts are as follows: On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against Crime of the Department of Interior and Local Government, namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a regulated drug popularly known as shabu. In the course of the investigation of the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug. An entrapment operation was then set after the three were prevailed upon to call their source and pretend to order another supply of shabu. At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of shabu to SPO2 De Dios and company. Questioned, Redentor Teck and Joseph Junio informed the police operatives that they were working as talent manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and Joseph Junio did not disclose their source of shabu but admitted that they were working for Wang.6 They also disclosed that they knew of a scheduled delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa Apartment in Malate, Manila. The police operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa Apartment and placed the same under surveillance. Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996, Wang, who was described to the operatives by Teck, came out of the apartment and walked towards a parked BMW car. On nearing the car, he (witness) together with Captain Margallo and two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back compartment of the BMW car.7 When frisked, there was found inside the front right pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time, the other members of the operatives searched the BMW car and found inside it were the following items: (a) 32 transparent plastic bags containing white crystalline substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive for methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of P650,000.00;

(c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the warrantless arrest and search.8 On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted 25 days from said date within which to file his intended Demurrer to Evidence.9 On 19 December 1996, the prosecution filed a Manifestation10 to the effect that it had rested its case only in so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96149990 is concerned, and not as regards the two cases for Illegal Possession of Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96149992). Accordingly, trial continued. On 9 January 1997, Wang filed his undated Demurrer to Evidence,11 praying for his acquittal and the dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and the inadmissibility of the prosecutions evidence against him. Considering that the prosecution has not yet filed its Opposition to the demurrer, Wang filed an Amplification12 to his Demurrer of Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its Opposition13 alleging that the warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so it is now time for the defense to present its evidence. On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed Resolution14 granting Wangs Demurrer to Evidence and acquitting him of all charges for lack of evidence, thus: WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated in favor of the government and the branch clerk is directed to turn over the 32 bags of shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officer-in-charge of PARAC, Department of Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the accused, and the confiscated BMW car to its registered owner, David Lee. No costs. SO ORDERED. Hence, this petition15 for review on certiorari by the People, submitting that the trial court erred I XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND THEREIN. ll XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST.

lII XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL. IV XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED. V XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO EVIDENCE. In its Resolution16 of 9 July 1997, the Court, without giving due course to the petition, required the public and private respondents to comment thereon within ten days from notice. Private respondent Wang filed his comment17on 18 August 1997. On 10 September 1997, the Court required the People to file a reply,18 which the Office of the Solicitor General did on 5 December 1997, after several extensions.19 On 20 October 2004, the Court resolved to give due course to the petition and required the parties to submit their respective memoranda,20 which they did. The case presents two main issues: (a) whether the prosecution may appeal the trial courts resolution granting Wangs demurrer to evidence and acquitting him of all the charges against him without violating the constitutional proscription against double jeopardy; and (b) whether there was lawful arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest and/or a search warrant. First off, it must be emphasized that the present case is an appeal filed directly with this Court via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right to appeal is neither a natural right nor a part of due process, it being merely a statutory privilege which may be exercised only in the manner provided for by law (Velasco v. Court of Appeals21). Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal, the right of the People to appeal is, in the very same provision, expressly made subject to the prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal cases throws the whole records of the case wide open for review by the appellate court, that is why any appeal from a judgment of acquittal necessarily puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People from judgments of acquittal. An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. Generally, any further prosecution of the accused after an

acquittal would violate the constitutional proscription on double jeopardy. To this general rule, however, the Court has previously made some exceptions. The celebrated case of Galman v. Sandiganbayan22 presents one exception to the rule on double jeopardy, which is, when the prosecution is denied due process of law: No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatorily required by the known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military men) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases." This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacaang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated.

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect, the first jeopardy was never terminated, and 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. Another exception is when the trial court commits grave abuse of discretion in dismissing a criminal case by granting the accuseds demurrer to evidence. In point is the fairly recent case of People v. Uy,23 which involved the trial courts decision which granted the two separate demurrers to evidence filed by the two accused therein, both with leave of court, resulting in their acquittal of their respective charges of murder due to insufficiency of evidence. In resolving the petition for certiorari filed directly with this Court, we had the occasion to explain: The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appeals explains the rationale of this rule: In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(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." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan: The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the prosecution had rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double-jeopardy. The verdict being one of acquittal, the case ends there. (Italics in the original) Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting the accused, committed not merely reversible errors of judgment but also grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void. (Emphasis supplied.) In Sanvicente v. People,24 the Court allowed the review of a decision of the Court of Appeals (CA) which reversed the accuseds acquittal upon demurrer to evidence filed by the accused with leave of court, the CA ruling that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of certain letter marked therein as Exhibit "LL," which supposedly "positively identified therein petitioner as the perpetrator of the crime charged." The Court, in a petition for certiorari, sustained the CAs power to review the order granting the demurrer to evidence, explaining thus: 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. (Emphasis supplied.) By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated. Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65. In Madrigal Transport Inc. v. Lapanday Holdings Corporation,25 we have enumerated the distinction between the two remedies/actions, to wit: Appeal and Certiorari Distinguished Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below. As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: "When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari."

The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is the remedy. As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively). As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy. As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration. On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing a judgment or final order. Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two different remedies mutually exclusive; they are neither alternative nor successive. Where appeal is available, certiorari will not prosper. In the dismissal of a criminal case upon demurrer to evidence, appeal is not available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed. For being the wrong remedy taken by petitioner People of the Philippines in this case, this petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order of the trial court by appeal without violating private respondents right against double jeopardy.

Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion committed by the lower court, the instant petition will nevertheless fail on the merits as the succeeding discussion will show. There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed.26 However, if there are valid reasons to conduct lawful search and seizure which thereafter shows that the accused is currently committing a crime, the accused may be lawfully arrested in flagrante delicto27 without need for a warrant of arrest. Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court granted private respondent's demurrer to evidence and acquitted him of all the three charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from an invalid warrantless search. The trial courts ratiocination is quoted as follows: The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless arrest and search were lawful as argued by the prosecution, or unlawful as asserted by the defense. Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a warrant: (a) when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it, and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while being transferred from one confinement to another. None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was not committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the accused had in his possession was concealed inside the right front pocket of his pants. And the handgun was bantam and slim in size that it would not give an outward indication of a concealed gun if placed inside the pant's side pocket as was done by the accused. The arresting officers had no information and knowledge that the accused was carrying an unlicensed handgun, nor did they see him in possession thereof immediately prior to his arrest. Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the drivers seat of the car. The police officers had no information, or knowledge that the banned articles were inside the car, or that the accused had placed them there. The police officers searched the car on mere suspicion that there was shabu therein. On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03 Reynaldo are hereunder quoted:

POLICE INSPECTOR CIELITO CORONELS TESTIMONY "PROSECUTOR TO WITNESS: Direct-Examination Q. Mr. Witness, what was your role or participation in this case? A. I am one of those responsible for the arrest of the accused. xxx xxx xxx Q. Where did you make that arrest, Mr. Witness? A. The apprehension was made in front of an apartment along Maria Orosa Street, Ermita, Manila. Q. What date was that when you arrested the accused? A. It was on May 17, 1996, at about 2:10 a.m. xxx xxx xxx Q. What was the reason why you together with other policemen effected the arrest of the accused? A. We arrested him because of the information relayed to us by one of those whom we have previously apprehended in connection with the delivery of shabu somewhere also in Ermita, Manila. xxx xxx xxx Q. When you established that he was somewhere at Maria Orosa, what did you do? A. We waited for him. xxx xxx xxx Q. You yourself, Mr. Witness, where did you position yourself during that time? A. I was inside a vehicle waiting for the accused to appear. Q. What about your other companions where were they? A. They were position in strategic places within the area. Q. What happened when you and your companions were positioned in that place? A. That was when the accused arrived. Q. How many of your approached him. A. Inspector Margallo, myself and two other operatives.

Q. What happened when you approached the accused, Mr. Witness? A. We introduced ourselves as police officers and we frisked him and we asked him to open the back compartment of his car. Q. You said you frisked him, what was the result of that? A. He was found in possession of one back-up pistol with one loaded magazine and likewise when the compartment was opened several plastic bags containing white crystalline substance suspected to be shabu (were found). Q. What did you do when you found out Mr. Witness? A. When the car was further search we later found another firearm, a Daewoo Pistol at the place under the seat of the driver. Q. Then what happened? A. He was brought to our headquarters at Mandaluyong for further investigation. Q. What about the suspected shabu that you recovered, what did you do with that? A. The suspected shabu that we recovered were forwarded to the NBI for laboratory examination. Q. Did you come to know the results? A. It was found positive for methamphetamine hydrochloride. (TSN, pp. 3-8, November 15, 1996). ATTY. LOZANO TO WITNESS: CROSS Q. You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16, 1996, at 11:00 p.m., is it not? A. Yes, Sir. Q. You asked Redentor Teck where he is employed, is it not? A. Yes, Sir. xxx xxx xxx Q. Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it not? A. Yes, Sir. .Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it not?

A. I supposed, Sir. Q. And that is why immediately after Redentor Teck told you that he is an employee of the Glenmore Modeling Agency owned by Lawrence Wang, naturally, you and your companions look for Lawrence Wang to shed light on the transporting of shabu by Redentor Teck and Joseph Junio, is it not? A. Yes, Sir. Q. Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang, is it not? A. Yes, Sir. Q. While you were arresting Lawrence Wang, your companions at the same time searched the BMW car described in your affidavit of arrest, is it not? A. Yes, Sir. xxx xxx xxx Q. Lawrence Wang was not inside the BMW car while the same was searched, is it not? A. He was outside, Sir. Q. The driver of the car was inside the car when the arrest and search were made, is it not? A. He was likewise outside, Sir. Q. Lawrence Wang did resist arrest and search is it not? A. Yes, Sir. Q. When you effected the arrest, there was no warrant of arrest, is it not? A. Yes, Sir. Q. When the search was made on the BMW car, there was no search warrant, is it not? A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996) SPO3 REYNALDO CRISTOBALS TESTIMONY PROSECUTOR TO WITNESS: DIRECT EXAMINATION Q. What is you role or participation in this case? A. I was one of the arresting officers and investigator, Sir. xxx xxx xxx

Q. What kind of specific offense did the accused allegedly do so that you arrested him, Mr. Witness? A. He was arrested on the basis of the recovered drugs in his possession placed inside his car. xxx xxx xxx Q. Mr. witness, you said that you recovered drug from the car of the accused, please tell us the antecedent circumstances which led you to recover or confiscate these items? A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph Junio. COURT: Where did you arrest these people? A They were arrested in Metro Manila also. COURT: The same date? A. May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck mentioned the name of Lawrence Wang as his employer. COURT: Why were these people, arrested? A. For violation of R.A. 6425. COURT: How were they arrested? A. They were arrested while in the act of transporting shabu or handling shabu to another previously arrested person. It was a series of arrest. COURT: So, this involved a series of operation? A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel de Dios, a certain Arellano and a certain Rogelio Noble. When they were arrested they divulged the name of the source. COURT: They were arrested for what, for possession? A. Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of the person from whom they get shabu. COURT: Whose name did they mention: A. One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call Redentor Teck and Joseph Junio thru the cellphone and pretend and to order another supply of shabu. COURT: So there was an entrapment? A. Yes, Your Honor.

COURT: So, these two (2) were arrested? A. While they were about to hand over another bag of shabu to Noble and company. COURT: And these two reveals (revealed) some information to you as to the source of the shabu? A. Yes, Your Honor. COURT: What was the information? A. Teck told us that he is an employee of Lawrence Wang. COURT: What did you do when you were told about that? A. They also told us that there was an ongoing delivery of shabu on that morning. COURT: When? A. Of that date early morning of May 17, 1996. COURT: At what place? A. We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa Apartment where we conducted a stake out which lasted up to 2:00 a.m. xxx xxx xxx COURT: What happened during the stake out? A. When the person of the accused was identified to us, we saw him opening his car together with his driver. COURT: So, he was about to leave when you saw him? A. Probably, Sir. COURT: What did you do? A. We saw him opened his car and we have a suspicion that there was a shabu inside the compartment of the car. xxx xxx xxx COURT: All right, when you saw the accused opened his car, what did you do? A. We approached him. COURT: What happened when you approached him?

A. We suspected the shabu inside the compartment of his car. COURT: And this shabu that you saw inside the compartment of the car, what did you do with that? A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who inspected and opened the compartment of the car and saw the shabu. (TSN, pp. 15-24, December 16, 1996). CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has gathered that prior to the arrest of the accused there were three (3) men that your team arrested. One of whom is a police officer. A: Yes, Sir. xxx xxx xxx COURT: And on the occasion of the arrest of these three men shabu were confiscated from them? A: Yes, Sir. Q: And in the course of the investigation of these three men, you were able to discover that Redentor Teck and Joseph Junio were the source of the regulated drug that were confiscated from the three men that you have arrested? A: Yes, Sir. Q: Now, thru entrapment base[d] on your testimony you were able to apprehend also these two men, Redentor Teck and Joseph Junio? A: Yes, Sir. xxx xxx xxx Q: These two men, Redentor Teck and Joseph Junio they were also investigated by your team? A: Yes, Sir. Q: You were present while they were investigated? A: I was the one whom investigated them. xxx xxx xxx Q: Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the time of the (their) arrest?

A: Yes, Sir. They refuse to say the source, however, they told me that they were working for the accused. Q: You also testified that Redentor informed you that there was another delivery of shabu scheduled that morning of (stop) was it May 16 or 17? The other delivery that is scheduled on? A: On the 17th. xxx xxx xxx Q: Did he tell you who was to make the delivery? A: No, Sir. xxx xxx xxx Q: At that time when you decided to look for the accused to ask him to shed light on the matter concerning the arrest of these two employees in possession of shabu. Did you and did your team suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor and Joseph? A: Yes, Sir. We suspected that he was the source of the shabu. xxx xxx xxx Q: When you saw the accused walking towards his car, did you know whether he was carrying a gun? A: No, Sir. It cannot be seen. Q: It was concealed? A: Yes, Sir. Q: So, the only time that you and your team learned that he was in possession of the gun is when he was bodily search? A: Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me the gun. Q: Other than walking towards his car, the accused was not doing anything else? A: None, Sir. Q: That would invite your suspicion or give indication that he was intending to do something unlawful or illegal? A: No, Sir. Q: When you searched the car, did the accused protest or try to prevent your team from searching his car?

A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997) Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x The trial court resolved the case on the basis of its findings that the arrest preceded the search, and finding no basis to rule in favor of a lawful arrest, it ruled that the incidental search is likewise unlawful. Any and all pieces of evidence acquired as a consequence thereof are inadmissible in evidence. Thus, the trial court dismissed the case for lack of evidence. Contrary to its position at the trial court, the People, however, now posits that "inasmuch as it has been shown in the present case that the seizure without warrant of the regulated drugs and unlicensed firearms in the accuseds possession had been validly made upon probable cause and under exigent circumstances, then the warrantless arrest of the accused must necessarily have to be regarded as having been made on the occasion of the commission of the crime in flagrante delicto, and therefore constitutionally and statutorily permissible and lawful."28 In effect, the People now contends that the warrantless search preceded the warrantless arrest. Since the case falls under an exception to the general rule requiring search warrant prior to a valid search and seizure, the police officers were justified in requiring the private respondent to open his BMW cars trunk to see if he was carrying illegal drugs. The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of credibility of evidence. It entails appreciation of evidence, which may be done in an appeal of a criminal case because the entire case is thrown open for review, but not in the case of a petition for certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal order consequent to a demurrer to evidence is not subject to appeal and reviewable only by certiorari, the factual finding that the arrest preceded the search is conclusive upon this Court. The only legal basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon demurrer to evidence would be if the trial court committed grave abuse of discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending. For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.291awphi1.nt The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.30 Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5. And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5. The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful. In People v. Aminnudin,31 the Court declared as inadmissible in evidence the marijuana found in appellants possession during a search without a warrant, because it had been illegally seized, in disregard of the Bill of Rights: In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the

marijuana that he suddenly became a suspect and so subject to apprehension. It was the fugitive finger that triggered his arrest. The identification of the informer was the probable cause as determined by the officer (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. The Peoples contention that Wang waived his right against unreasonable search and seizure has no factual basis. While we agree in principle that consent will validate an otherwise illegal search, however, based on the evidence on record, Wang resisted his arrest and the search on his person and belongings.32 The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.33 Moreover, the continuing objection to the validity of the warrantless arrest made of record during the arraignment bolsters Wangs claim that he resisted the warrantless arrest and search. We cannot close this ponencia without a word of caution: those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, "I think it is less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself.34 WHEREFORE, the instant petition is DENIED. SO ORDERED.

SANCHEZ VS DEMETRIOU ANTONIO L. SANCHEZ, petitioner, vs. The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six respondents in their official capacities as members of the State Prosecutor's Office), respondents. Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner. The Solicitor General for respondents.

CRUZ, J.: There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already been rendered by many outraged persons who would immediately impose on him an angry sentence. Yet, for all the prejudgments against him, he is under our Constitution presumed innocent as long as the contrary has not been proved. Like any other person accused of an offense, he is entitled to the full and vigilant protection of the Bill of Rights. Sanchez has brought this petition to challenge the order of the respondent judge denying his motion to quash the informations for rape with homicide filed against him and six other persons. We shall treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment from this Court. The pertinent facts are as follows: On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan Gomez. Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented by his counsel, Atty. Marciano Brion, Jr. On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp. At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the Department of Justice in Manila.

The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador Panelo as his counsel. After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains confined. On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta. On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all the accused, including the petitioner, in connection with the said crime. The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou. On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez as an aggravating circumstance. On that same date, the petitioner filed a motion to quash the informations substantially on the grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction. The petitioner argues that the seven informations filed against him should be quashed because: 1) he was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from the death of only two persons; 5) the informations are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only by the Sandiganbayan. The respondents submitted a Comment on the petition, to which we required a Reply from the petitioner within a non-extendible period of five days. 1 The Reply was filed five days late. 2 The Court may consider his non-compliance an implied admission of the respondents' arguments or a loss of interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on the basis of the arguments before us. The Preliminary Investigation. The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he was not accorded the right to present counter-affidavits.

During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion, manifested that his client was waiving the presentation of a counter-affidavit, thus: Atty. Brion, Jr.: [W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements as far as Mayor Sanchez is concerned, We are not going to submit any counteraffidavit. ACSP Zuo to Atty. Brion: xxx xxx xxx

Q. So far, there are no other statements. A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing to rebut or countermand with all these statements. Q. So, you are waiving your submission of counter-affidavit?

A. Yes, your honor, unless there are other witnesses who will come up soon. 3 Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed. During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he could submit counter-affidavits on or before August 27, 1993. The following exchange ensued: ACSP Zuo: For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and the sworn statement of SPO3 Vivencio Malabanan y Angeles. Do I understand from you that you are again waiving the submission of counter-affidavit? Atty. Panelo: Yes. ACSP Zuo: So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for resolution. 4 On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio

Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the abovequoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo. The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now question his representation by this lawyer as unauthorized and inofficious. Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base his resolution on the evidence presented by the complainant. Just as the accused may renounce the right to be present at the preliminary investigation 5, so may he waive the right to present counter-affidavits or any other evidence in his defense. At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of the information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. 6 If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment. Jurisdiction of the Ombudsman Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by the Department of Justice are null and void because it had no jurisdiction over the case. His claim is that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all cases involving public officers like him, as the municipal mayor of Calauan, Laguna. The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate and prosecute, any illegal act or omission of any public official. However, as we held only two years ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but rather a shared or concurrent authority in. respect of the offense charged." Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA at 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense here charged, i.e., the crime of sedition. Thus, the noninvolvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority the panel of prosecutors to file and prosecute the information or amended information.

In fact, other investigatory agencies, of the government such as the Department of Justice, in connection with the charge of sedition, 10 and the Presidential Commission on Good Government, in ill-gotten wealth cases, 11 may conduct the investigation, The Arrest Was petitioner Sanchez arrested on August 13, 1993? "Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest. Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent onthe part of the other to submit, under the belief and impression that submission is necessary. 12 The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letterinvitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation. In Babst v. National Intelligence Board 13 this Court declared: Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. . . . (Emphasis supplied) In the case at bar, the invitation came from a high-ranking military official and the investigation of Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the officers who had come to fetch him. It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation" are applicable even to a person not formally arrested but merely "invited" for questioning. It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the basis of the sworn statements of the two state witnesses, petitioner had been "arrested."

We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of Court, providing as follows: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escapes from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. It is not denied that the arresting officers were not present when the petitioner allegedly participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any personal knowledge that the petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it cannot be said that the offense had "in fact just been committed" when the petitioner was arrested. The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal. Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of that court. 14 The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention. The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. * Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that: Sec, 4. When writ is not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be

allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall, anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While frowning at the tactics of the respondents, the Court said: The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the requirements of the Constitution and the Rules of Court regarding the particular description of the person to be arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade. The same doctrine has been consistently followed by the Court, 17 more recently in the Umil case. 18 The Informations The petitioner submits that the seven informations charging seven separate homicides are absurd because the two victims in these cases could not have died seven times. This argument was correctly refuted by the Solicitor General in this wise: Thus, where there are two or more offenders who commit rape, the homicide committed on the occasion or by reason of each rape, must be deemed as a constituent of the special complex crime of rape with homicide. Therefore, there will be as many crimes of rape with homicide as there are rapes committed. In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its character as an independent offense, but assumes a new character, and functions like a qualifying circumstance. However,by fiction of law, it merged with rape to constitute an constituent element of a special complex crime of rape with homicide with a specific penalty which is in the highest degree, i.e. death (reduced to reclusion perpetua with the suspension of the application of the death penalty by the Constitution). It is clearly provided in Rule 110 of the Rules of Court that: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a simple punishment for various offenses. Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the Revised Penal Code.

The petitioner and his six co-accused are not charged with only one rape committed by him in conspiracy with the other six. Each one of the seven accused is charged with having himself raped Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the allegation of the prosecution is that the girl was raped seven times, with each of the seven accused taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all seven of them decided to kill and thus silence Sarmenta. Every one of the seven accused is being charged separately for actually raping Sarmenta and later killing her instead of merely assisting the petitioner in raping and then slaying her. The separate informations filed against each of them allege that each of the seven successive rapes is complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven attackers. The separate rapes were committed in succession by the seven accused, culminating in the slaying of Sarmenta. It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven times, but the informations do not make such a suggestion. It is the petitioner who does so and is thus hoist by his own petard. The Alleged Discrimination The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must also be dismissed. While the prosecuting officer is required by law to charge all those who in his opinion, appear to be guilty, he nevertheless cannot be compelled to include in the information a person against whom he believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion. 20 The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion. 23 At any rate, it is a preposterous contention that because no charges have been filed against Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be dropped. Jurisdiction of the Sandiganbayan The petitioner argued earlier that since most of the accused were incumbent public officials or employees at the time of the alleged commission of the crimes, the cases against them should come under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention

was withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned. Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code: (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. . . . (Emphasis supplied) The crime of rape with homicide with which the petitioner stands charged obviously does not fall under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph (2) because it is not an offense committed in relation to the office of the petitioner. In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as follows: [T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code. Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator. being a public functionary took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime There is no direct relation between the commission of the crime of rape with homicide and the petitioner's office as municipal mayor because public office is not an essential element of the crime charged. The offense can stand independently of the office. Moreover, it is not even alleged in the information that the commission of the crime charged was intimately connected with the performance of the petitioner's official functions to make it fall under the exception laid down in People v. Montejo. 25

In that case, a city mayor and several detectives were charged with murder for the death of a suspect as a result of a "third degree" investigation held at a police substation. The appearance of a senator as their counsel was questioned by the prosecution on the ground that he was inhibited by the Constitution from representing them because they were accused of an offense committed in relation to their office. The Court agreed. It held that even if their position was not an essential ingredient of the offense, there was nevertheless an intimate connection between the office and the offense, as alleged in the information, that brought it within the definition of an offense "committed in relation to the public office." As Chief Justice Concepcion said: It is apparent from these allegations that, although public office is not an element of the crime of murder in abstract, as committed by the main respondents herein, according to the amended information, the offense therein charged is intimately connected with their respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed they had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S. Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City. (Emphasis supplied). We have read the informations in the case at bar and find no allegation therein that the crime of rape with homicide imputed to the petitioner was connected with the discharge of his functions as municipal mayor or that there is an "intimate connection" between the offense and his office. It follows that the said crime, being an ordinary offense, is triable by the regular courts and not the Sandiganbayan. Conclusion As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the respondent judge, who has started the trial of the criminal cases against the petitioner and his co-accused, may proceed therewith without further hindrance. It remains to stress that the decision we make today is not a decision on the merits of the criminal cases being tried below. These will have to be decided by the respondent judge in accordance with the evidence that is still being received. At this time, there is yet no basis for judgment, only uninformed conjecture. The Court will caution against such irrelevant public speculations as they can be based only on imperfect knowledge if not officious ignorance. WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide them with deliberate dispatch. SO ORDERED.

PEOPLE VS DORIA

EN BANC [G.R. No. 125299. January 22, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants. DECISION PUNO, J.: On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972.[1] The information reads: "That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law. CONTRARY TO LAW."[2] The prosecution contends the offense was committed as follows: In November 1995, members of the North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City. On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills[3]-as money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial numbers in the police blotter.[4] The team rode in two cars and headed for the target area. At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got the marijuana from his associate.[5] An hour later, "Jun" appeared at the agreed place where PO3 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They

frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth."[6] "Jun" led the police team to "Neneth's" house nearby at Daang Bakal. The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried marijuana leaves. Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth."[8] The policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned them over to the investigator at headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at the PNP Crime Laboratory.[9] The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams.[10] The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in their community. When accused-appellant denied the charge, the men led him to their car outside and ordered him to point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house. Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as PO3 Manlangit, pushed open the door and he and his companions entered and looked around the house for about three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered her house, three men were already inside. Accused-appellant Doria, then still at the door, overheard one of the men say that they found a carton box. Turning towards them, Doria saw a box on top of the table. The box was open and had something inside. PO3 Manlangit ordered him and Violeta to go outside the house and board the car. They were brought to police headquarters where they were investigated. Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife.[11] Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and

Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and took her to her house. She found out later that the man was PO3 Manlangit. Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the table. This was the first time she saw the box. The box was closed and tied with a piece of green straw. The men opened the box and showed her its contents. She said she did not know anything about the box and its contents. Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and that her husband never returned to their house after he left for Pangasinan. She denied the charge against her and Doria and the allegation that marked bills were found in her person.[12] After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows: "WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both CONVICTED of the present charge against them. According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which explicitly state that: 'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime.' the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs. The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for destruction in accordance with law.

Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City. Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review. SO ORDERED."[13] Before this Court, accused-appellant Doria assigns two errors, thus: "I THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER. II THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14] Accused-appellant Violeta Gaddao contends: "I THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED. II THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY. III THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST. IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT."[15] The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her person and house, and the admissibility of the pieces of evidence obtained therefrom. Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of an offense.[16] Entrapment has received judicial sanction when undertaken with due regard to constitutional and legal safeguards.[17] Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public interest in the formulation and application of decent standards in the enforcement of criminal law.[19] It also took off from a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist.[20] In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.[21] The classic definition of entrapment is that articulated by Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer."[23] It consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of the government officials rather than that of the innocent defendant, such that the crime is the product of the creative activity of the law enforcement officer.[24] It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a criminal career.[25] Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had.[26] Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted.[27] The law tolerates the use of decoys and other artifices to catch a criminal. Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the nature of a confession and avoidance.[29] It is a positive defense. Initially, an accused has the burden of providing sufficient evidence that the government induced him to commit the offense. Once established, the burden shifts to the government to show otherwise.[30] When

entrapment is raised as a defense, American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United States[31] to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his state of mind and inclination before his initial exposure to government agents.[32] All relevant facts such as the accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of mind before the crime.[33] The predisposition test emphasizes the accused's propensity to commit the offense rather than the officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary innocent and the trap for the unwary criminal."[35] If the accused was found to have been ready and willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement.[36] Some states, however, have adopted the "objective" test.[37] This test was first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct.[39] The inquiry is focused on the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct.[40] The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the offense;[41] for purposes of this test, it is presumed that a lawabiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully.[42] Official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or importuning,[43] or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not.[44] Proponents of this test believe that courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on behalf of the government to bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should not become tainted by condoning law enforcement improprieties.[45] Hence, the transactions leading up to the offense, the interaction between the accused and law enforcement officer and the accused's response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are considered in judging what the effect of the officer's conduct would be on a normal person.[46] Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the "subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory practices will be deemed impermissible.[47] Delving into the accused's character and predisposition obscures the more important task of judging police behavior and prejudices the accused more generally. It ignores the possibility that no matter what his past crimes and general disposition were, the accused might not have committed the particular crime unless confronted with inordinate inducements.[48] On the other extreme, the purely "objective" test eliminates entirely the need for considering a particular accused's predisposition. His predisposition, at least if known by the police, may have an important bearing upon the question of whether the conduct of the police and their agents was proper.[49] The undisputed fact that the accused was a dangerous and chronic offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy.[50]

Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now combine both the "subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme Court declared that the permissibility of police conduct must first be determined. If this objective test is satisfied, then the analysis turns to whether the accused was predisposed to commit the crime.[53] In Baca v. State,[54] the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation.[55] The hybrid approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently. As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug.[57] The conduct of the BIR agent was condemned as "most reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.[62] It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64] we held: "ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and where a person approached by the thief as his confederate notifies the owner or the public

authorities, and, being authorised by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are cases holding the contrary."[65] The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,[66] the appellate court declared that "there is a wide difference between entrapment and instigation." The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker."[69] The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal.[71] It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is considered an absolutory cause.[72] To determine whether there is entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test first applied in United States v. Phelps has been followed in a series of similar cases.[73] Nevertheless, adopting the "objective" approach has not precluded us from likewise applying the "subjective" test. In People v. Boholst,[74] we applied both tests by examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous convictions of other crimes[75] and held that his opprobrious past and membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining his defense that led to his acquittal. The distinction between entrapment and instigation has proven to be very material in antinarcotics operations. In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory statutes.[77] They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and immoral.[79] Laws defining crimes mala prohibita condemn behavior directed, not against particular individuals, but against public order.[80] Violation is deemed a wrong against society as a whole and is generally unattended with any particular harm to a definite person.[81] These offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that the police must be

present at the time the offenses are committed either in an undercover capacity or through informants, spies or stool pigeons.[82] Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds abominable abuse. Frequently, a person who accepts payment from the police in the apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the police. The informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses underworld characters to help maintain law and order is not an inspiring one.[83] Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous law enforcers' motivations are legion-- harassment, extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and hapless persons, particularly unsuspecting provincial hicks.[85] The use of shady underworld characters as informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be extra-vigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy, although necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87] "[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the employment of illegal means."[88] It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual.[89] It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless enforcement.[90] Courts should not allow themselves to be used as an instrument of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug offenses.[91] We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale.[92] The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.

In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed the marked money to accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later returned and handed the brick of marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police.[93] It is well-settled that except when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers,[94] or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant,[95] or that only the informant was the poseur-buyer who actually witnessed the entire transaction,[96] the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies.[97] There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses.[98] The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution proved that money was paid to accusedappellant Doria in consideration of which he sold and delivered the marijuana. Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each of the ten (10) bricks, however, were identified and marked in court. Thus: "ATTY. ARIAS, Counsel for Florencio Doria: Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box? A This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana brick we confiscated from the suspect, sir. Q Please open it and show those eleven bricks. Witness bringing out from the said box...

PROSECUTOR

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when the question posed to the witness was what was handed to him by Jun? COURT So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box showed to him and brought in front of him. COURT Q Noted.

Now tell the court, how did you know that those are the eleven bricks? x x x.

A Q A

I have markings on these eleven bricks, sir. Point to the court, where are those markings? Here, sir, my signature, my initials with the date, sir. Witness showed a white wrapper and pointing to CLM and the signature.

PROSECUTOR Q

Whose signature is that?

ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to him by the accused Jun, your Honor? PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration. COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court. ATTY. VALDEZ A We submit, your Honor.

This brick is the one that was handed to me by the suspect Jun, sir. Why do you know that that is the thing? Are you sure that is not "tikoy?"

COURT A Q

Yes, your Honor. What makes you so sure?

A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to the PCCL, your Honor. Q A Q What are you sure of? I am sure that this is the brick that was given to me by one alias Jun, sir. What makes you so sure?

A Because I marked it with my own initials before giving it to the investigator and before we brought it to the PCCL, your Honor. x x x.

PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked as Exhibit "D?" COURT Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic? A Q A This one, the signature, I made the signature, the date and the time and this Exhibit "A." How about this one? I don't know who made this marking, sir. May it be of record that this was just entered this morning.

PROSECUTOR Q

I am asking you about this "itim" and not the "asul."

A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir. PROSECUTOR May we place on record that the one that was enclosed...

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other entries included in the enclosure. COURT Noted. The court saw it.

Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?" COURT Tag it. Mark it.

Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom? A Q A Q It was given to me by suspect Jun, sir. Whereat? At the corner of Boulevard and Jacinto St., sir. How about the other items that you were able to recover?

x.

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. x x x."[99]

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were marked as Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams.[100] We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseurbuyer and the pusher.[101] Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant.[102] We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit: "Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. x x x."[103]

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.[104] The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of marijuana and marked bills are different matters.

Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search of a moving motor vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused himself waives his right against unreasonable searches and seizures.[111] The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the search was an incident to her lawful arrest. To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise: "ATTY VALDEZ, Counsel for appellant Gaddao: We submit at this juncture, your Honor, that there will be no basis for that question. Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom? A Q A Q It was given to me by suspect Jun, sir. Whereat? At the corner of Boulevard and Jacinto Street, sir. How about the other items that you were able to recover? We submit at this juncture, your Honor, that there will be no basis for that

ATTY. VALDEZ: question. COURT

There is. Answer.

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. Q A Q Whereat? At Daang Bakal near the crime scene at Shaw Boulevard, sir. And what happened upon arrival thereat?

A We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir.

Q A Q A

You mentioned "him?" Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir. And what happened? At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir. x x x."[112]

SPO1 Badua testified on cross-examination that: Q A What was your intention in going to the house of Aling Neneth? To arrest her, sir.

Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there? A Q A Q A Q A Yes, sir. As far as you can see, she was just inside her house? I saw her outside, sir. She was fetching water as a matter of fact? She was `sa bandang poso.' Carrying a baby? No, sir.

Q At that particular time when you reached the house of Aling Neneth and saw her outside the house, she was not committing any crime, she was just outside the house? A No, sir.

Q She was not about to commit any crime because she was just outside the house doing her daily chores. Am I correct? A Q A I just saw her outside, sir. And at that point in time you already wanted to arrest her. That is correct, is it not? Yes, sir.

Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her? A PO3 Manlangit, sir.

Q A

You did not approach her because PO3 Manlangit approached her? Yes, sir.

Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just in the side lines? A I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this buy-bust operation was as a back-up? A Q A Q A Q A Q Yes, sir. Who got the alleged marijuana from inside the house of Mrs. Neneth? PO3 Manlangit, sir. Manlangit got the marijuana? Yes, sir. And the money from Aling Neneth? I don't know, sir. You did not even know who got the money from Aling Neneth?

PROSECUTOR: There is no basis for this question, your Honor. Money, there's no testimony on that. ATTY. VALDEZ: I was asking him precisely. PROSECUTOR: No basis. COURT: Sustained. Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount of P1,600.00 was recovered from the person of Aling Neneth. That's right? A Yes, sir, the buy-bust money.

Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved the money from Aling Neneth, it was Manlangit maybe? A Q A I saw it, sir. It was Manlangit who got the money from Aling Neneth? The buy-bust money was recovered from the house of Aling Neneth, sir.

Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to tell the Court? A No, sir. I am through with this witness, your Honor."[113]

ATTY. VALDEZ:

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit."[114] In fact, she was going about her daily chores when the policemen pounced on her. Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion."[115] The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.[116] A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.[117] Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house,[119] with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable.[120] Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of marijuana was in plain view, making its warrantless seizure valid.

Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence.[121] 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.[122] The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area.[123] In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery inadvertent.[126] It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. 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.[127] 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.[128] 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.[129] PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows: "ATTY. VALDEZ: So here we are. When you and Badua arrived, Aling Neneth was inside the house? A Q A Q A Q A Q A Q A Yes, sir. Badua demanded from Aling Neneth the buy-bust money? Yes, sir. At that particular instance, you saw the carton? Yes, sir. This carton, according to you was under a table? Yes, sir, dining table. I noticed that this carton has a cover? Yes, sir. I ask you were the flaps of the cover raised or closed? It was open, sir. Not like that.

COURT Go down there. Show to the court. INTERPRETER Witness went down the witness stand and approached a carton box. A Like this, sir.

PROSECUTOR Can we describe it? ATTY. VALDEZ Yes. PROSECUTOR One flap is inside and the other flap is standing and with the contents visible. COURT Noted. Q A Q A Q A Q At this juncture, you went inside the house? Yes, sir. And got hold of this carton? Yes, sir. Did you mention anything to Aling Neneth? I asked her, what's this... No, no. no. did you mention anything to Aling Neneth before getting the carton?

A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir. Q A Making reference to the marijuana that was given by alias Jun? Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]? A I just don't know if she was frisked already by Badua, sir.

Q A Q A

Who got hold of this? I was the one, sir. You were the one who got this? Yes, sir.

Q At that particular point in time, you did not know if the alleged buy-bust money was already retrieved by Badua? A Q A Q A Yes, sir. You went inside the house? Yes, sir. You did not have any search warrant? Yes, sir.

Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in possession of the buy-bust money because according to you, you did not know whether Badua already retrieved the buy-bust money from her? A Q A Q A Q A Yes, sir. How far was this from the door? Two and a half meters from the door, sir. It was in plain view. Under the table according to you? Yes, sir, dining table. Somewhere here? It's far, sir.

PROSECUTOR May we request the witness to place it, where he saw it? A Q A Q Here, sir. What you see is a carton? Yes, sir, with plastic. Marked "Snow Time Ice Pop?"

A Q A Q A

Yes, sir. With a piece of plastic visible on top of the carton? Yes, sir. That is all that you saw? Yes, sir.

PROSECUTOR For the record, your Honor... Q You were only able to verify according to you...

PROSECUTOR Panero, wait. Because I am objecting to the words a piece of plastic. By reading it... ATTY. VALDEZ That's a piece of plastic. PROSECUTOR By reading it, it will connote... this is not a piece of plastic. ATTY. VALDEZ What is that? What can you say, Fiscal? I'm asking you? PROSECUTOR With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one, for record purposes. COURT Leave that to the court. PROSECUTOR Leave that to the court. Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the Court, it could be "tikoy," is it not [sic]? A Yes, sir.

Q A Q A Q A Q A

Siopao? Yes, sir. Canned goods? Yes, sir. It could be ice cream because it says Snow Pop, Ice Pop? I presumed it was also marijuana because it may ... I am not asking you what your presumptions are. I'm asking you what it could possibly be. It's the same plastic, sir.

ATTY. VALDEZ I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for you. COURT Continue. Next question. x x x."[130]

PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria named her and led them to her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two and a half meters away was the dining table and underneath it was a carton box. The box was partially open and revealed something wrapped in plastic. In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself checked and marked the said contents.[132] On crossexamination, however, he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was individually wrapped in old newspaper and placed inside plastic bags-- white, pink or blue in color.[133] PO3 Manlangit himself admitted on cross-examination that the contents of the box could be items other than marijuana. He did not know exactly what the box contained that he had to ask appellant Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant was in violation of the law and the Constitution.[135] It was fruit of the poisonous tree and should have been excluded and never considered by the trial court.[136]

The fact that the box containing about six (6) kilos of marijuana[137] was found in the house of accused-appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.[138] Apropos is our ruling in People v. Aminnudin,[139] viz: "The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some criminals should escape than that the government should play an ignoble part.' It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself."[140] Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit: "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. x x x."

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus delicti, as evidence in court.[141] The prosecution has clearly established the fact that in consideration of P1,600.00 which he received, accusedappellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accusedappellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed.[142] IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is reversed and modified as follows: 1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five hundred thousand pesos (P500,000.00). 2. Accused-appellant Violeta Gaddao y Catama is acquitted. SO ORDERED.

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

GO VS CA

G.R. No. 101837 February 11, 1992 ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary

investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of nonavailability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty

of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a reinvestigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the

statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a

careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED.

UMIL VS RAMOS

G.R. No. 81567 October 3, 1991 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. G.R. Nos. 84581-82 October 3, 1991 AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents. G.R. Nos. 84583-84 October 3, 1991 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents. G.R. No. 83162 October 3, 1991 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents. G.R. No. 85727 October 3, 1991 IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents. G.R. No. 86332 October 3, 1991 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa,

Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO,respondents. Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162. Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82 Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84. Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727. The Solicitor General for the respondents. RESOLUTION

PER CURIAM:p Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part: WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs. The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule as many misunderstood it to do that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing laws to the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people not the Court that should repeal, change or modify them. In their separate motions for reconsideration, petitioners, in sum, maintain: 1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested; 2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned; 3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New

People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions; 4. That the assailed decision is based on a misappreciation of facts; 5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic. We find no merit in the motions for reconsideration. It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released. In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law. There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which avalid arrest, without warrant, can be conducted. In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrest has committed it; and . . . (Emphasis supplied). The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . . Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained. Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter. Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person. It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11 These requisites were complied with in the Umil case and in the other cases at bar. In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the

said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twentytwo (22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12 Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural. In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources. As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113. Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921. As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court

during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities. More specifically, the antecedent facts in the "in flagrante" cases are: 1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16 2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group. 3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her.18 4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19 5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20 It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof. And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably

guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed. With all these facts and circumstances existing before, during and after the arrest of the aforenamed persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved. For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities. In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23 The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions. In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things: Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition. Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 8868385) has been provisionally dismissed and his bail bond cancelled. In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29 Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight. As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows: . . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731. On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition. At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him). This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests. Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed). Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission. In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her. The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits. As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into and all other appropriate courts are enjoined to do the same the legality

of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence. A Final Word This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right. ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL. SO ORDERED. Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.

PEOPLE VS MALMSTEDT

G.R. No. 91107 June 19, 1991 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MIKAEL MALMSTEDT, *defendant-appellant. The Solicitor General for plaintiff-appellee. Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:p In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual background of the case is as follows: Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985. In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days. At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902. 1 At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs. 2 The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof. During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana. Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier. Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally presented his passport. Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis. In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act. During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station. Likewise, accused alleged that when the NARCOM officers demanded for his passport and other Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion who brought the bag outside the bus. When said officer came back, he charged the accused that there was hashish in the bag. He was told to get off the bus and his picture was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise such defense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag. In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended. 3 The dispositive portion of the decision reads as follows: WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the costs. Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as amended. SO ORDERED. 4 Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. 5 However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances. 6 Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a 17a). Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest. 7 While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. 8 The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case. 9 Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, 10or where the accused was acting suspiciously, 11 and attempted to flee. 12 Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City. When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, 13 the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant. It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED. Costs against the accused-appellant. SO ORDERED. Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Sarmiento, J., is on leave.

PEOPLE VS AMINNUDIN

G.R.No. 74869 July 6, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. The Solicitor General for plaintiff-appellee. Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accusedappellant, who was eventually convicted . 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he

parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accusedappellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows: Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984?

A Yes, sir. Q When did you receive this intelligence report? A Two days before June 25, 1984 and it was supported by reliable sources. Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? A Yes, sir. Q Did you receive any other report aside from this intelligence report? A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. COURT: Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. Q What were those activities? A Purely marijuana trafficking. Q From whom did you get that information? A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person. Q But you received it from your regular informer? A Yes, sir.

ATTY. LLARIZA: Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? A Marijuana, sir. Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? A Not a report of the particular coming of Aminnudin but his activities. Q You only knew that he was coming on June 25,1984 two days before? A Yes, sir. Q You mean that before June 23, 1984 you did not know that minnudin was coming? A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff. COURT: Q And as a result of that report, you put him under surveillance? A Yes, sir. Q In the intelligence report, only the name of Idel Aminnudin was mentioned? A Yes, sir. Q Are you sure of that? A On the 23rd he will be coming with the woman. Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? A No, more. Q Why not? A Because we were very very sure that our operation will yield positive result. Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? A Search warrant is not necessary. 23 That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: 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. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high- handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered. Narvasa, Gancayco and Medialdea, JJ., concur.

PEOPLE VS TUAL

AGBAY VS OMBUDSMAN JASPER AGBAY, petitioner, vs. THE HONORABLE DEPUTY OMBUDSMAN FOR THE MILITARY, SPO4 NEMESIO NATIVIDAD, JR. and SPO2 ELEAZAR M. SOLOMON, respondents. DECISION GONZAGA-REYES, J.: This petition for certiorari seeks to nullify the Resolution of the Deputy Ombudsman for the Military dated 19 January 1998[1] which recommended the dismissal of the criminal complaint filed by petitioner against herein private respondents for violation of Article 125 of the Revised Penal Code for delay in the delivery of detained persons, and the Order of April 13 1998[2] which denied his motion for reconsideration. The pertinent facts leading to the filing of the petition at bar are as follows: On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot, was arrested and detained at the Liloan Police Station, Metro Cebu for an alleged violation of R.A. 7610, the Special Protection of Children Against Child abuse, Exploitation and Discrimination Act. [3] The following day, or on September 8, 1997, a Complaint for violation of R.A. 7610 was filed against petitioner and Jugalbot before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu by one Joan Gicaraya for and in behalf of her daughter Gayle[4] The complaint, insofar as pertinent, reads as follows: That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan, Metro Cebu, Philippines and within the Preliminary Jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, feloniously and unlawfully, conspiring, confederating, helping with one another, while accused JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA AMIGABLE GICAYARA, his companion block the sight of the Private Complainant, Mrs. JOAN A. GICAYARA, while on board a tricycle going their destinations. Upon initial investigation of the Bgy, Captain of Bgy. Catarman, accused SHERWIN JUGALBOT was released and accused JASPER AGBAY is presently detain Liloan Police Station Jail. Medical Certificate issued from Don Vicente Sotto Memorial Medical Center, Cebu City is hereto attached. On September 10, 1997, counsel for petitioner wrote the Chief of Police of Liloan demanding the immediate release of petitioner considering that the latter had failed to deliver the detained Jasper Agbay to the proper judicial authority within thirty-six (36) hours from September 7, 1997.[5] Private respondents did not act on this letter and continued to detain petitioner.[6] On September 12, 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu issued an order, denominated as Detention During the Pendency of the Case, committing petitioner to the jail warden of Cebu City.[7] Five (5) days later, or on September 17, 1997, petitioner was ordered released by the said court after he had posted bond.[8] On September 26, 1997, petitioner filed a complaint for delay in the delivery of detained persons against herein private respondents SPO4 Nemesio Natividad, Jr., SPO2 Eleazar M. Salomon and other unidentified police officers stationed at the Liloan Police Substation, before the Office of the Deputy Ombudsman for the Visayas.[9]

Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a resolution containing the following dispositive portion: WHEREFORE, finding probable cause for the crime in Violation of Republic Act 7610, it is hereby recommended that an INFORMATION be filed against the two aforenamed accused. Forward the record of this case to the Provincial Fiscals Office for appropriate action.[10] By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October 1995 of the Office of the Ombudsman,[11] the case for delay in delivery filed by petitioner against herein private respondents before the Deputy Ombudsman for the Visayas was transferred to the Deputy Ombudsman for the Military for its proper disposition. Thus, it was this office which acted on the complaint, now denominated as OMB-VIS-CRIM-97-0786, and which issued the questioned Resolution dated January 19, 1998 recommending its dismissal against herein private respondents. Petitioner moved for reconsideration of this Resolution but this motion was denied in an Order dated April 13, 1998. Hence, this petition for certiorari. The grounds relied upon in the present petition[12] are as follows: I. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN RELYING ON MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED 10 OCTOBER 1995, OF THE OFFICE OF THE OMBUDSMAN IN HOLDING THAT IT HAS COMPETENCE TO ACT ON THE ABOVE-ENTITLED CASE BEFORE IT, THE SAID CIRCULAR BEING UNCONSTITUTIONAL AND ILLEGAL, HENCE, NULL AND VOID. II. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT HOLDING THAT IT IS BEYOND ITS COMPETENCE TO DETERMINE WHETHER OR NOT THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOAN-COMPOSTELA HAS IN FACT NO JURISDICTION TO TRY THE CASE FILED AGAINST HEREIN PETITIONER. III. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT HOLDING THAT THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A PRELIMINARY INVESTIGATION, IS NOT THE PROPER JUDICIAL AUTHORITY CONTEMPLATED IN ARTICLE 125 OF THE REVISED PENAL CODE AND, HENCE, THE FILING OF THE COMPLAINT BEFORE IT FOR THE PURPOSE OF CONDUCTING A PRELIMINARY INVESTIGATION DID NOT INTERRUPT THE PERIOD PRESCRIBED BY ART. 125. IV. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLIDING THAT THE ISSUE OF THE VALIDITY OF THE ORDER OF DETENTION IS IRRELEVANT TO THE ISSUE

OF CRIMINAL LIABILITY OF PRIVATE RESPONDENTS FOR DELAY IN THE DELIVERY OF DETAINED PERSONS. V. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLDING THAT THE DUTY OF PRIVATE RESPONDENTS TO FILE THE NECESSARY COMPLAINT IN COURT WAS FULFILLED WHEN THEY FILED A FORMAL COMPLAINT ON 8 SEPTEMBER 1997 WITH THE 7TH MCTC OF LILOAN-COMPOSTELA. On the first issue, petitioner argues that due to the civilian character of the Philippine National Police, the Office of the Deputy Ombudsman for the Military, by virtue of the description of the Office, has no competence or jurisdiction to act on his complaint against private respondents who are members of the PNP. Petitioner also questions the constitutionality of Memorandum Circular No. 14 insofar as it purports to vest the Office of the Deputy Ombudsman for Military Affairs with jurisdiction to investigate all cases against personnel of the Philippine National Police. There is no dispute as to the civilian character of our police force. The 1987 Constitution, in Section 6, Article XVI, has mandated the establishment of one police force, which shall be national in scope and civilian in character (underscoring supplied). Likewise, R.A. 6975[13] is categorical in describing the civilian character of the police force.[14] The only question now is whether Memorandum Circular No. 14, in vesting the Office of the Deputy Ombudsman for the Military with jurisdiction to investigate complaints against members of the PNP, violates the latters civilian character. As opined by the Office of the Solicitor General in its Comment dated 7 December 1998[15], the issue as to whether the Deputy Ombudsman for the Military has the authority to investigate civilian personnel of the government was resolved in the affirmative in the case of Acop v. Office of the Ombudsman.[16] In that case, the petitioners, who were members of the Philippine National Police questioned the jurisdiction of the Deputy Ombudsman to investigate the alleged shootout of certain suspected members of the Kuratong Baleleng robbery gang; this Court held that: The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. On the contrary, a review of the relevant Constitutional provisions reveal otherwise. As previously established, the Ombudsman `may exercise such other powers or perform such functions or duties as Congress may prescribe through legislation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsmans deputies, one being the deputy for the military establishment. In this light, Section 11 of R.A. No. 6770 provides: SEC. 11. Structural Organization.- The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its powers and functions shall be vested in the Ombudsman, who shall have supervision and control of the said Office. While Section 31 thereof declares:

SEC, 31. Designation of Investigators and Prosecutors.- The Ombudsman may utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein shall be under his supervision and control. Accordingly, the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. In these cases at bench, therefore, no irregularity attended the referral by the Acting Ombudsman of the Kuratong Baleleng case to respondent Casaclang who, in turn, created a panel of investigators.[17] The cited case is determinative of the issue. However, petitioner, in his Reply to Comment dated February 1, 1999, argues that the ruling in the Acop case is not on all fours with the case at bar[18]. Petitioner states that the doctrine laid down in the said case is simply that the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. This doctrine, petitioner argues, applies only to isolated or individual cases involving non-military personnel referred by the Ombudsman to the Deputy for Military Affairs and does not apply when, as in this case, there is a wholesale or indiscriminate referral of such cases to the Deputy Ombudsman for Military Affairs in the form of an Office Memorandum Circular. Petitioners arguments do not convince as there is no basis for the distinction. There is no basis in the above-cited decision to limit the referral of cases involving nonmilitary personnel to the Deputy Ombudsman for Military Affairs to isolated or individual cases. The Office of the Ombudsman, in issuing Memorandum Circular No. 15, is simply exercising the power vested in the Ombudsman to utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. This Court, absent any grave abuse of discretion, may not interfere with the exercise by the Ombudsman of his power of supervision and control over the said Office. Petitioner further argues that Memorandum Circular No. 14 violates the clear intent and policy of the Constitution and of R.A. 6975 to maintain the civilian character of the police force and would render nugatory and meaningless the distinction between cases involving civilian and military personnel and the creation of separate divisions of the Ombudsman.[19] Said contentions are misplaced. The Deputy Ombudsman for the Military, despite his designation as such, is by no means a member of the military establishment. The said Office was established to extend the Office of the Ombudsman to the military establishment just as it champions the common people against bureaucratic indifference. The Office was intended to help the ordinary foot soldiers to obtain redress for their grievances against higher authorities and the drafters of the Constitution were aware that the creation of the Office, which is seemingly independent of the President, to perform functions which constitutionally should be performed by the President, might be in derogation of the powers of the President as Commander-In-Chief of the Armed Forces[20] It must be borne in mind that the Office of the Ombudsman was envisioned by the framers of the 1987 Constitution as the eyes and ears of the people[21] and a champion of the citizen.[22] Sec. 12, Art. XI of the 1987 Constitution describes the Ombudsman and his deputies as protectors of the people. Thus, first and foremost, the Ombudsman and his deputies, including the Deputy Ombudsman for the Military owe their allegiance to the people and ordinary citizens; it is clearly not a part of the military. We fail to see how the assumption of

jurisdiction by the said office over the investigation of cases involving the PNP would detract from or violate the civilian character of the police force when precisely the Office of the Ombudsman is a civilian office. The other issues raised by petitioner concerns the application of Art. 125 of the Revised Penal Code which provides as follows: Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six hours (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel. In the case at bar, petitioner was arrested and detained at the Liloan Police Station on 7 September 1997 for an alleged violation of R.A. 7610, specifically section 5(b) thereof[23]. This crime carries a penalty of reclusion temporal in its medium period to reclusion perpetua, an afflictive penalty. Under these circumstances, a criminal complaint or information should be filed with the proper judicial authorities within thirty six (36) hours of his arrest. As borne by the records before us the mother of private complainant, Joan Gicaraya, filed a complaint on 8 September 1997 against petitioner for violation of R.A. 7610 before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu. Petitioner contends that the act of private complainant in filing the complaint before the MCTC was for purposes of preliminary investigation as the MCTC has no jurisdiction to try the offense. This act of private complainant petitioner argues, was unnecessary, a surplusage which did not interrupt the period prescribed by Art. 125[24] considering that under the Rules it is the Regional Trial Court which has jurisdiction to try the case against him. As such, upon the lapse of the thirty-six hours given to the arresting officers to effect his delivery to the proper Regional Trial Court, private respondents were already guilty of violating Art. 125. Thus, petitioner argues, when the Judge-Designate of the 7th MCTC issued a Commitment Order on September 12, 1997, he was acting contrary to law since by then there was no basis for the continued detention of petitioner.[25] In addressing the issue, the Office of the Deputy Ombudsman for the Military in its 13 April 1998 Order, stated that the duty of filing the corresponding complaint in court was fulfilled by respondent when the formal complaint was filed on September 8, 1997 with the 7th MCTC of Liloan-Compostela, barely 20 hours after the arrest of herein complainant of September 7, 1997.[26] The Solicitor General, for his part, argues that while a municipal court judge may conduct preliminary investigations as an exception to his normal judicial duties, he still retains the authority to issue an order of release or commitment. As such, upon the filing of the complaint with the MCTC, there was already compliance with the very purpose and intent of Art. 125[27] The core issue is whether the filing of the complaint with the Municipal Trial Court constitutes delivery to a proper judicial authority as contemplated by Art. 125 of the Revised Penal Code.

Article 125 of the Revised Penal Code is intended to prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail[28]. More specifically, it punishes public officials or employees who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the periods prescribed by law. The continued detention of the accused becomes illegal upon the expiration of the periods provided for by Art. 125 without such detainee having been delivered to the corresponding judicial authorities[29] The words judicial authority as contemplated by Art. 125 mean the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, the Sup reme Court and other such inferior courts as may be established by law.[30] Petitioner takes great pains in arguing that when a municipal trial court judge, as in the instant case, conducts a preliminary investigation, he is not acting as a judge but as a fiscal. In support, petitioner cites the cases ofSangguniang Bayan ng Batac, Ilocos Norte vs. Albano, 260 SCRA 561, and Castillo vs. Villaluz, 171 SCRA 39, where it was held that when a preliminary investigation is conducted by a judge, he performs a non-judicial function as an exception to his usual duties. Thus, petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862, that the city fiscal is not the proper judicial authority referred to in Art. 125 is applicable. Petitioners reliance on the cited cases is misplaced. The cited cases of Sangguniang Bayan and Castillo dealt with the issue of whether or not the findings of the Municipal Court Judge in a preliminary investigation are subject to review by provincial and city fiscals. There was no pronouncement in these cases as to whether or not a municipal trial court, in the exercise of its power to conduct preliminary investigations, is a proper judicial authority as contemplated by Art. 125. Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of Police, supra, since the facts of this case are different. In Sayo, the complaint was filed with the city fiscal of Manila who could not issue an order of release or commitment while in the instant case, the complaint was filed with a judge who had the power to issue such an order. Furthermore, in the Resolution denying the Motion for Reconsideration of the Sayocase[31], this Court even made a pronouncement that the delivery of a detained person is a legal one and consists in making a charge or filing a complaint against the prisoner with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing by the city fiscal of an information with the corresponding city courts after an investigation if the evidence against said person warrants. The power to order the release or confinement of an accused is determinative of the issue. In contrast with a city fiscal, it is undisputed that a municipal court judge, even in the performance of his function to conduct preliminary investigations, retains the power to issue an order of release or commitment[32]. Furthermore, upon the filing of the complaint with the Municipal Trial Court, the intent behind Art. 125 is satisfied considering that by such act, the detained person is informed of the crime imputed against him and, upon his application with the court, he may be released on bail[33]. Petitioner himself acknowledged this power of the MCTC to order his release when he applied for and was granted his release upon posting bail[34]. Thus, the very purpose underlying Article 125 has been duly served with the filing of the complaint with the MCTC. We agree with the position of the Ombudsman that such filing of the complaint with the MCTC interrupted the period prescribed in said Article. Finally, we note that it was the mother of private complainant who filed the complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If there was any error in this

procedure, private respondents should not be held liable. In the same manner, petitioners argument that the controversial orders issued by the MCTC are contrary to law does not give rise to criminal liability on the part of the respondents. Respondent police officers may have rendered themselves open to sanctions if they had released petitioners without the order of the court, knowing fully well that a complaint was already filed with it. WHEREFORE, finding no grave abuse of discretion in the issuance of the assailed January 19, 1998 Resolution and the April 13, 1998 Order of the Office of the Deputy Ombudsman for the Military, the Court resolves to DISMISS the petition. No pronouncement as to costs. SO ORDERED. Vitug, (Acting Chairman), Panganiban, and Purisima, JJ., concur. Romero, J., abroad, on official business leave.

PEOPLE VS FIGUEROA

G.R. No. L-24273

April 30, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. PEDRO FIGUEROA, BOY AHIJAL, CELEDONIO CARINGAL, KARIM JAUKAL, RAJAH MAHAMMAD, MUSTALI GAJALI, ALI MAHAMMAD, STAJI BADTANG and ENTAS BAANG, defendants-appellees. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro and Solicitor Conrado T. Limcaoco for plaintiff-appellant. Jesus M. Dator for defendants-appellees. TEEHANKEE, J.: Appeal by the State from the Order of the Court of First Instance of Palawan sustaining the motion to quash the information on the ground that in the Court's opinion, the accused were not given ample chance and opportunity to be heard in the preliminary investigation conducted by the investigating fiscal. The accused were apprehended on December 13, 1964 by officers and crew of the Philippine Navy RPS "Antique" off the island of Tara within the province of Palawan, having in their possession and custody, aboard the kumpit M/L "Pershia" three hundred eighty-eight cases (of 50 cartons per case) of "Old Gold" blue seal cigarettes, without first having paid the Government the specific taxes due thereon in the amount of P102,432.00. The accused with their cargo were brought to Philippine Navy Headquarters at Manila, where they were investigated on December 14, 1964 by investigating officers of the Naval Judge Advocate General and before whom they individually executed affidavits in question and answer form. All nine accused admitted the fact of their having been apprehended off Tara Island aboard the kumpit loaded with the untaxed cigarettes, which they had gotten from Jolo, Sulu and which, according to the patron of the vessel, Pedro Figueroa, he was taking to Hulugan, Tanza, Cavite to sell there. 1 Provincial Fiscal Zoilo Alviar of Palawan later on the same day showed up at the Navy Headquarters and conducted a preliminary investigation, taking the sworn written statements of the arresting officers, among them Servicemen Rodolfo Baltazar and Esteban Sumil,2 as well as of the accused. The accused jointly executed a statement stating that they knew they would have to face criminal charges before the Court as a result of their apprehension, that they were agreeable to Fiscal Alviar conducting the preliminary investigation of their case in Manila and that they were waiving the provision of Section 125 of the Revised Penal Code, as follows: SA SINUMANG KINAUUKULAN: Kaming nakalagda sa ibaba ay nagsasabing kami ay nahuli ng sasakyang dagat ng Philippine Navy sa dagat na pumapaligid sa isla ng Tara, malapit sa Busuanga, Palawan sa umaga ng December 13, 1964; Na hinuli kami dahil sa ang aming sasakyang dagat (Unnamed) ay kinapapalagyan ng mga sigarilyong blue seal nangangahulugang walang bayad ng tax sa BIR;

Na nalalaman naming dahil sa pagkakahuli sa amin ay mapapaharap kami sa husgado upang harapin ang sakdal laban sa amin; Nang dahil dito, kami ay sumasangayon na humarap sa Provincial Fiscal ng Palawan, si Fiscal ZOILO Q. ALVIAR, dito rin sa Maynila at makunan ng karapatang "preliminary investigation" sang ayon sa batas ng korte suprema (Rules of Court); Upang mabigyan ng kaukulang panahon ang nasabing Fiscal, ay pumapayag kaming itatwa ang aming karapatang sang-ayon sa Sec. 125 ng kodigo penal na naguutos sa sinumang opisyal ng gobierno na dalhin ang sinumang tao, na nahuli hinggil sa isang paglabag sa batas, sa opisyal ng husgado (judicial authorities) sa loob ng anim na oras. Maynila, December 14, 1964. Fiscal Alviar then interrogated the accused individually, confronted them with their affidavits in the presence of the arresting officers Servicemen Baltazar and Sumil and had the accused identify their respective affidavits and signatures thereon; the accused testified further that the contents of their affidavits were explained to them and that the facts stated therein were true; the fiscal further asked them whether they had any questions to ask from Servicemen Baltazar and Sumil to which they replied in the negative.3 On the next day, December 15, 1964, Fiscal Alviar sent from Manila a telegram to his assistant at Puerto Princesa, Palawan, stating that he had conducted a preliminary investigation in Manila and instructing his assistant to file the corresponding information for illegal possession of the untaxed 388 cases of cigarettes against the accused.4 On the following day, December 16, 1964, Fiscal Alviar wrote a letter to Assistant Fiscal R. Abaca, stating that the accused would be brought by the Philippine Navy to Puerto Princesa by the same arresting officers, Servicemen Baltazar and Sumil. He suggested to his assistant that while he had already conducted a preliminary investigation in Manila, the latter should conduct still another investigation in Puerto Princesa, by asking all of the respondents and the arresting officers to identify and affirm the truth and correctness of their previous sworn statements given before Fiscal Alviar in Manila, "to obviate any technical defect of the preliminary investigation that I conducted."5 This was what Assistant Fiscal Abaca did upon the arrival of the accused and the arresting officers at Puerto Princesa on December 19, 1964, at 8:15 A.M.6 He advised the accused that they were entitled to counsel,7 but they declined and readily reaffirmed their previous sworn statements before Fiscal Alviar in Manila.8 Their sworn statements to this effect were again taken down in writing before Assistant Fiscal Abaca, who thereafter filed on the same day, December 19, 1964, the corresponding information for violation of Section 174 in relation to Section 183 of the National Internal Revenue Code, as amended by Republic Act No. 4097.9 The information bore the earlier date of December 16, 1964 but was subscribed and sworn and filed in court on December 19, 1964 by Fiscal Abaca. Fiscal Abaca later stated under oath at the hearing that he prepared the information on December 19, 1964 and that the date of December 16, appearing on the information was but a clerical error.10 The accused Pedro Figueroa and Celedonio Caringal posted bail, while their coaccused remained under detention, and the case was scheduled for arraignment on January 19, 1966. On January 11, 1965, counsel for the accused filed a Motion to Quash, alleging that in violation of Section 14, Rule 112 of the new Rules of Court, the information against the accused

was "filed by the Provincial Fiscal without conducting a preliminary investigation or if there was any, it was conducted in Manila and not in Palawan, the province where the alleged crime was committed."11 The motion was heard on the next day and Fiscal Alviar filed a written opposition where he informed the Court that "According to the records of this case 2nd Assistant Provincial Fiscal Abaca conducted a preliminary investigation on December 19, 1964, in which investigation he interrogated the witnesses for the prosecution as well as the accused under oath and recorded their testimonies.... In their statements, both the prosecution witnesses and those of the accused, all admitted and affirmed the truth and correctness of their statements which were shown to them and were read to them by the investigating Fiscal, Fiscal Abaca. Although these statements that were referred to in the investigation conducted by Assistant Provincial Fiscal Abaca, were taken by Provincial Fiscal Alviar in the City of Manila, this fact makes no difference in the validity of the preliminary investigation conducted by 2nd Assistant Provincial Fiscal Abaca, because the witnesses were only reiterating before him what they have already testified to before Fiscal Alviar. There can be irregularity in the investigation conducted by 2nd Assistant Provincial Fiscal Abaca, by the mere fact that instead of retaking their statements, he showed and read to them their previous statements and asked each and every one of them whether, these were their statements and whether they affirm the truth and correctness of the fact stated, in which case, they all acknowledged that those were their statements and each affirmed the truth thereof. In said investigation, the accused did not raise any defense nor adduce any fact to exculpate them. Under these circumstances, there is no ground to say that accused were not given a chance to be heard or any opportunity to interpose their defenses in the preliminary investigation." 12 Fiscal Alviar further presented to the Court the records of the investigation of the accused.13lawphi1.ntNotwithstanding all these, the lower court took the extraordinary step of placing Assistant Fiscal Abaca on the stand, questioned him extensively14 and likewise had him cross-examined extensively by defense counsel,15 at the end of which he announced the granting of the motion to quash, denied summarily the fiscal's motion for reconsideration, and there after dictated in open court his order, dismissing the information and ordering the Fiscal "to conduct a new preliminary investigation in this case in order to afford the accused all the chances to be heard in the preliminary investigation." The pertinent portions of his Order read: It appears that a preliminary investigation of this case was conducted by the Provincial Fiscal in Manila. Then the accused were brought to Puerto Princesa, by the apprehending officers on December 19, 1964. The Provincial Fiscal sent a telegram to First Assistant Provincial Fiscal Miclat, Exh. "A", requesting him to file a rush case of Illegal Possession of Smuggled Goods against the herein accused, which telegram was received by Second Assistant Provincial Fiscal Abaca who was then in charge of office in the absence of First Assistant Provincial Fiscal Miclat. The accused and the prosecution witnesses saw Fiscal Abaca on December 19, 1964. Lt. Hernandez of the Philippine Navy delivered to Fiscal Abaca a letter from Fiscal Alviar dated December 16, 1954 Exh. "1" which is self-explanatory. Right then on December 19, 1964, when the prosecution witnesses went to the office of the Provincial Fiscal, Fiscal Abaca supposedly conducted a preliminary investigation. The first questions appearing in the statement of the prosecution witnesses were the very questions which were suggested by Fiscal Alviar to Fiscal Abaca in his letter to him Exh. "1". After the investigation of the prosecution witnesses, the accused were investigated also. The investigation was made hurriedly on the understanding of the investigating Fiscal that they were under custody. There is no showing at all whether they waived their rights to Section 125 of the Revised Penal Code or not to warrant an immediate preliminary investigation without giving the accused the chance to prepare. Besides, the Fiscal, in the opinion of the Court, was of the notion that the investigation made in Manila was sufficient as could be gleaned from the telegram Exh "A".

xxx

xxx

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From the facts obtaining in this case, the Court is of the opinion, and so holds, that the accused in this case were not given ample chance and opportunity to be heard in the preliminary investigation which is against the provisions of Sec 14, Rule 112 of the Rules of Court. Honestly speaking, the Court believes that Sec. 14 of Rule 112 of the Rules of Court has not been substantially complied with by the investigating Fiscal.16 We hold the lower court's order quashing the information for lack of substantial compliance with Section 14 of Rule 112 of the Rules of Court to be patently erroneous and set it aside.lawphi1.nt 1. Assuming that the trial court felt that the accused should have been given more "ample chance and opportunity to be heard in the preliminary investigation", then what it could properly have done, since in its own Order it recognized that Fiscal Abaca had conducted a preliminary investigation although "hurriedly" in its opinion, was not to dismiss the information but to hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. This Court, speaking through now Mr. Chief Justice Concepcion in People vs. Casiano,17 had stressed this as the proper procedure, pointing out that "the absence of such investigation did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First Instance over the present case." 2. The record amply shows, however, that in compliance with the requirements of Rule 112, section 14 on preliminary investigations by provincial or city, fiscals or state attorneys, the assistant fiscal of Palawan conducted the investigation in the presence of the arresting officers and the accused18 and afforded them "the right to be heard, to cross-examine the complainant and his witnesses, and to adduce evidence in (their) favor." The fiscal duly advised respondents of their right to counsel but the accused chose merely to reiterate their sworn statements previously given before Fiscal Alviar in Manila, and their affirmation thereof under oath was duly taken down in writing before the fiscal. The accused chose not to raise any defense nor adduce any evidence to exculpate themseIves. The fact that the questions asked by the fiscal of the prosecution witnesses and the accused "were the very questions which were suggested by Fiscal Alviar to Fiscal Abaca in his letter to him, Exh. '1'", i.e. to affirm the truth and correctness of their previous statements, did not affect the validity and regularity of the investigation proceedings. Where a witness or accused has previously given a statement, it is a perfectly valid procedure often availed of to avoid needless waste of time to just ask him whether he affirms the same statement and the truth and correctness of the contents thereof. To require the investigating fiscal to repeat the same questions asked of, and answered by, the complaining witnesses and the accused in their previous testimonies before Fiscal Alviar, as the lower court would apparently indicate as the appropriate procedure would have served no useful purpose nor added a whit of evidence as to the reasonable probability of the guilt of the accused, for purposes of the filing of the information, in the light of their statements admitting their apprehension in flagrante delicto for possession of the untaxed cigarettes, which statements remain unrepudiated by them. There was no basis, therefore, for the lower court's finding that the investigating fiscal had failed to substantially comply with the requirements of Rule 112, section 14 of the Rules of Court. 3. The lower Court's finding that "there is no showing at all whether (the accused) waived their rights to Section 125 of the Revised Penal Code or not to warrant an immediate preliminary investigation without giving the accused the chance to prepare" is not borne out by the record.

The joint waiver executed by the accused is reproduced hereinabove,19 and the investigating fiscal had precisely informed the Court that "(N)otwithstanding such waiver the investigation must be terminated within seven days from its inception, so that in this case there is that element of expediency. If we will have the investigation later, the accused have to be released"20 pursuant to Section 15 of Rule 112, which provides: SEC. 15. Investigation of person in custody. Where the accused is detained without a warrant for his arrest, he may ask for a preliminary investigation by a proper officer in accordance with the preceding sections, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. Notwithstanding such waiver the investigation must be terminated within seven (7) days from its inception. If the case has already been filed in court and no preliminary investigation has been conducted by the fiscal because the accused has not made the waiver referred to in the preceding paragraph, the accused may, within a period of five (5) days from the time he learns of the filing of the information, ask for a reinvestigation thereof with the same right to crossexamine the witnesses against him and adduce evidence in his favor. The immediate and "hurried" investigation conducted on December 19, 1964 by the investigation fiscal in Puerto Princesa, considering that the accused were under detention by virtue of their lawful arrest on December 13, 1964 was but in compliance with the requirements of the abovequoted rule.21 4. But assuming that the lower Court had correctly found that there was no waiver by the accused of the provisions of Section 125 of the Revised Penal Code, neither would it have been justified in dismissing the information. For Rule 112, section 15 expressly authorizes the fiscal to immediately file the case in court against a detained person arrested without a warrant, without conducting a preliminary investigation, where the accused has not made such waiver. The right granted by the Rule to the accused in such cases is "within a period of five (5) days from the time he learns of the filing of the information, (to) ask for a reinvestigation thereof with the same right to cross-examine the witnesses against him and adduce evidence in his favor." This, the accused failed to do, for the information against them was filed on December 19, 1964 and they did not ask for such reinvestigation within a 5-day period thereafter. Their Motion to Quash was filed much later only on January 11, 1965. 5. The lower Court erred in choosing to believe against the uncontradicted sworn testimony of the investigating fiscal that the information was prepared on December 16, 1964, three days before it was actually subscribed and filed with the Court. It refused to believe the fiscal's explanation that the date "16" appearing oil the information was a typographical error ... because if it was really so the subscribing fiscal should have corrected it." But such overlooked typographical errors do occur frequently. At any rate, this was a mere triviality which was of no relevance to the issues. The information was not complete until it was subscribed together with the fiscal's sworn certification "on December 19, 1964, the date when the preliminary investigation was conducted", as held by the Court itself in its Order. 6. This Court finds also that the procedure adopted by the lower court of placing the investigating fiscal on the witness stand and subjecting him to cross-examination by defense counsel was highly improper. Aside from the sworn certification in the information by the investigating fiscal that he had duly conducted a preliminary investigation, the entire record of the investigation with the sworn statements of the complaining witnesses and the accused had

been presented to the Court. The lower Court may have had its reasons for directing questions to the fiscal to satisfy itself that the accused's rights had been duly safeguarded, such as giving them a chance to cross-examining the complaining witnesses. But to have the fiscal placed on the witness stand and have the defense counsel cross-examine and argue with him on points of law, as to whether the affirmation by the arresting officers and the accused of their previous testimonies without retaking them was sufficient compliance with the Rules of Court and impertinent questions as to whether "the statement of the Philippine Navy as complainant" was taken, was uncalled for. The lower Court disregarded the presumption that official duty has been regularly performed22 and the well-settled rule that when nothing appears affirmatively on the record that a preliminary investigation was not in fact held, an objection on the ground of denial or deprivation thereof deserves scant consideration by virtue of the presumption that both the court as well as the prosecution proceeded in accordance with law.23 Certainly, defense counsel must first overcome the presumption of regularity in the performance of official duty and present strong prima facie evidence of irregularity or falsification of the investigating fiscal's certification and record of the investigation for the Court to deny them the faith and credence properly due them. 7. A final word on the summary nature of preliminary investigation proceedings seems appropriate, in order to obviate the recurrence of these cases, where the State's efforts at great expense and zeal to thwart traffickers in smuggled goods who undermine the national economy are frustrated by a distorted view of the nature and purpose of preliminary investigations. The late Mr. Justice Jose P. Laurel, speaking for this Court in 1941, placed the role and object of preliminary investigations in proper perspective, thus "... Its oft-repeated purpose is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions. The new Rules were drafted in the light of the Court's experience with cases where preliminary investigations had dragged on for weeks and even months. The Court had intended to remove this clog upon the judicial machinery and to make a preliminary investigation as simple and as speedy as is consistent with the substantial rights of the accused. The investigation is advisedly called preliminary, to be followed by the trial proper. The investigating judge or prosecuting officer acts upon probable-cause and reasonable belief, not upon proof beyond a reasonable doubt. The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. When all this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial...."24 ACCORDINGLY, the order appealed from is hereby set aside and the lower Court is directed to proceed with the arraignment and trial of the accused upon the information filed in the case. With costs in solidum against defendants-appellees. Dizon, Makalintal, Zaldivar, Sanchez, Fernando and Barredo, JJ., concur. Capistrano, J., took no part. Reyes, J.B.L., Actg. C.J., concurs and certifies that Mr. Chief Justice Concepcion and Mr. Justice Fred Ruiz Castro voted for the setting aside of the order appealed from and the remanding of the case to the lower court for further proceedings in accordance with the decision.

PEOPLE VS CA

G.R. No. 116623 March 23, 1995 PEOPLE OF THE PHILIPPINES and HONORABLE ALFREDO GUSTILO, petitioners, vs. COURT OF APPEALS and ESAM GADI y ABDULLAH, respondents. RESOLUTION

FELICIANO, J.: Petitioners assail a Decision of the Court of Appeals which reversed the Regional Trial Court, Branch 116, of Pasay city and granted the motion for reinvestigation of private respondent Esam Gadi. On 31 December 1993, Esam Gadi, a national of Saudi Arabia, was apprehended at the Manila International Airport and subsequently detained for possession of marijuana. On 3 January 1994, an information was filed and docketed as Criminal Case No. 94-4826 in the Regional Trial Court, Branch 116, Pasay City charging Esam Gadi with violation of section 81 Article 11, of the Dangerous Drugs Act, as amended. Three (3) days later, on 6 January 1994, Esam Gadi filed an "Ex Parte Motion to Reduce Bail," from P90,000.00 to P30,000.00. This Motion was denied. Esam Gadi then posted a cash bond of P90,000.00 which was approved by the trial court on 10 January 1994. On 9 February 1994, Esam Gadi filed a motion for "reinvestigation," 1 claiming that the seriousness of the offense charged warranted the grant of his motion. Admitting that this motion was filed beyond the five-day period prescribed in Section 7, Rule 112 of the Rules of Court, 2 he contended that the reglementary period was not mandatory. Section 7, Rule 112 of the Rules of Court provides: Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully arrested without a warrant for an offensecognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having first been conducted, on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-

availability of a lawyer, a responsible person of his own choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) The motion for "reinvestigation" was denied by the trial court. A motion for reconsideration was likewise turned down on 8 March 1994, the date of his arraignment where Esam Gadi pleaded not guilty. He then challenged the denial of his motion for "reinvestigation" in a petition for certiorari before the Court of Appeals. The Court of Appeals granted the petition and reversed the trial court Order denying reinvestigation. Citing Tan vs. Securities Exchange Commission, 3 the Court of Appeals held that the five-day period for asking reinvestigation was only permissive, considering the use of the word "may." The appellate court also relied on Go vs. Court of Appeals" and held that a motion for preliminary investigation may be granted even if trial on the merits had begun, provided that the motion was filed before arraignment. In this Petition for Review, the Solicitor General contends that it is a mandatory rule that a motion for preliminary investigation be filed within five (5) days from the time the accused had learned of the filing of the information. It is also maintained that Esam Gadi had waived his right to preliminary investigation when he posted bail for his release. Deliberating on the Petition for Review and the Comment of private respondent, the Court finds that the Court of Appeals fell into reversible error in granting the motion for "reinvestigation" of private respondent. The period for filing a motion for preliminary investigation after an information has been filed against an accused who was arrested without a warrant has been characterized as mandatory by the Court. In People vs. Figueroa, 5the .Supreme Court applied Section 15, Rule 112 6 of the old Rules, which is substantially reproduced in Section 7, Rule 112 of the 1985 Rules of Criminal Procedure. The Court held that Section 15 of old Rule 112 granted the accused the right to ask for preliminary investigation within a period of five (5) days from the time he learned of the filing of the information. As the accused in that case did not exercise his right within the five-day period, his motion for "reinvestigation" was denied. 7 Clearly, Section 7 of Rule 112 of the present Rules gives the accused the right to ask for a preliminary investigation; but it does not give him the right to do so after the lapse of the five-day period. This is in accord with the intent of the Rules of Criminal Procedure to make preliminary investigation simple and speedy. The Supreme Court, elaborating on the rationale of the rules on preliminary investigation, held: The new Rules were drafted in the light of the Court's experience with cases where preliminary investigations had dragged on for

weeks and even months. The Court had intended to remove this clog upon the judicial machinery and to make a preliminary investigation as simple and speedy as is consistent with the substantial rights of the accused. The investigation is advisedly preliminary, to be followed by the trial proper. The investigating judge or prosecuting officer acts upon probable cause and reasonable belief, not upon proof beyond reasonable doubt. The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. When all this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial. 8 (Emphases supplied) The respondent Court of Appeals held, however, that the five-day period prescribed in Section 7, Rule 112 was not mandatory as the provision uses the permissive term "may." As already noted, the Court of Appeals cited Tan vs. Securities and Exchange Commission 9 where the Supreme Court held that the term "may" as used in adjective rules is only permissive and not mandatory. Tan, however, does not really support a ruling that the five-day period for asking for preliminary investigation of a person accused of crime is only permissive. Tan was concerned with "may" as used in a provision of theCorporation Code dealing with the transfer of shares of stock. Two (2) cases relied upon in Tan are equally inapplicable to the present case. In Shauf vs. Court of Appeals, 10 "may" was used in a U.S. federal statute on equal opportunity for civilian employment in U.S. military installations which enumerated the remedies of an aggrieved party. Holding that remedial statutes are to be construed liberally and that the term "may" as used in adjective rules was only permissive and not mandatory, our Supreme Court held that the substantive remedies of a party were not limited to those enumerated in that U.S. legislation. 11 In Legaspi vs. Estrella, 12 the Court had to interpret "may" as used in section 146 of Batas Pambansa Blg. 337 or the old Local Government Code. That term, being indicative of a "possibility" or an 'opportunity," was read as permissive rather than mandatory to avoid defeating the purpose of the law immediately to include sectoral representatives in the legislative councils of local government units. 13 While Tan and the cases there cited show that the use of the term "may" is indicative of an Opportunity or possibility, they cannot be used to support the proposition that the five-day period under section 7 of Rule 112 is not mandatory and may be disregarded at will. The "opportunity" or "possibility" engendered by the use of the term "may" in this rule relates only to the option of filing a motion for preliminary investigation; it does not refer to the filing of the motion after the expiration of the five-day period. This rule grants the accused a right or faculty and not an obligation. In the sense that he is not obliged to exercise this right, this rule is permissive only; in the sense that he may exercise this right only within the five-day period, the rule is mandatory. Put a little differently, Esam Gadi had the option or faculty of demanding preliminary investigation; if he wanted to exercise that option, however, he had to exercise it within the reglementary period. Upon expiration of that period, his option lapsed. Much the same situation obtains in respect of the period for filing a petition for review. Section 1, Rule 45 of the Rules of Court provides that:

Sec. 1. Filing of petition with Supreme Court. A party may appeal by certiorari from a judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari within fifteen (15) daysfrom notice of judgment or of the denial of his motion for reconsideration filed in due time, and paying at the same time, to the clerk of said court the corresponding docketing fee. The petition shall not be acted upon without proof of service of a copy thereof to the Court of Appeals. (Emphasis supplied) The use of "may" in Section 1 of Rule 45 refers only to the opportunity or option to file a petition for review. This, however, does not give a party a license to file a petition for review beyond the fifteen-day period. Hence, under Rule 45, Section 1, a petition for review filed after lapse of the fifteen-day period is not to be entertained. Innumerable petitions have been denied by the Court for having been filed unseasonably. The reliance of the Court of Appeals on the case of Rolito Go vs. Court of Appeals 14 is misplaced. In Go, as in the present case, an information was filed without a prior preliminary investigation of the accused. The accused in both cases demanded their right to a preliminary investigation before arraignment. The similarity between the two (2) cases ends there. There are, upon the other hand, critical differences in the fact situations in one and the other case which must not be overlooked. In Go, the accused asked for preliminary investigation on the very day the information was filed. In the present case, Esam Gadi did so only on 9 February 1994, or a month after he had learned of the filing of the informationagainst him. In the present case, Esam Gadi insists on the application of Section 7, Rule 112 in effect claiming or conceding there was a lawful warrantless arrest. It appears that the accused was apprehended while engaged in the commission of an offense, i.e, possession of marijuana punishable under Section 8, Article II of the Dangerous Drugs Act, as amended. In Go, the Court relied on the general rule that an information may be filed only after a preliminary investigation has been conducted. The Court did not apply Section 7, Rule 112 because there had been no arrest at all. The Court found that accused Rolito Go had merely walked into the police station in the company of his two lawyers and placed himself at the disposal of the police authorities. In fact, the Court did not consider his act as surrender for the accused did not expressly declare that he was surrendering himself, probably to avoid the implication that he was admitting his guilt. Further, in Go, the Prosecutor had himself filed with the trial court a motion for leave to conduct a preliminary investigation. This motion, along with the application for bail, was in fact initially granted by the trial court. But the trial court a few days later turned around and inexplicably changed its mind, cancelled the bail, refused to accord preliminary investigation to the accused Go and the trial began over the vehement protests of Go. The court said: Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo vs. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion

was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner such preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Rules of Court was applicable, the 5-day reglementary period on Section 7 Rule 112 must be held to have been substantially complied with. 15 (Emphases supplied) Hence, while the accused in Go was entitled to preliminary investigation as a matter of right, Esam Gadi is not. His right to demand preliminary investigation was subject to the condition that he should claim it seasonably. He did not do so. Esam Gadi, accordingly, effectively waived his right to a preliminary investigation. The denial of Esam Gadi's motion for preliminary investigation is also warranted: by his posting of a cash bail bond without previously or simultaneously demanding a preliminary investigation. In People vs. Hubilo, 16 an accused who had posted bail was deemed to have foregone his right to preliminary investigation. In the present case, EsamGadi asked for and was granted bail on 10 January 1994, or one month before he asked for a preliminary investigation on 9 February 1994. Once more Esam Gadi in fact waived his right to preliminary investigation. In Go, in contrast, the accused had asked for preliminary investigation and the right to post bail at the same time in one omnibus motion. Accordingly, the Court held that the accused in Go had not waived his right to preliminary investigation: Again, in the circumstances of this case, we do not believe that by posting bail, petitioner had waived his right to preliminary investigation. In People v. Selfaison (110 Phil. 839 [1961]), we did not hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. 17 (Emphases partly in the original and partly supplied) All in all, Esam Gadi's demand for preliminary investigation was an afterthought merely. WHEREFORE, the petition for Review is hereby GRANTED and the assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Orders of the Regional Trial

Court, Branch 116 of Pasay City dated 14 February 1994 and 8 March 1994 are hereby REINSTATED and the Regional Trial Court is ORDERED to proceed with the trial of Criminal Case No. 94-4820, with all deliberate dispatch. Costs against private respondent. WE CONCUR: Romero, Melo, Vitug and Francisco, JJ., concur.

GUNABE ET AL VS DOP

G.R. No. L-1231 January 30, 1947 MACARIO GUNABE, SULPICIO GUNABE and MARGARITO DRILLON Petitioners, vs.THE DIRECTOR OF PRISONS, Respondent. Francisco Astilla for petitioners. Assistant Solicitor General Kapunan, jr. and Solicitor Makasiar for respondent. PARAS, J.: The petitioners more or less admit that in November, 1942, they were charged in criminal cases Nos. 988 and 1010 of the Court of First Instance of Manila with murder and frustrated murder and that, in virtue of said cases (continued as criminal cases 1838 and 1839) which are still pending, the petitioners have been detained by the respondent Director of Prisons under proper commitment orders. Nevertheless, in the present petition for the writ of habeas corpus, the petitioners pray for their release on the grounds (1) that from one to four months after their arrest, their detention was unlawful as it was a brazen violation of their right to be delivered to the judicial authorities within six hours following their arrest, petitioner Macario Gunabe having been arrested on or about July 8, 1942, petitioner Sulpicio Gunabe on or about July 17, 1942, and petitioner Margarito Drillon on or about October 5, 1942; (2) that after the trial held about the end of September, 1943, the final termination of said cases were delayed to the prejudice of the substantial rights of the petitioners as defendants therein, nothing having been done by the prosecution since then until the liberation of the Philippines and until the date of the filing of the present petition for that matter, or for a period of more than three years now; (3) that, at any rate the petitioners should be released on amnesty, because the offenses for which they were prosecuted are political in nature, perpetrated by guerrilla men in the furtherance of their resistance movement during the enemy occupation.chanroblesvirtualawlibrary chanrobles virtual law library With respect to the first ground, it is sufficient to state that the alleged failure of the authorities (who arrested or are detaining the petitioners) to deliver the latter to the judicial authorities within six hours - which may of course be the subject of criminal prosecution under article 125 of the Revised Penal Code - cannot affect the legality of the confinement of the petitioners which is admittedly under subsisting process, issued by a competent court. Indeed, if it appears that the persons alleged to be restrained of their liberty are in the custody of an officer under process issued by a court or judge having jurisdiction to issue the process, the writ of habeas corpus shall not be allowed. (Rules of Court No. 102, section 4.)chanrobles virtual law library The second ground cannot be sustained. An accused is entitled to speedy trial, but this right is necessary relative, consistent with reasonable delays, and usually depends upon circumstances. (Moran, Commentaries on the Rules of Court, Vol. II, p. 476.) Said right may be waived by not objecting to postponements or other delays of the trial. (Id., p. 476.) The record does not show that the cases in question were not finally disposed of during the enemy occupation because of machinations of the prosecution, or that the petitioners objected to the alleged delays or insisted in the dismissal of the cases by reason by such delays. It cannot be reasonably expected that, after the liberation, trial could be resumed immediately, in view of the destruction of the records; and reconstitution is as much the duty of the prosecution as of the

defense. It is to be noted that, when the original cases were in December, 1946, continued as criminal cases Nos. 1838 and 1839, the period within which court records may be reconstituted had not as yet expired. The cases of Conde vs. Judge of First Instance and Provincial Fiscal of Tayabas (45 Phil., 173), and Conde vs. Rivera and Unson (45 Phil., 650), are not in point, since the delay therein complained of was held to be due to the fault of the provincial fiscal.chanroblesvirtualawlibrary chanrobles virtual law library The third ground is likewise untenable. As to whether the petitioners were or are entitled to amnesty, is a question that should be ventilated in the trial Court (Villa vs. Allen, 2 Phil., 436), or before the Guerrilla Amnesty Commission created pursuant to Proclamation No. 8 dated September 7, 1946, by the President of the Republic of the Philippines.chanroblesvirtualawlibrary chanrobles virtual law library The petition will be, as the same is, hereby denied. So ordered, with costs against the petitioners.chanroblesvirtualawlibrary chanrobles virtual law library Moran, Bengzon, C.J., Feria, Pablo, Briones and Tuason, JJ., concur. Moran, C.J., I certify that Justice Padilla concurred in this decision.

PEOPLE VS MABONG

G.R. Nos. L-9805-06

March 29, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIONISIO MABONG, defendant-appellant. Office of the Solicitor General Ambrosio Padilla and Solicitor Antonio A. Torres for appellee. Cipriano C. Alviso for appellant. BAUTISTA ANGELO, J.: In the afternoon on May 20, 1955, in the barrio of Rizal municipality of Lianga, province of Surigao, Rufo Verano, who was a rural policeman, heard some people shouting that one Dionisio Nabong went berserk. Verano went out of his house armed with a club and saw Mabong stab one Cipriano Tabel with a bolo. After pursuing and attacking his victim, Mabong faced Verano who told him to drop his bolo, and when he refused, Verano clubbed him on the face which caused him to stumble to the ground. Thereupon, Verano grabbed the bolo of the accused, tied him with a rope and brought him on a small boat to Lianga where he delivered him to the chief of police. On May 23, 1955, after proper investigation, Mabong was charged with murder in two separate informations by the chief of police before the Justice of the Peace of Lianga. When the, latter conducted the corresponding preliminary investigation, Mabong pleaded guilty, whereupon the Justice of the Peace forwarded the two cases to the court of first instance. In due time, the provincial fiscal filed against the accused the informations required by law, and when the court set the same for arraignment, the accused filed a motion to quash and a petition for habeas corpus alleging as main ground that his detention by the local authoritieds illegal upon the expiration of the period of eighteen (18) hours without having been proceeded with in accordance with law, and that the filing later on of the two criminal complaints against him by the chief of police did not have the effect of validating his detention. From the denial of said motion and petition, the accused took the present appeal. The law on which the accused relies in claiming the illegality of his detention is article 125 of the Revised Penal Code which provides: ART. 125. Delay in the delivery of detained persons to the proper judicial authorities. The penalties privided in the next preceeding article shall be imposed upon the public officer or employee who shall detain any persons to the proper judicial authorities within the period of six hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and eighteen hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. The law indeed provides that a public officer or employee who shall detain any person for some legal ground and shall fail to deliver him to the proper judicial authorities within the period of eighteen (18) hours if the crime for which he is detained calls for an afflictive or capital penalty, may be held amendable to criminal prosecution, but there is nothing said therein that the charge fro which he has been detained and for which he has been properly indicted, becomes invalid or

nugatory. While public may be held criminally liable, the proceeding taken against him for the act he has committed remains unaffected, for the two acts are distinct and separate. As a matter of fact, such an act on the part of the public officer is not considered as one of the grounds on which one can predicate a motion to quash the complaint or information under Rule 113, section 2, of the Rules of Court. It is true that the accused was detained in the municipal jail of Lianga for more than thrree (3) days before criminal charges were preferred against him before the justice of the peace court, and that since his detention no warrant of arrest has been issued by the court as a result of said charges, but the absence of such warrant can have no legal consequence it appearing that when the charges were filed he was already under the custody of local authorities. As the Solicitor General well observes, "no practical good will come out of quashing the information presented and setting the appellant free. That will only mean a complaint will have to be filed anew against him, that the justice of the peace of Lianga would issue a warrant for his arrest and start all over again with the case. In any event, . . . with the filing on May 23, 1955 of the corresponding criminal complaints against appellant, the detention there after of the accused became legal and justified; and that the issuance of an of formality and had already become functus oficio." The case of Gunable vs. Director of Prisons, 77 Phil., 993, is on all fours with the present case. There, two of the petitioners were arrested in July, 1942 while the third petitioner was arrested in October, 1942. In November ofthe same year, the three were charged with murder and frustrated murder before the Court of First Instance of Manila. In a petition for habeas corpus subsequently filed in behalf of the petitioners, it was alleged, among other things, that their detention for periods varying from one to four months following their arrests was unlawful as it violated their right to be brought before proper judicial authorities within six (6) hours after their apprehension. This cour denied the petition, saying: With respect to the first ground, it is sufficient to state that the alleged failure of the authorities (who arrested or are detaining the petitioners) to deliver the latter to the judicial authorities within six-hours which may of course be the subject of criminal prosecution under article 125 of the Revised Penal Code cannot affect the legality of the confinement of the petitioners which is admittedly under subsisting process, issued by a competent court. Indeed, if it appears that the persons alleged to be restrained of their liberty are in the custody of an officer under process issued by a court or judge having jurisdication to issue the process, the writ of habeas corpus shall not be alllowed. (Rules of Court No. 102, section 4.) Wherefore, the order appealed from is hereby affirmed, without costs. Paras. C.J., Bengzon, Padilla, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

MEDINA VS ORCOZO

G.R. No. L-26723

December 22, 1966

ARTHUR MEDINA Y YUMUL, petitioner, vs. MARCELO F. OROZCO, JR., Acting City Warden of Caloocan City, respondent. Federico Magdangal for petitioner. Francisco A. Garcia for respondent. SANCHEZ, J.: On application for habeas corpus. The facts are: At about 12:00 p.m. on November 7, 1965, petitioner Arthur Medina y Yumul was arrested and thereafter incarcerated in the Caloocan City jail, allegedly as one of those responsible for the death of one Marcelo Sangalang y Diwa which occurred on October 31, 1965 in said city. At about 9:00 o'clock in the morning of the same day, November 7, 1965, the case against Medina and two others for Sangalang's murder was referred to a fiscal, who forthwith conducted a preliminary investigation in petitioner's presence. At about 3:40 p.m. on November 10, 1965, an information for murder was filed against petitioner Arthur Medina y Yumul, and Antonio Olivar y Flores and Alexander Enriquez y Raginio in the Caloocan branch of the Court of First Instance of Rizal, docketed as Criminal Case No. C-1197 of said court. By court order, they were promptly committed to jail. Arraigned, Medina and his co-accused stood trial which has not yet terminated. 1. First to be considered is the charge of arbitrary detention. Petitioner claims violation of Article 125 of the Revised Penal Code. The crime for which petitioner is detained is murder, a capital offense. The arresting officer's duty under the law1 was either to deliver him to the proper judicial authorities within 18 hours, or thereafter release him. The fact however is that he was not released. From the time of petitioner's arrest at 12:00 o'clock p.m. on November 7 to 3:40 p.m. on November 10 when the information against him for murder actually was in court, over 75 hours have elapsed. But, stock should be taken of the fact that November 7 was a Sunday; November 8 was declared an official holiday; and November 9 (election day) was also an official holiday. In these three no-office days, it was not an easy matter for a fiscal to look for his clerk and stenographer, draft the information and search for the Judge to have him act thereon, and get the clerk of court to open the courthouse, docket the case and have the order of commitment prepared. And then, where to locate and the certainty of locating those officers and employees could very well compound the fiscal's difficulties. These are considerations sufficient enough to deter us from declaring that Arthur Medina was arbitrarily detained. For, he was brought to court on the very first office day following arrest.2 2. Nor could discharge from custody, by now, be justified even on the assumption that detention was originally arbitrary.

Petitioner at present is jailed because of the court's order of commitment of November 10, 1965 upon a murder indictment. No bail was provided for him, because he is charged with a capital offense. Such detention remains unaffected by the alleged previous arbitrary detention. Because, detention under a valid information is one thing, arbitrary detention anterior thereto another. They are separate concepts. Simply because at the inception detention was wrong is no reason for letting petitioner go scot-free after the serious charge of murder has been clamped upon him and his detention ordered by the court. The first is illegal; but the second is not.3 Thus, the petition for habeas corpus came too late.4 3. As unavailing is petitioner's claim that no preliminary investigation was conducted by the fiscal before the criminal charge against him was registered in court. Other than that averment in the petition herein, petitioner has nothing whatsoever to show for it. Upon the other hand, the assertion that such investigation was made on the very day of petitioner's arrest and in his presence, is confirmed by the fact that on November 12, 1965 he moved the office of the city fiscal for a reinvestigation of his case. And that reinvestigation was held on December 1, 1965. Thereafter, the case against him proceeded to trial. Add to all of these the legal presumption of regularity in the performance of official duties,5 and the question of lack of preliminary investigation is well nailed down. 4. Besides, the proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently waived.6 These are matters to be inquired into by the trial court, not an appellate court. 5. The cry of deprivation of a speedy trial merits but scant consideration. The arraignment of petitioner set for December 1, 1965 was postponed to December 20, 1965, thence to February 28, 1966, to March 14, 1966, all on petition of counsel for the accused, including petitioner. Then, on April 14, 1966, petitioner's counsel moved to reset the date of hearing on the merits. And again, the hearing scheduled on July 26, 1966 was transferred to September 6, 1966 on motion of defendant Alexander Enriquez with the conformity of petitioner's counsel. Finally, on motion of petitioner's counsel, the hearing on September 6, 1966 was recalendared for December 6, 1966. In this factual environment, we do not see denial to petitioner of the right to speedy trial. Delay of his own making cannot be oppressive to him.7 For the reasons given, the petition herein to set petitioner Arthur Medina y Yumul at liberty is hereby denied. Costs against petitioner. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur. Barrera, J., took no part.

PEOPLE VS ENCINADA

[G.R. No. 116720. October 2, 1997]

PEOPLE OF THE appellant.

PHILIPPINES, plaintiff-appellee, vs.

ROEL

ENCINADA, accused-

DECISION PANGANIBAN, J.: In acquitting the appellant, the Court reiterates the constitutional proscription that evidence (in this case, prohibited drugs) seized without a valid search warrant is inadmissible in any proceeding. A yield of incriminating evidence will not legitimize an illegal search. Indeed, the end never justifies the means.

The Case This principle is stressed in this appeal from the Judgment,[1] promulgated on July 15, 1994 by the Regional Trial Court of Surigao City, Branch 32,[2] in Criminal Case No. 3668, convicting Appellant Roel Encinada of illegal transportation of prohibited drugs under Section 4 of Republic Act No. 6425, as amended by Batas Pambansa Blg. 179. An Information,[3] dated May 22, 1992, was filed by Third Asst. Surigao City Prosecutor Virgilio M. Egay charging appellant of said crime allegedly committed as follows: That on or about May 21, 1992, in the City of Surigao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in gross disregard of the prohibition of the provisions of Republic Act No. 6425 as amended by Batas Pambansa Bilang 179, did then and there willfully, unlawfully and feloniously have in his possession, custody and control dried marijuana leaves weighing 800 grams, more or less, which he transported to Surigao City from Cebu City aboard a passenger ship, well knowing that such acts are expressly prohibited by law. Before arraignment, appellant, assisted by Counsel Antonio Casurra, offered to plead guilty to a lesser offense, i.e., illegal possession of prohibited drugs.[4] The trial court requested the prosecution to study the offer,[5] but the records do not show any agreement on such proposal. Upon his arraignment, appellant pleaded not guilty to the charge.[6] After the prosecution presented its evidence, the defense filed, with leave of court,[7] a Demurrer to Evidence dated September 1, 1993,[8] questioning the admissibility of the evidence which allegedly was illegally seized from appellant. The court a quo denied the motion, ruling:[9] For resolution is the demurrer to evidence dated September 1, 1993 of the accused, Roel Encinada, praying that he be acquitted of the crime charged on the ground of the inadmissibility

of the evidence for the prosecution consisting of the marijuana (seized) from him by the police. The accused raised the following issues, to wit: (1) Whether the arrest and search of the accused without a warrant would fall under the doctrine of warrantless search as an incident to a lawful arrest; and, (2) Whether the subject marijuana is admissible in evidence against the accused. xxx xxx xxx

A scrutiny of the evidence for the prosecution shows that the events leading to the arrest of the accused started when SPO4 Nicolas Bolonia, chief of the PNP vice control section, received a tip from his informer that the accused, Roel Encinada would be arriving on board the M/V Sweet Pearl at about seven oclock in the morning of May 21, 1992. On cross-examination SPO4 Bolonia testified that the information was given to him by his asset at about four oclock in the afternoon of May 20, 1992. After receiving the tip he relayed the information to SPO4 Cipriano Iligan, Jr., PNP chief of intelligence. SPO4 Bolonia further declared that he would have applied for a search warrant but there was simply no time for it. xxx xxx xxx

In the later case of People vs. Tangliben (184 SCRA 220) the Supreme Court modified its ruling in the Aminuddin case when it held that the arrest and search is lawful when the police had to act quickly and there was no more time to secure a search warrant. It is noted that the tip was given to SPO4 Bolonia by his informant at about the closing time of the offices of the various courts. He still had to inform SPO4 Iligan in order to coordinate with him. The boat carrying the accused was scheduled to dock in Surigao City at seven oclock the following morning when the courts had not yet opened. It is therefore quite obvious that the police did not have enough time to apply for a search warrant in the interim. The police cannot be faulted for acting on the tip and for stopping and searching the accused even without a warrant. In the case at bar, the accused was caught in flagrante delicto in actual possession of the marijuana. The search made upon his personal effects falls squarely under paragraph (a) of Rule 113, Section 5 of the 1985 Rules on Criminal Procedure which allows a warrantless search as an incident to a lawful arrest (People vs. Malmstedt, 198 SCRA 401). xxxx xxxx xxxx

WHEREFORE, premises considered, the demurrer to evidence in question is denied for lack of merit. After trial in due course, the assailed Judgment was rendered, the decretal portion of which reads: WHEREFORE, premises considered, the Court finds the accused, Roel Encinada, guilty beyond reasonable doubt of the violation of Section 4, Article II, of Republic Act No. 6425 as amended by Batas Pambansa Bilang 179, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of twenty thousand pesos (P20,000.00) without subsidiary imprisonment in case of insolvency; and to pay the costs.

The marijuana (Exhibit B) involved in this case is hereby forfeited to the government to be destroyed or disposed of pursuant to present rules and regulations. The two plastic chairs (Exhibits D and D-1) are also forfeited to the government.

The Facts Version of the Prosecution The Solicitor General, in the Appellees Brief, recounts the events leading to appellants arrest, as follows:[10] At around 4 p.m. of May 20, 1992, SPO4 Nicolas Bolonia was in his house when he received a tip from an informant that Roel Encinada would be arriving in Surigao City from Cebu City in the morning of May 21, 1992 on board the M/V Sweet Pearl bringing with him marijuana. Bolonia was then Chief of the Vice Control Squad of the Surigao City Police (pp. 27-29; TSN, November 27, 1992, 34-40; p. 10, TSN, May 14, 1993). Bolonia already knew Encinada because the latter previously was engaged in illegal gambling known as buloy-buloy. After receiving the tip, Bolonia notified the members of his team - SPO3 Marcial Tiro, SPO3 Glen Abot and SPO3 Charlito Duero - as well as his colleague SPO4 Cipriano Iligan, Jr., the chief of the Intelligence and Investigation Division, of the information he received. Because the information came late, there was no more time to secure a search warrant (pp. 38; TSN, November 27, 1992, May 14, 1993, p. 13; pp. 4, 19; TSN, March 3, 1993). In the early morning of May 21, 1992, Bolonia, Iligan and other police officers deployed themselves in different strategic points at the city wharf to intercept Encinada. At about 8:15 a.m. of the same day, the M/V Sweet Pearl finally docked. The police officers saw Encinada walk briskly down the gangplank, carrying two small colored plastic baby chairs in his hand (p. 11 TSN, May 14, 1993; pp. 4, 5, 15-16 TSN, March 3, 1993; pp. 29-30 TSN, November 27, 1992, pp. 29-30). From their various positions, the police officers followed Encinada immediately boarded a tricycle at Borromeo Street, still holding the plastic chairs. As the tricycle slowly moved forward, Bolonia chased it and ordered the driver to stop after identifying himself as a police officer. When the vehicle stopped, Bolinia identified himself to Encinada and ordered him to alight from the tricycle. Bolonia asked Encinada to hand over the plastic chairs, to which the latter complied (pp. 5, 6, 17 TSN, March 3, 1993, pp. 30-32, 35 TSN, November 27, 1992). Bolonia noticed that there were two small chairs, one green and the other blue, stacked together and tied with a piece of string. Between the stack of chairs, there was a bulky package. Bolonia examined it closely and smelled the peculiar scent of marijuana. Making a small tear in the cellophane cover, Bolonia could see and smell the what appeared to be marijuana, a prohibited drug (pp. 6-9 TSN, March 3, 1993, Exh. B, D and sub-markings; pp. 32-34. 35-39 TSN, November 27, 1992).

Encinada was brought to the central police station. Bolonia, in the presence of one Nonoy Lerio who is a member of the local media and a friend of Encinada, opened the package. It was discovered that indeed, the contents consisted of dried leaves known as marijuana. In the course of the investigation, Encinada surrendered to Bolonia his passenger ticket issued by M/V Sweet Pearl (pp. 9-11 TSN, March 3, 1993, Exh. E; pp. 34-35, 39-40 TSN, November 27, 1992). On July 13, 1992, Bolonia brought the package of dried leaves for examination at the PNP Crime Laboratory at Camp Evangelista, Cagayan de Oro City. The forensic chemist, Inspector Vicente Armada, tested the leaves and confirmed that they were positive for marijuana. However, the marijuana only weighed 610 grams, which Armada opined to be probably due to shrinkage and moisture loss (pp. 12-17, 19-21, 24-40, 41; TSN, November 27,1992, Exh. A, B. C and sub-markings.)

Version of the Defense Appellant sets up denial as his defense. In his brief, he denied ownership and possession of said plastic baby chairs, as follows:[11] 1) In the morning of May 21, 1992, at around 8:00 oclock in the morning, more or less, the accused was seen to have disembarked from MV Sweet Pearl after an overnight trip from Cebu City; 2) The accused proceeded to the Surigao PPA Gate and boarded a motorela bound for his residence at Little Tondo, (within the City Proper), Surigao City. The Motorela was fully loaded with passengers, with the accused as the fourth passenger; 3) When the motorela was already able to travel a distance of about ten (10) meters more or less, the same was forcibly stopped by persons who ordered the passengers to disembarked (sic). Thereafter, all the (baggage) of the passengers and the driver were ordered to stand in a line for which a body search was made individually (sic); 4) After the search was made, the accused was singled out in the line and ordered to board the service vehicle of the police and was brought to the PNP Police Station. Before however the accused boarded the jeep, he was openly protesting to the action taken by the police authorities and demanded from the apprehending officers a copy of a search warrant and/or warrant of arrest for the search made and for his apprehension; 5) In the police headquarters, the accused was made to undergo custodial investigation for which a plastic bag was presented to him allegedly containing the subject marijuana leaves. The accused denied that the said plastic bag belonged to him. The denial was witnessed by Mr. Daniel Nonoy Lerio, Jr. a member of the Surigao City Press, who was invited by the Police Investigators to witness the presentation of the alleged marijuana leaves, during the said investigation;

6) After the custodial investigation, the accused was placed immediately behind bars and the Information for Violation of RA 6425 as amended by Batas Pambansa Blg. 179 was filed before the Court; xxx xxx x x x

Aside from appellant, the defense also presented five (5) other witnesses whose testimony allegedly established the following:[12] 8.a) Ruben Concha the driver of the motorela who testified that he was surprised when the motorela he was driving was forcibly stopped (while already in motion ) by the police authorities while directing his four (4) passengers, (3 males and 1 female) to disembarked (sic) together with their (baggage). That after the search was made, the accused was singled out, and despite the protests made, was ordered to board the Police service vehicle, while the 2 other male passengers just left the scene while the female passenger continued to board the motorela who directed him to proceed to the residence of Baby Encinada to verify whether the person picked up by the police authorities was related to the latter; 8.b) Josephine Nodalo testified that she is a beautician, and that she was one of the four (4) passengers of the motorela driven by Ruben Concha, which motorela was forcibly stopped by men who are chasing it after travelling a distance of 5 to 10 meters away from its loading area near the PPA Gate. All the four (4) passengers were ordered to disembarked (sic) from the motorela whereupon they were all subjected to body search including their (baggage). That it was the male passenger who was sitting at the rear portion of the motorela who was picked up by the Police Authorities and despite the protests made was ordered to board the Police service vehicle. Upon learning from the persons who were gathered at the scene, that the one who was picked up was the son of Mr. Encinada, the latter boarded back the motorela and directed the driver to proceed to the residence of the Encinadas at Little Tondo to verify whether it was really their son who was picked up by the police authorities. She made this, as Mrs. Encinada, (the mother of the accused) is his (regular) customer; 8.c) Mr. Daniel Nonoy Lerio, Jr. testified that, being a member of the Press, he was requested by the police authorities to witness the custodial investigation conducted upon the person of the accused, who, during the entire proceedings of the investigation vehemently denied having any knowledge about the marijuana leaves placed inside the plastic bag; 8.d) Isabelita Encinada testified that she was informed by her manicurist (Josephine Nodalo) about the arrest x x x (of) her son, somewhere at the PPA Port Area and upon being informed, she and her husband immediately went to the Surigao PNP Headquarters to verify the (news) x x x; xxx xxx x x x.

Ruling of the Trial Court The trial court rejected appellants claim that he was merely an innocent passenger and that his package contained mango and otap samples, not marijuana. Emphasizing that the Surigao City Police had no ill motive against appellant, the trial court gave credence to SPO4 Bolonias story that he actually received from his police asset the information regarding appellants arrival in Surigao City. The trial court further emphasized that appellant was caught carrying marijuana in flagrante delicto. Hence, the warrantless search following his lawful arrest was valid and the marijuana obtained was admissible in evidence.

Assignment of Errors In his Brief, appellant submits the following assignment of errors:[13] I. The lower court erred in finding that the accused was caught in flagranti (sic) delicto in possession of the subject marijuana leaves and is the one responsible in transporting the same; II. The lower court gravely erred in finding that search and the arrest of the accused without a warrant would fall under the doctrine of warrantless search as incident to a lawful arrest -III. The lower court gravely erred in finding that the subject marijuana leaves is admissible in evidence In short, the main issues are (1) the sufficiency of the evidence showing possession of marijuana by appellant and (2) the validity of the search conducted on the person and belongings of the appellant.

The Courts Ruling The petition is meritorious.

First Issue: Illegal Possession of Prohibited Drugs Appellant claims that the prosecution failed to prove his possession and ownership of the plastic baby chairs. He contends that the testimonies of Bolonia and Iligan conflicted as to the number of passengers riding the motorela. Such alleged conflict is peripheral and irrelevant. Hence, it deserves scant consideration. Appellant adds that such testimonies also conflicted as to the place where appellant sat inside the motorela. This claim, aside from being flimsy, is also not supported by the transcript of stenographic notes. In his testimony, appellant vehemently denied possession of the plastic baby chairs, stressing that he was not holding them when the search was conducted. However, his denial is easily rebutted by Bolonias testimony:[14]

Q: When you saw Roel Encinada who disembarked from M/V Sweet Pearl, what did you observe in his person, if any? A: Q: A: He was carrying a (sic) baby chairs. What kind of chairs? A (sic) plastic chairs. xxx Q: A: xxx xxx

After you saw Roel Encinada disembarked (sic) from the boat, what did you and your companions do? We followed him behind because we posted in the different direction(s) in the wharf. xxx xxx xxx

Q: A:

You said you followed Roel Encinada, what happened next when you followed him? I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and let him stopped (sic). xxx xxx xxx

Q: A:

By the way, where was (sic) this (sic) two plastic chairs placed in the motorize tricycle? He was sitting at the back of the motor at the right portion of the seat and the chairs was (sic) placed besides him. ([W]itness indicating that he was sitting (sic) an imaginary seat at the back of the motor and holding an (sic) imaginary chairs with his left arm).

Between these two contentions, the choice of the trial court prevails because this is a matter that involves credibility of witnesses. On this subject of credibility, the opinion of the trial court deserves great respect as it was in a better position to observe the demeanor and deportment of the witnesses on the stand;[15] hence, it was in a superior situation to assess their testimonies. Furthermore, proof of ownership of the marijuana is not necessary in the prosecution of illegal drug cases;[16] it is sufficient that such drug is found in appellants possession.

Second Issue: Illegal Search and Seizure Based on the foregoing discussion, appellants conviction could have been affirmed by this Court. However, the very evidence implicating him -- the prohibited drugs found in his possession -- cannot be used against him in this case or, for that matter, in any proceeding. Generally, a search and seizure must be validated by a previously secured warrant; otherwise, such search and seizure is subject to challenge.[17] Section 2, Article III of the 1987 Constitution, is apropos:

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. Any evidence obtained in violation of this provision is legally inadmissible in evidence as a fruit of the poisonous tree. This principle is covered by this exclusionary rule: SEC. 3. x x x (2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose in any proceeding. The plain import of the foregoing provision is that a search and seizure is normally unlawful unless authorized by a validly issued search warrant or warrant of arrest. This protection is based on the principle that, between a citizen and the police, the magistrate stands as a mediator, nay, an authority clothed with power to issue or refuse to issue search warrants or warrants of arrest.[18] The right against warrantless searches, however, is subject to legal and judicial exceptions, as follows: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the accused themselves of their right against unreasonable search and seizure.[19] In these cases, the search and seizure may be made only upon probable cause as the essential requirement. 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 mans 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 item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.[20] In this case, Bolonia received at 4:00 p.m. on May 20, 1992 an intelligence report that appellant who was carrying marijuana would arrive the next morning aboard the M/V Sweet Pearl. Although such report could have been the basis of probable cause, Bolonia explained that he could not secure a warrant because the courts in Surigao City were already closed for the day. Thus, he and the other lawmen had no choice but to proceed the next morning to the port area. After appellant disembarked from the ship and rode a motorela, Bolonia stopped the motor vehicle and conducted the search. He rummaged through the two strapped plastic baby chairs which were held by appellant and found inserted between them a package of marijuana wrapped in a small plastic envelope. Appellant contended before the lower court that the warrantless search of his belongings was proscribed by the Constitution. But the trial judge rejected this contention, opining that appellant was caught in flagrante delicto at the time of his arrest. Hence, it concluded that the warrantless search conducted after his lawful arrest was valid and that the marijuana was admissible in evidence. Rule 113, Section 5, discusses the instances when a warrantless arrest may be effected, as follows:

SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx xxx x x x.

In this case, appellant was not committing a crime in the presence of the Surigao City policemen. Moreover, the lawmen did not have personal knowledge of facts indicating that the person to be arrested had committed an offense. The search cannot be said to be merely incidental to a lawful arrest. Raw intelligence information is not a sufficient ground for a warrantless arrest. Bolonias testimony shows that the search preceded the arrest:[21] Q: You said you followed Roel Encinada, what happened next when you followed him? A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and let him stopped (sic). xxx Q: A: xxx xxx

You said you stopped the motor tricycle in which Roel Encinada (sic) riding, what did you do? At first I identified myself to the driver and to some of the passengers. xxx xxx xxx

Q: A: Q: A: Q: A: Q: A:

And after that, what happened next? I requested Roel Encinada to disembark from the motor tricycle because of that information given to us in his possession. Possession of what? Possession of marijuana, Sir. And Roel Encinada alighted from the motor vehicle? Yes, Sir. After Roel Encinada alighted from the motor tricycle, what happened next? I requested to him to see his chairs that he carried.

Contrary to the trial courts ruling, People vs. Tangliben[22] is factually inapplicable to the case at bar. The prosecutions evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact

demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances. We disagree with the trial courts justification for the search: The arrest of the accused without warrant was lawful because there was a probable cause or ground for his apprehension. The police had received reliable, albeit confidential information from their informant that Roel Encinada would be bringing in marijuana from Cebu City on board the M/V Sweet Pearl. Unfortunately there was no more time for the police to apply for and secure a search warrant as the information was received late in the afternoon of May 20, 1992 and the accused was expected to arrive at seven oclock the following morning. The different courts were closed by then. Nevertheless the police felt constrained to act on the valuable piece of information. Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to dock until 7:00 a.m. the following day. Administrative Circular No. 13 allows applications for search warrants even after court hours: 3. Rafflling shall be strictly enforced, except only in case where an application for search warrant may be filed directly with any judge in whose jurisdiction the place to be searched is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is required to certify under oath the urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal holidays; (Emphasis supplied) The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled Amended Guidelines and Procedures on Applications for Search Warrants for Illegal Possession of Firearms and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with Multiple Salas: This Court has received reports of delay while awaiting raffle, in acting on applications for search warrants in the campaign against loose firearms and other serious crimes affecting peace and order. There is a need for prompt action on such applications for search warrant. Accordingly, these amended guidelines in the issuance of a search warrant are issued: 1. All applications for search warrants relating to violation of the Anti-subversion Act, crimes against public order as defined in the Revised Penal Code, as amended, illegal possession of firearms and/or ammunition and violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located. 2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of and personally act on the same. In the absence of the Executive Judge or ViceExecutive Judge, the application may be taken cognizance of and acted upon by any judge of the Court where the application is filed. 3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken cognizance of and acted upon by any judge of the Court having jurisdiction of

the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that its issuance is urgent. 4. Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Courts Administrative Circular No. 13, dated October 1, 1985. In People vs. Aminnudin, the Court declared as inadmissible in evidence the marijuana found in appellants possession during a search without a warrant, because it had been illegally seized. The Court firmly struck down the policemens cavalier disregard for the Bill of Rights, explaining: The present case presented no urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a search warrant was not necessary. Lawmen cannot be allowed to violate the very law they are expected to enforce. Bolonias receipt of the intelligence information regarding the culprits identity, the particular crime he allegedly committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed or neglected to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the appellant. It is significant that the Solicitor General does not share the trial judges opinion. Taking a totally different approach to justify the search, the Republics counsel avers that appellant voluntarily handed the chairs containing the package of marijuana to the arresting officer and thus effectively waived his right against the warrantless search. This, he gleaned from Bolonias testimony:[23] Q: After Roel Encinada alighted from the motor tricycle, what happened next? A: Q: A: Q: A: I requested to him to see his chairs that he carried. Are you referring to the two plastic chairs? Yes, Sir. By the way, when Roel Encinada agreed to allow you to examine the two plastic chairs that he carried, what did you do next? I examined the chairs and I noticed that something inside in between the two chairs.

We are not convinced. While in principle we agree that consent will validate an otherwise illegal search, we believe that appellant -- based on the transcript quoted above -- did not voluntarily consent to Bolonias search of his belongings. Appellants silence should not be lightly taken as consent to such search.[24] The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or

coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.[25]Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the presumption of regularity of the performance of duty. Appellants alleged acquiescence should be distinguished from the consent appreciated in the recent case of People vs. Lacerna.[26] In said case, the search was conducted at a validly established checkpoint and was made in the regular performance of the policemens duty. Although it became intrusive when the policemen opened his baggage, it was validated by the consent of appellant, who testified in open court that he allowed such search because he had nothing to hide. In the present case, there was no checkpoint established. The policemen stopped themotorela and forthwith subjected the passengers to a search of their persons and baggage. In contrast to the accused in Lacerna, herein appellant testified that he openly objected to the search by asking for a warrant. Without the illegally seized prohibited drug, the appellants conviction cannot stand. There is simply no sufficient evidence remaining to convict him. That the search disclosed a prohibited substance in appellants possession, and thus confirmed the police officers initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. We should stress that the Court is not unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and apprehensions of malefactors do not justify a callous disregard of the Bill of Rights. Law enforcers are required to follow the law and to respect the peoples rights. Otherwise, their efforts become counterproductive. We remind them of this recent exhortation by this Court:[27] x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means. WHEREFORE, the appeal is hereby GRANTED. The assailed Decision is REVERSED and SET ASIDE. Appellant is ACQUITTED. Unless convicted for any other crime or detained for some lawful reason, Appellant Roel Encinada is ORDERED RELEASED immediately. SO ORDERED. Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

VILLAVICENCIO VS LUKBAN

G.R. No. L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO LUKBAN, ET AL., respondents. Alfonso Mendoza for petitioners. City Fiscal Diaz for respondents. MALCOLM, J.: The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands? Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25. The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case.

Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila. To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application forhabeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918. Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal motives that made compliance impossible. It was further

stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision. Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record. In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so. One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents. With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is

done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence. In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the GovernorGeneral of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen. Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts should permit a government of men or a government of laws to be established in the Philippine Islands. What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus. The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides: Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas. Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.) We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao. The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court. The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any

judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ. The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature. A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted: I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . . It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . . The second proposition that the statutory provisions are confined to the case of imprisonment within the state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . .. The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect

it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.) The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said: A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.) A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus. There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged. The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents. The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separatehabeas corpus proceedings. Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done. The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacenderoof Davao, and Anacleto Diaz, Fiscal of the city of Manila. The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.) With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ ofhabeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive such an amount is P100. In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record theReplica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered. In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. Arellano, C.J., Avancea and Moir, JJ., concur. Johnson, and Street, JJ., concur in the result.

MONCADO VS PEOPLES COURT

G.R. No. L-824

January 14, 1948

HILARIO CAMINO MONCADO, recurrente, vs. EL TRIBUNAL DEL PUEBLO Y JUAN M. LADAW, como Procurador Especial, recurridos. D. Vicente J. Francisco en representacion del recurrente. El Primer Procurador General Auxiliar Sr. Jose B.L. Reyes, Procurador General Auxiliar Sr. Carmelino G. Alvendia, y el Procurador Especial Sr. Juan M. Ladaw en representacion de los recurridos. PABLO, J.: En una solicitud original de certiorari, el recurrente, acusado del delito de traicion en la causa criminal No. 3522 del Tribunal del Pueblo, alega que en 4 de Abril de 1945 a eso de las 6 de la tarde, fue arrestado por los miembros del CIc del Ejercito de los Estados Unidos en su residencia en la Calle San Rafael, No. 199-A, Manila, sin mandamiento de arresto y fue llevado a las prisiones de Muntinglupa, Rizal; que una semana despues su esposa que se habia trasladado a su casa-residencia en la Calle Rosario, No. 3, Ciudad de Quezon, fue invitada por varios miembros de CIC bajo el mando del Teniente Olves para presencia el registro de su casa en la Calle San Rafael; que rehuso seguirles porque no llevaban un mandamiento de registro; per como aseguraron que aun sin su presencia tenian que hacer de todos modos el registro, ella les acompaa; que a su llegada en la casa, vio que varios efectos estaban desparramados en el suelo entre los cuales varios documentos; que El Teniente Olves informo a ella que llevaba consigo algunos documentos para probar la culpabilidad de su esposo; que el 27 de Junio de 1946 el recurrente presento una mocion ante el Tribunal del Pueblo pidendo la devolucion de tales decumentos alegando como razon que han sido obtenidos de su residencia sin mandamiento de registro, y dicho tribunal, con grave abuso de discrecion o exceso de jurisdiccion y siguiendo la doctrina sentada en el asunto deAlvero contra Dizon (76 Phil., 637) la denego; que a menos que este Tribunal ordene al Procurador Especial que los devuelva al recurrente, sus derechos contitucionales garantizados por la constitucion quedarian violados. Y porque no tiene otro remedio sencillo, rapido y adecuado en el curso ordinario de la ley, pide que este Tribunal (a) anule la orden del Tribunal del Pueblo de 9 Julio de 1946; (b) que dicho Tribunal sea requerido a ordenar la devolucion al recurrente de tales deocumentos; (c) que se dicte una orden de interdicto prohibiendo al Procurador Especial a presentarlos como prueba contra el recurrente en el asunto de traicion. Estas peticiones demuestran que los docmentos son pruebas relevantes, ademas de adminisibles porque no hay regla que lo impide (Model Code of Evidence, 87). Esta bien fundada la contencion del recurrente de que la decision en la causa de Alvero contra Dizon (76 Phil., 637) no es aplicable al caso particular. Los documentos en el asunto de Alvero han sido decomisados por los miembros del CIC cuando el gobierno miliar ejercia en todo su apogeo sus funciones de ejercito de ocupacion. En cambio, cuandose apoderaron en 11 de Abril de 1945, de los docomentos que son objeto de esta causa, el General MacArthur en nombre del Gobierno de los Estados Unidos, ya habia restablecido en 27 de Febrero del mismo ao, el Commonwealth con todos sus poderes y prerrogativas (41 Off. Gaz., 86). El gobierno del Commonwealth estaba ya ejerciendo todos sus poderes constitucionales y legales sin

limitacion alguna en la Ciudad de Manila. El Presidente no habia suspendido las garantias constitucionales. Es doctrina bien establecida en Filipinas, Estados Unidos, Inglaterra y Canada que la adminisibilidad de las pruebas no queda afectada por la ilegalidad de los medios de que la parte se ha valido para obtenerla. 1 Es doctrina seguida por muchos aos "hasta que surgio dijo este Tribunal en Pueblo contra Carlos, 47 Jur. Fil., 660 la funesta opinion de la mayoria en la causa de Boyd vs. U.S. en 1885, que ha ejercido perniciosa influencia en muchos Estados sobre opniones judiciales subsiquientes." "El desarrollo de esta doctrina del asunto de Boyd vs. U.S. fue como sigue. (a) La causa de Boyd continuo sin ponerse en tela de juicio en su mismo tribunal durante veinte aos; mientras tanto recibia frecuente desaprobacion en los tribunales de Estado (ante, parrafo 2183). (b) Entonces en el asunto de Adams vs. New York, en 1904, fue implicitamente desechada en el Tribunal Supreme Federal, y los precedentes ortodoxos registrados en los tribunales de Estados (ante, parrafo 2183) fueron expresamente aprobados. (c) Luego, depues de otros veinte aos, en 1914, en la causa de Weeks vs. U.S., el Tribunal Supremo Federal movido en esta epoca no por historia erronea, sino por un sentimentlismo extraviado retrocedio a la doctrina original de la causa de Boyd, pero con una condicion, a saber, que la ilegalidad del registro y decomiso deberia primero haber sido directamente litigada y establecida mediante una mocion, hecha antes del juicio, para la devolucion de las cosas decomisada; de modo que, despues dicha mocion, y solo entonces, la ilegalidad podria advertirse en el juicio principal y las pruebas asi obtenidas deberian excluirse. ... ." Bajo la autoridad de esta doctrina de Weeks vs. U.S., y otras decisiones de la misma escuela el recurrente ejercita el presente recurso, pidiendo la devolucion de los documentos ilegalmente sacados por los miembros del CIC. La Constitucion grantiza la inviolabilidad de los derechos individuales en los siguinetes terminos; "No se violara el derecho del pueblo a la seguridad de sus personas, moradas, papeles y efectos contra registros y secuestros arresto, a no ser por causa probable que se determinara por el juez despues de examinar bajo juramento o afirmacion al denunciante y a los testigos que presentare, y con descripcion detallada del sitio que se ha de registrar y de las personas que se han de aprehender o de las cosas que han de ser incautadas." (Titulo III, articulo 1.o, parrafo 3.o.) Concurrimos con la reclamacion del recurrente de que, bajo estas grantias consitucionales, tenia derecho a que su casa fuese respetada, sus documentos no debian ser decomisados por ninguna autoridad o agente de autoridad, sin un mandamiento de registro debidamente expedido. Estas limitaciones constitucionales, sin embargo, no llegan hasta el extremo de excluir como pruebas competentes los documentos obtenidos ilegal o indebidamente de el. El Reglamento de los Tribunales, Regla 123, determina cuales son las pruebas que deben ser excluidas, cuales son las admisibles y competentes y no clasifica como pruebas incompetentes las obtenidas ilegalmente. La ley fundamental seada los limites hasta donde pueden llegar los poderes ejecutivo, legislativo y judicial en el ejercicio de su fundciones. El ejecutivo no debe abusar de su poder, vilando el domicilio del ciudadano o incautandose indebidamente de sus bienes y documentos; el legislador no debe aprobar leyes que hacen ilusorio lo sagrdo del hogar y los tribunales deben castigar a los infractores de la constitucion, sin tener en cuenta si son funcionarios publicos o no. Como dijo el Presidente Lumpkin en Williams vs. States, 28 S. E., 624:

As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures, was to place a salutary restriction upon the powers of government. That is to say, we believe the framers of the constitutions of the United States and of this and other states merely sought to provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful, any unreasonable search or seizure. This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without any color of authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their own volition, surely none of the three divisions of government is responsible. If an official, or a mere petty agent of the state, exceeds or abuses the authority with which he is clothed, he is to be deemed as acting, not for the state, but for himself only; and therefore he alone, and not the state, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a mere individual, the most that any branch of government can do is to afford the citizen such redress as a possible, and bring the wrongdoer to account for his unlawful conduct. . . . . Creemos que los autores de la constitucion filipina nunca han tenido la mas ligera idea conceder inmunidad penal al que viola santidad del hogar, ni a cualquier infractor de la ley criminal por el solo hecho de que las pruebas contra el hayan sido obtenidas ilegalmente. El procedimiento sano, juto y ordenado es que se castigue de acuerdo con el articulo 128 del Codigo Penal Revisado al individuo que, so capa de funcionario pubico, sin mandmiento de registro, indebidamente profana el domicilio de un ciuadano y se apodera de sus papeles y que se castigue tambien a ese ciudadano si es culpable de un delito, no importando si la prueba de su culpabilidad ha sido obtenida ileglmente. El medio empleado en la adquisicion del documento no altera su valor probatorio. Asi en Stevenson vs. Earnest, 80, Ill. 513, se dijo: "It is contemplated, and such ought ever to be the fact, that the records of courts remains permanently in the places assigned by the law for their custody. It does not logically follow, however, that the records, being obtained, cannot be used as instruments of evidence; for the mere fact of (illegally) obtaining them does not change that which is written in them ... . Suppose the presence of a witness to have been procured by fraud or violence, while the party thus procuring the attendance of the witness would be liable to severe punishment, surely that could not be urged against the competency of the witness. If he could not, why shall a record, although illegally taken from its proper place of custody and brought before the Court, but otherwise free from suspicion, be hold incompetent? "En Com. vs. Dana, 2 Metc., 329. e; Tribunal dijo: "Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant where illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done. But this is no good reason for excluding the papers seized, as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence the Court can take no notice how they were obtained, whether lawfully or unlawfully, nor would they form a collateral issue to determine that question." El recurrente cita el caso de Bureau vs. McDowell en los siguientes terminos:

Ciertos libros, papeles, memoranda , etc., de la propiedad privada de McDowell fueron robados por ciertas personas que estaban interesadas en la investigacion que iba a practicar el Grand Jury contra Mcdowell por ciertas ofensa que se decia habia cometido esta, relativa al uso fraudulento del correo. Estos documentos y lobros fueron despues entregados a Burdeau por las personas que los habian rabaod. Burdeau era el ayudante especial del Attorney-General de los Estados Unidos, que iba a tener la direccion y control de la prolos Estados Unidos, que iba a tener la direccion y control de la prosecucion ante el Grand Jury. McDowell trato de impedir que Burdeau utilizara dichos libros y documentos mediante una mocion que habia presentado en tal sentido. Burdeau se opuso a la mocion, alegando que tenia derecho de usar dichos papeles. La Corte Suprema de los Estados Unidos sostuvo la contencion de Burdeau, diciendo: "We know of no constitutional principal which requires the government to surrender the papers under such circumstances. "The papers having come into possession of the government without a violation of petitioner's rights by governmental authority, we see no reason why the fact that individuals unconnected with the government may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of incriminatory character." (Burdeau vs. McDowell.) "Adoptara nuestra Corte Suprema la doctrina que se anuncia en esta decision? Sometemos que esta es una mala regla de derecho, y a nuestro humilde parecer, no debe adoptarla nuestra Corte." El recurrente cita despues decisiones de algunos Tribunales Supremos de Estado que no han adoptado esta doctrina del Tribunal Supreme Federal. No es Extrao. Cada tribunal adopta su propio criterio. Pero de los 45 Estados de la Union Americana segun el Magistrado Cardozo en su decision dictada en 1926, en People vs. Defore, 150 N. E., 585 catorce adoptaron la doctrina heterodoxa de Weeks y 31 la rechazaron, y segun Wigmore, en 1940, catorce aos despues, seis Estados mas, 37 en total, incluyendo Hawaii y Puerto Rico la rechazaron, manteniendo la doctrina ortodoxa. (8 Wigmore on Evidence, 3.a Ed., paginas 5-11.) Y depues de considerar las varias decisiones de las dos escuelas, Cardozo hizo estas atinadas observaciones sobre la doctrina de Weeks: We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power, through over-zeal or indiscretions, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murder goes free. Another search, once more against the law, discloses counterfeit money or the implements of forgery. The absence of a warrant means the freedom of the forger. Like instances can be multiplied. Concretemonos al caso presente. Si los documenteos cuya develucion pide el recurrente, prueban su culpabiblidad del delito de traicion, por que el Estado tiene que devolverlos y librarle de la acusacion? No es esto consentir y convalidar el crimen? No constituye una aprobacion judicial de la comision de los delitos, el de violacion del domicilio del acusado cometido por los miembros del CIC y el de traicion cometido opor el recurrente? Semejante

practica fomentaria el crimen en vez de impedir su comision. Ademas, la obtencion de los documentos no altera su valor probatorio. Si hubiera mediado un mandamiento de registro, los documentos serian pruebas admisibles. No hay niguna disposicion constitutucional, ni legal que libere al acusado de toda responsbilidad criminal porque no hubo mandamiento de registro. La vindicta publica exige que los infractores de la ley penal sean castigados. Poner en libertad al culpabale por el simple hecho de que la prueba contra el no ha sido obtenida legalmente es sancionar judicialmente el crimen. Consideremos un caso: Juan que presencia un asesinato, consigue arrebator del asesino el pual, y con el cual le ordena que se de por arrestado y le conduce a la presidencia del pueblo. En el camino se encuentra con Pedro que intercede por el asesino; Juan, por un sentimentalismo mal comprendido, devuelve el pual y ayuda al acusado a hacer desaparecer todo vestigio del crimen para no ser descubierto. Juan y Pedro, no solamente cometen actos indignos debuena ciudadania, sino que deben ser castigados por encubridores (art. 19, cod. Pen. Rev.) El publico nunca llegara a comprender por que estos dos indivduos deben ser castigados y, en cambio, un juzgado, bajo la doctrina de Weeks, puede ordenar la devolucion del documento robado que prueba la culpabilidad de un acusado y dejar libre a este y al que robo el documento. Otro caso. Por sospechosa catadura, un tal Jose es arrestado por dos policias al lirigirse a la tribuna en donde estan reunidos los altos funcionarios del poder ejecutivo, legislativo y judicial juntamente con los representantes diplomaticos de las naciones amigas para presenciar la parada del aniversario de la independencia; en su bolsillo encuentran una bomba que es capaz de volar toda la tribuna. Otros dos policias, despues de enterarse del arresto, requisan la casa de Jose y encuentran documentos que revelan que el ha recibido ordenes de una organizacion extranjera para polverizar a todo el alto personal del gobierno en la primera oportunidad. Los policias no tienen mandamiento de arresto, ni mandamiento de registro. Es justo que a mocion de Jose en la causa criminal seguida contra el, se ordene por el juzgado la devolucion de los documentos que prueban su crimen? No se daria aliciente al anarquismo con semejante practica? El juzgado desempearia el triste papel de ayudar a los que desean socavar las bases de nuestras institutciones. En U.S. vs. Snyder, 278 Fed., 650, el Tribunal dijo: "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." Y en People vs. Mayen, 205 Pac., 435, se dijo: "Upon what theory can it be held that such proceeding (for the return of the articles) is an incident of the trial, in such a sense that the ruling thereon goes up on appeal as part of the record and subject to review by the appellate court? It seems to us rather an independent proceeding to enforce a civil right in no way involved in the criminal case. The right of the defendant is not to exclude the incriminating documents from evidence a civil right in no way involved in the criminal case. The right of the defendant is not to exclude the incriminating documents from evidence, but to recover the possession of articles which were wrongfully taken from him. That right exists entirely apart from any proposed use of the property by the State or whereas it was the invasion of his premises and the taking of his goods that constituted the offense irrespective of what was taken or what use was made of its; and the law having declared that the articles taken are competent and admissible evidence, notwithstanding the unlawful search and seizure, how can the circumstance that the court erred in an independent proceeding for the return of the property on defendant's demand add anything to or detract from the violation of the defendant's constitutional rights in the unlawful search and seizure?

The Constitutional and the laws of the land are not solicitous to aid persons charged with crime in their efforts to conceal or sequester evidence of their iniquity. (8 Wig., 37.) La teoria de Weeks vs. U.S. que subvierte las reglas de prueba no aceptable en esta jurisdiccion: es contraria al sentido de justicia y a la ordenanda y sana adminsitracion de justicia. La doctrina ortodoxa se impone por su consistencia probada a traves de muchimos aos. No hay que abandonarla si se desea que los derechos constitucionales sean respetados y no profanados. Los culpables deben recibir su condigno castigo, aunque las pruebas contra ellos hayan sido obtenidas ilegalmente. 2 Y los que con infraccion de la ley y de la Constitucion se apoderan indebidamente de tales purebas deben tambien ser castigados. Asi es como la ley impera, majestuosa e incolume. Se deniega la solicitud con costas. Moran, Pres., Feria, y Padilla, MM., estan conformes. Tuason, J., concurs in the result.

Separate Opinions HILADO, J., concurring: I concur, but I would further support the conclusion arrive at by the following additional considerations: In April, 1945, when the CIC Detachment of the United States Army made the search at petitioner's house and effect the seizure of his papers and effects mentioned in the majority decision, as is of general knowledge and within the judicial notice of this Court, fighting continued in Luzon; in fact, as late as June, 1945, the cannonades and shellings could still be clearly heard in this City of Manila, and there were still units of the Japanese Army resisting the liberation forces. Under such circumstances, the war was continuing not only technically but actually in the island of Luzon; and the military security and safety of the liberation forces demanded such measures as were adopted by the CIC Detachment of the United States Army in making said search and effecting said seizure to the end that the activities of pro-Japanese elements and their chances of effectively aiding the Japanese forces which thus still continued to resist might be brought down to a minimum and, if possible, entirely foiled. The difference between this case and the case in L-342, (Alvero vs. Dizon, 43 Off. Gaz., 429), is, to my mind, merely one of degree the principle involved is identical in both cases.

PERFECTO, J., dissenting: Petitioner stands accused of treason before the People's Court, the information against him having been filed by Prosecutor Juan M. Ladaw on February 28, 1946. Almost a year before, on April 4, 1945, at about 6:00 p.m., petitioner was arrested by members of the Counter Intelligence Corps of the United States Army at his residence at 199-A San

Rafael St., Manila, without any warrant of arrest, and taken to the Bilibid Prison at Muntinglupa, where he was detained. On April 11, 1945, petitioner's wife, who transferred to their house at 3 Rosario Drive, Quezon City, was approached by several CIC officers, headed by Lt. Olves, and ordered to accompany them to the house at San Rafael to witness the taking of documents and things belonging to petitioner. Upon hearing from the officers that they did not have any search warrant for the purpose, she refused to go with them, but after the officers told her that with or without her presence they would search the house at San Rafael, Mrs. Moncado decide to accompany them. Upon arrival at the house, Mrs. Moncado noticed that their belongings had been ransacked by American officers and that the trunks which she had kept in the attic and in the garage when she left the house, had been ripped open and their contents scattered on the floor. Lt. Olves informed Mrs. Moncado that they were going to take a bundle of documents and things, which were separated from the rest of the scattered things, because they proved the guilt of her husband. Mrs. Moncado protested in vain. No receipt was issued to her. Subsequently, after making an inventory of their belongings at San Rafael, Mrs. Moncado found the following things missing: (a) Passes issued by Japanese friends for the personal safety and conduct of the petitioners; (b) Correspondences of the petitioner as president of the Neighborhood Association in Quezon City during the Japanese occupation; (c) Correspondence of the petitioner with certain Japanese officers; (d) The personal file and the love letters of Mrs. Moncado to Dr. Moncado and vice versa; (e) Marriage certificate of Dr. Moncado with Mrs. Moncado issued at Reno, Nevada; (f) Private correspondence and letters of Dr. Moncado to and from his Filipino Federation of America in Hawaii and United States: (g) Several law books by Guevara, Albert, Francisco, Harvard Classics (complete set), books on diplomacy, international law; (h) A complete collection of the 'Tribunal' compilation of the same during occupation until the last day of its issuance; (i) Complete collection of American magazines, from 1940 to 1941 Los Angeles Examiner, San Francisco Chronicle, Los Angeles Evening Herald and newspapers edited and owned by Dr. Moncado and published in the United States; and National Geographic Society;

(j) Personal letters of Dr. Moncado with several members of the United States Senate and Congress of the United States including a picture of President Hoover dedicated to Dr. Moncado; (k) Pictures with personal dedication and autograph to Dr. and Mrs. Moncado by actors and actresses from Hollywood, including Mary Astor, Binnie Barnes, Robert Montgomery, Clark Gable, Gary Cooper, Boris Karloff, Wallace Beery, William and Dick Powell, Myrna Loy, Bette Davis and Ceasar Romero; (l) Certificate as first flighter in the Pan-American Airways and even several stickers issued by Pan American Airways for passengers' baggage; (m) A promissory note of Dr. Moncado for fifty thousand pesos (P50,000) in favor of Architect Mr. Igmidio A. Marquez of Quezon City; (n) Three (3) volumes of modern ballroom dancing by Arthur MacMurray of New York, pamphlets of dancing obtained by Dr. Moncado while he was studying dancing at Waldorf-Astoria, New York; (o) two (2) volumes of rhumba, zamba and tango obtained from Mexico and Argentina by Dr. Moncado." (Pages 3 and 4, Petition for Certiorari and Injunction.) On June 27, 1946, petitioner filed with the People's Court a motion praying that the return of said documents and things be ordered. The petition was denied on July 9, 1946. Thereupon, petitioner filed with this Supreme Court on August 10, 1946, a petition praying that the lower court's order of July 9, 1946, be set aside, that said court be required to order the return of the documents and things in question to petitioner, and that the prosecutor be restrained from using and presenting them as evidence at the trial of the criminal case for treason. Before proceeding to consider the question of law raised in this case, we should not ignore three questions of fact raised in the answers of respondents: at to the identity of the documents and things, as to whether they were taken from the house at San Rafael or from the house at Rosario Heights, and as to whether they were taken at the time of petitioner's arrest or later. The fact that the return of the documents and things were opposed to in the lower court by the prosecutor, without disputing their identity, and that in the present proceeding the prosecutor admits to have them in his possession, without disputing their identity or correcting any error of description made by petitioner, convinced us that in petitioner's and respondent's minds there is no disagreement on the identity in question. There should not be any doubt that the papers and things described and claims by petitioner are the ones in the prosecutor's possession, otherwise, instead of objecting to the return on legal grounds, he would have alleged that such things are not in his possession, or he does not know where they are, or that they did not exist at all. Whether the things were taken at San Rafael or at Rosario Heights is completely immaterial. The fact is that is that the reality and existence of things and petitioners' ownership thereof, are undisputed, and that they were taken from a house of petitioner.

That they were taken not at the time of petitioner's arrest but much later, is indisputably proved by petitioner's and his wife's depositions not contradicted by any other evidence. This case offers a conclusive evidence that fundamental ideas, rules and principles are in constant need of restatement if they are not to lose their vitality. So that they may continue radiating the sparks of their truth and virtue, they need the repeated pounding of intense discussion, as the metal hammered on the anvil. To make them glow with all their force, purity and splendor, they need the continuous smelting analysis and synthesis as the molten iron in a Bessemer furnace. Otherwise, they become rusty, decayed or relegated as useless scraps in the dumping ground of oblivion. What is worse, they are frequently replaced by their antitheses, which pose with the deceitful dazzle of false gods, clothed in tinsel and cellophane. The risks always lurking at every turn of human life, exacts continuous vigilance. Human minds must always be kept well tempered and sharpened as damask swords, ready to decapitate the hydra of error and overthrow the gilded idols from the muddy pedestals of pretense and imposture. May the government profit from an illegality, an unconstitutional act, or even a crime to serve its aims, including the loftiest? May justice be administered by making use of the fruits of a lawless action? If a private individual, when profiting from the fruits of a criminal offense, is punished by law as an accessory after the fact, why should the government or an official system of justice be allowed to ignore and mock the moral principle which condemns the individual? Is there a moral standard for the government different from the one by which private conduct is measured? While a private citizen is not allowed to violate any rule of decency and fair play, may the government follow a procedure which shock the common sense of decency and fair play? If a person cannot enrich himself with stolen property, why should a government be allowed to profit and make use of property tainted by theft or robbery or smeared with the blood of crime? The above are among the elemental questions that must be answered in this case, if we are not lacking the moral courage to face all the issues raised by the parties. Other questions concern personal liberty as affected by illegal detention, personal security against illegal searches and seizures, judicial emancipation from colonial mental attitude. Respondents urge us to follow the decision in Alvero vs. Dizon (L-342), which, besides having been rendered by a second Supreme Court, whose existence is violative of the Constitution, cannot claim better merit than a servile adherence to a wrong legal doctrine, decorated by the halo of authority of courts of a former metropolis. There are minds that forget that duty of thinking by ourselves and of not sticking to the teachings of foreign mentors has become more imperative since July 4, 1946. The seizure of the papers and effects in questions, having been made without any search warrant, was and is illegal, and was effected in open violation of the following provisions of the Constitution: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determine 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 1 [3] of the Constitution.)

The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order require otherwise. (Article III, section 1 [5] of the Constitution.) The seizure was also in open violation of sections 3, 10, and 11 of Rule 122, which are as follows: SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause to be determined by the judge or justice of the peace 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. SEC. 10. Receipt for the property seized. The officer seizing property under the warrant must give a detailed receipt for the same to the person on whom or in whose possession it was found, or in the absence of any person, must, in the presence of at least two witnesses, leave a receipt in the place in which he found the seized property. SEC. 11. Delivery of property and inventory there of to court. The officer must forthwith deliver the property to the justice of the peace or judge of the municipal court or of the Court of First Instance which issue the warrant, together with a true inventory thereof duly verified by oath. Even more, the illegality and unconstitutionality amounted to two criminal offenses, one of them heavily punished with prision correccional. The offenses are punished by articles 128 and 130 of the Revised Penal Code, which reads: 4. ART. 128. Violation of domicile. The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or, having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so. If the offense be committed in the nighttime, or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender, the penalty shall be prision correccionalin its medium and maximum periods. ART. 130. Searching domicile without witnesses. The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any persons, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. The main authority upon which respondents rely is the decision of the Supreme Court of the United States in Bordeau vs. MacDowell (256 U.S., 465), the same followed in the decision in Alvero vs. Dizon (L-342). In the Bordeau case, certain documents were stolen from MacDowell. Upon finding that the documents contained evidence of the fraudulent use of the mails by MacDowell, the robbers delivered them to Bordeau, in charge of the prosecution against MacDowell. The latter filed a motion to prevent Bordeau from using the documents as

evidence against him. The federal Supreme Court denied the motion on the ground that there is no law or constitutional principle requiring the government to surrender papers which may have come into its possession where the government has not violated the constitutional rights of the petitioner. Two of the greatest American Justices, Justices Holmes and Brandeis, whose dissenting opinions, written twenty years ago, are now the guiding beacons of the Supreme Court of the United States, dissented, the latter saying: At the foundation of our civil liberty lies the principles which denies to government officials exceptional position before the law, and which subjects them to the same rules of conduct that commands to the citizen. And in the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play. Taking aside the great intellectual, moral and judicial prestige of the two dissenters, the poignant logic and rock-bottom sense of truth expressed by Justice Brandeis is enough to complete discredit the majority doctrine in the Bordeau case, a doctrine that in principle and by its evil effects appears to be irretrievably immoral. To merit respect and obedience, a government must be just. Justice cannot exist where the good is not distinguished from the wicked. To be just, the government must be good. To be good it must stick to the principles of decency and fair play as they are understood by a common man's sense, by universal conscience. Good ends do not justify foul means. No one should profit from crime. Principles are not to be sacrificed by any purpose. What is bad per se cannot be good because it is done to attain a good object. No wrong is atoned by good intention. These are some of the maxims through which the common sense of decency and fair play is manifested. Reason is a fundamental characteristic of man. There is no greater miracle than when its first sparks scintillated in the mind of a child. What before had only the vegetative life of a plant or the animal life of a mollusk or frog, suddenly begins to wield the prodigious power of understanding and intelligent grasping of the meaning and relations of the things with which he is in direct or remote contact though his senses. The power of understanding brings forth the freedom of choice. This freedom develops the faculty of discrimination between good and evil. That discrimination is further developed into a sense of justice. While the advent of the astounding miracle of reason has so much kindled the pride of men, to the extent of symbolizing it wit the fire stolen by Prometeus from the heavens, and of proclaiming himself as the king of the creation, man had taken millennia of struggles in order to develop the basic ideas which insure his survival and allow him to enjoy the greatest measure of well-being and happiness. He soon discovered that society is an indispensable condition to attain his ends. As a consequence, he fought against all anti-social ideas and conduct and had to discover or invent and then develop the principles and qualities of sociability. The struggle has been long and it will have to continue until the end of the centuries. It is the same eternal struggle between truth and error, between right and wrong. While man, in the multifarious ensemble of the universe, seems to be the lone and exclusive holder of the divine fire of reason, he had so far failed to find the key to always correct thinking. The solution to the failure of reason is riddle yet to be unlocked. Man is easily deceived into committing blunders or led into the most absurd aberrations. The mysterious genes which keep

uninterrupted the chain of heredity, while permitting the transmission of the best qualities and characteristics, seems to lack the power of checking and staving off the tendencies of atavism. In the moral ctetology, either kind of characteristics and qualities may be originated and developed. The inconsistency of respondents is thus explainable. While they would raise their brows at the mere insinuation that a private individual may justifiably profit by the result s of fruits of a criminal offense, they would not measure the government with the same moral standard. That the inconsistency may be explained by its genesis is no ground why we should surrender to it. To set two moral standard, a strict one for private individuals and another vitiated with laxity for the government, is to throw society into the abyss of legal ataxia. Anarchy and chaos will become inevitable. Such a double standard will necessarily be nomoctonous. The idea of double moral standard is incompatible with the temper and idiosyncracy of social order established by our constitution, and is repugnant to its provisions. all government authority emanates for the people in whom sovereignty resides. The Filipino people ordained and promulgated the constitution "in order to established a government that shall embody their ideals." Among these ideals are justice, democracy, the promotion of social justice equal protection of the laws to everybody. Such ideals are trampled down by the adoption of the double moral standard which can be taken its place in the ideology of the supporters of absolute monarchies. Their is the maxim that "the king can do no wrong." The iniquities and misery havocked by such maxim would need hundreds or thousands of volumes to record them. The infamy of Japanese occupation gave our people the bitter taste of the operation of the double moral standard. It is the antithesis of the golden rule. It would place government in a category wholly apart from humanity, notwithstanding its being a human institution, an unredeemable absurdity. From "Brandeis, A Free Man's Life" by Alpheus Thomas Mason (pp. 568 and 569), we quote an analogous legal situation: "In the famous wire-tapping case Chief Justice Taft, delivering the opinion, overruled the defendants' claim that the evidence obtained when government agents tapped their telephone wires violated either unreasonable searches and seizures or the constitutional protection against self-incrimination. No tapped wires entered their homes and offices, Taft reasoned, so there was neither search nor seizure. "For Justice Brandeis such a narrow construction degraded our great charter of freedom to the level of a municipal ordinance. Quoting Chief Justice Marshall's famous 'We must never forget that it is a Constitution we are expounding' he pointed out that just as the power of Congress had by judicial interpretation been kept abreast of scientific progress, and extended the Fundamental Law to objects of which the Founding Fathers never dreamed, so also must the judges in construing limitations on the powers of Congress be ever mindful of changes brought about by discovery and invention. To have a living Constitution, limitations on power no less than grants of power must be construed broadly. 'Subtler and more far-reaching means of invading privacy have become available to the government,' Brandies observed. ... The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . . "'Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If government becomes a law-breaker, it breeds

contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. . . . "'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,' he emphasized. "They recognized the significance of man's spiritual nature, of his feelings and of his intellect. they knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of right and the right most valued by civilized men. . . . "'Experience should teach us to be most on our guard to protect liberty when the government's purpose are beneficent. Me born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.'" (Olmstead vs. U.S., 277 [U.S.] 438, [1928], pp. 473-474, 478, 479, 485.) The argument that goods and personal properties illegally taken, stolen, or snatched from the owner of possessor without a duly issued search warrant can be retained by the prosecution for use as evidence in a criminal case instituted is initiated by an original and basic flaw. The argument rests on the assume existence or commission of a crime as its minor premise. but, under the orderly processes of law, the assumption has yet to be proved, and it is impossible to be proved before it can be of any use to support and clinch the argument. The prosecution is called upon to make the assumption that the goods and properties in question are evidence of a crime. To be valid, the assumption has to presuppose the commission or existence of the crime. That presupposition, in order to be valid, must in turn stand on an authoritative pronouncement which can only be made in a final and executory decision rendered by a court of justice. The prosecution cannot make a conclusive pronouncement, as to the existence or commission of a crime, the basic fact which, under the argument, will entitled the prosecution to retain and use the goods and properties in question. The argument assumes a fact the existence of which still remains to be proved and continues to be enveloped in the mists of the realm of uncertainties, which fact may lead to the disputed right of the prosecution to retain the goods and properties illegally seized as essential evidence of the crime. The line of reasoning the build up the argument can be restated in more abstract terms as follows: justify the means by their necessity to attain an end by starting from the premise that the end was accomplished. Such a reasoning process is fundamentally subversive to logic and is incompatible with the natural workings of the human mind. The rules governing the phenomena of diffusion and osmosis, of permeability and isotonic equilibrium, of assimilation and waste dislodgment, of development and reproduction, like all laws of life, are uniform and universal. Whether in the nuclear chromatin or the cytosome of a single protoplasmic cell of amoeba or in the sinews of the heaviest marsupial, whether in the formation of the smallest bud or in the formation of the smallest bud or in the display of color and aroma by the most beautiful flower, whether in the development of a frog or in the attainment of the perfect curves and velvety skin of a lovely girl, the uniformity and universality of biological laws are manifested unrelentlessly. Any disregard of them is fatal, and will lead to irretrievable disaster and destruction. Moral standards are the laws of social life. In a different plane and order, they are but biological laws, governing the vital processes and functions of

social organism. They are and should be uniform and universal and no single unit or organ of human society can disregard them or any one of them without alluring catastrophic consequences. Our decision is to grant all the prayers of the petition, and it was so ever since February 24, 1947, when this Court took the vote for the disposal of this case. In stating this fact we do not want to put any blame on the distinguished member who penned the decision now to be promulgated. In justice to him, we may record that the drafting of the majority decision was transferred and entrusted to him many months after a final vote had been taken on the case, and it did not take him more than a month to have ready the majority opinion. In exposing the fact we mean only to emphasize the crying need of changing a situation or a system of procedure that permits the promulgation of our decisions one year or more after a case has been submitted to us for final action. It is only part of the crusade to curtail judicial delay which we felt our duty to engaged in since it had been our privilege to sit in the Supreme Court, whose vantage in the legal field imposes upon the members thereof the role of leadership in legal thought and practice for the most effective administration of justice.

BENGZON, J., dissenting: Sanctity of the home is a by-word anywhere, anytime. The house of man was the first house of God. In Rome the citizen's dwelling was a safe asylum. Invasion thereof was anathema. Down through the centuries respect for men's abodes has remained a heritage of civilization. In England, the poorest man could in his cottage, defy all the forces of the Crown. "It may be frail; it is roof may shake; the wind may blow through it, the storm may enter; the rain may be enter; but the King England may not enter; all his forces dare not cross the threshold of the ruined tenement." His home was indeed his castle. And in the United States: "The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care. . . . "The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a search for the evidence of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence, whatever its source, will supply the place of such warrant. At the closed door of the home, be it place or hovel, even bloodhounds must wait till the law, by authoritative process, bids it open. . . . " (McLurg vs. Brenton, 123 Iowa, 368, quoted in 20 Phil., 473.) Logical culmination and practical application of the above principles embodied in our Organic Laws, is the ruling we announced in Alvarez vs. Court of First Instance of Tayabas, 64 Phil., 33, that documents unlawfully seized in a man's home must be returned irrespective of their evidentiary value provided seasonable motions are submitted. We followed the Federal rule in Boyd vs. U.S, 116 U.S., 616 and many others. We had said before that "it is better oftentimes that crimes should be unpunished than that the citizen should be liable to have his premises

invaded, his desk broken open, his private books, letters, and papers exposed to prying curiosity, ... under the direction of a mere ministerial officer" ... insensitive perhaps to the rights and feelings of others. (U.S. vs. De los Reyes and Esguerra, 20 Phil., 472, citing Cooley, Constitutional Limitations.) In the Alvarez decision we reflected that "of all rights of a citizen few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others," and while the power to search and seize is necessary to public welfare, still it mist be exercised without transgressing the constitutional rights of citizens, because the enforcement of statutes is never sufficiently important to justify violation of the basic principles of government. It is agreed that the fundamental rights of the individual guaranteed by the Constitution, must be given such a liberal construction of strict construction as will be in his favor, to prevent gradual encroachment or stealthy depreciation of such fundamental rights. (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373.) Our constitution in its Bill of Rights decrees that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Constitution, Article III, section 1 [3].) This is an improvement over the provisions of the Jones Law regarding warrants and seizures. It was designed to make our Constitution "conform entirely" to the Fourth Amendment of the U.S. Constitution. (Aruego, Framing of the Philippine Constitution, Vol., II, p. 1043.) The split between several State Supreme Courts on one side and the Federal Supreme Court on the other, about the admissibility of evidence obtained through illegal searches and seizures, was familiar to this Court (People vs. Carlos, 47 Phil., 626, 630) before it voted to adopt the Federal doctrine in Alvarez vs. Court of First Instance of Tayabas, supra. This last doctrine, applied in several subsequent cases (People vs. Sy Juco, 64 Phil., 667; Rodriguez vs. Villamil, 37 Off. Gaz., 2416) was probably known to the Constitutional Convention that, the addition, made the Constitutional mandate on the point more complete and explicit, copying exactly the wording of the Federal Constitution, a circumstance which, coupled with the citation of Boyd vs. U.S., showed adherence to the Federal doctrine that debars evidence obtained by illegal search or unlawful seizure. It is significant that the Convention readily adopted the recommendation of the Committee on Bill of Rights after its Chairman had spoken, explaining the meaning and extent of the provision on searches and seizures and specifically invoking the United States decisions of Boyd vs. U.S., 116 U.S., 616 and Gould vs. U.S., 225 U.S., 298, which the majority of this Court would now discard and overrule. (Aruego op. cit. Vol. I, P. 160; Vol., II, pp. 1043, 1044.) Therefore, it is submitted, with tall due respect, that we are not at liberty now to select between two conflicting theories. The selection has been made by the Constitutional Convention when it impliedly chose to abide by the Federal decisions, upholding to the limit the inviolability of man's domicile. Home! The tie that binds, the affection that gives life, the pause that soothes, all nestle there in an atmosphere of security. Remove that security and you destroy the home.

Under this new ruling the "King's forces" may now "cross the threshold of the ruined tenement" seize the skeleton from the family closet and rattle it in public, in court, to the vexation or shame of the unhappy occupants. That those forces may be jailed for trespass, is little consolation. That those forces may be pardoned by the King, their master, suggests fearful possibilities. The sanctuary, the castle, are gone with the wind. An opinion of Mr. Justice Cardozo in the Court of Appeals of New York is cited as authority for the majority view (People vs. Defore, 150 N.E., 585). Yet it is markworthy that, in New York, protection against unreasonable searches and seizures is not promised by the Constitution of the State but by a mere statute. (Civil Rights of Law.) (See the same case, and 56 C.J., p. 1156.) New York is the only state that denies this privilege the status of a constitutional prerogative. (Supra.) Hence the precedent is obviously inconclusive. Moreover, admitting, for purposes of argument only, that the Alvarez decision is legally erroneous, I maintain that the new doctrine should apply to future cases not to herein petitioner who had relied on it. In Santiago and Flores vs. Valenzuela, No L-670, April 30, 1947 (44 Off. Gaz., 3291, 3296) I argued for that proposition as follows: . . . The reserved right to upset previous decisions is likewise qualified by the proposition that such upsetting shall have prospective not retroactive effect. In Douglass vs. Pike Country, 101 U.S. 677 at p. 687, it was declared, "The true rule (of stare decisis) is to give a change of judicial construction ... the same effect in its operation" ... as to "a legislative amendment,i.e., make it prospective but not retroactive." And in Great Northern R. Co. vs. Sunburst Oil & Ref. Co., 287 U.S., 358, the Supreme Court, through Mr. Justice Cardozo, said: "A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly (cf. Tidal Oil Co. vs. Flanagan, 263 U.S., 444; 68 Law. ed., 382; 44 S Ct., 197, supra), that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted Gelpcke vs. Dubuque, 1 Wall., 175; 17 Law. ed., 25; Douglassvs. Pike Country, 101 U. S 677, 687; 25 Law. ed., 968, 971; Loeb vs. Columbia Twp. 179 U. S., 472, 492; 45 Law, ed., 280, 290, 21 S. Ct., 174, etc." This view is not unanimous, I know. However, inasmuch as one of the principal arguments of the opposing school of thought is that it makes the overruling decision a mere "declaratory judgment", and since that objection is untenable in this jurisdiction where declaratory relief is permitted (Rule 66), the view herein advocated future operation only future operation only should all the more be acceptable to our system of jurisprudence. More about this in the future, if I should happen to agree to an overruling of previous decisions and the question should hinge on its backward or forward application. For the present, enough to note some of the abundant literature on the point.1

BRIONES, M., disidente: Disiento de la ponencia. Estimo que debe concederse la solicitude presentada por el recurrente. Creo que en esta jurisdiccion debemos adherirmos a la jurisprudencia sentada en el asunto de Weeks vs. U.S. que se cita en la decision de la mayoria. Si en una democracia como la norteamericana ya madura y bien solidficada, fortalecida por una tradicion de siglos de respeto a las libertades individuales y ciudadanas y por el temperamento ecuanime y sereno de una raza tan admirable como la anglosajona se ha considerado necesario garantizar los fueros del ciudadano bajo la coraza de semejante doctrina, con mayor razon debemos tener y asegurar esas garantias en un democracia como la nuestra, joven, que apenas esta haciendo los pinitos iniciales en el camino de la independencia politica, y donde la demagogia y la anarquia y las tendencias peligrosas al establecimiento de la libertad a tanta costa ganada. Paras, M., conforme.

Footnotes PABLO, M.:

1

Veanse las decisiones de Inglaterra, Canada, los Estados de Alabama, Arkansas, California, Connecticut, Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utach, Vermont, Washington, West Virginia, Wyoming, Hawaii y Puerto Rico citadas por el autor en 8 Wigmore on Evidence, 3.a Ed., paginas 5-11.
2

Barton contra Leyte Asphalt & Mineral Oil Co., 46 Jur. Fil., 973.

PEOPLE VS DORIA

[G.R. No. 125299. January 22, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants. DECISION PUNO, J.: On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972.[1] The information reads: "That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law. CONTRARY TO LAW."[2] The prosecution contends the offense was committed as follows: In November 1995, members of the North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City. On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills[3]-- as money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial numbers in the police blotter.[4] The team rode in two cars and headed for the target area. At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the corner of Shaw

Boulevard and Jacinto Street while he got the marijuana from his associate.[5] An hour later, "Jun" appeared at the agreed place where PO3 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth."[6] "Jun" led the police team to "Neneth's" house nearby at Daang Bakal. The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried marijuana leaves. Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth."[8] The policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned them over to the investigator at headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at the PNP Crime Laboratory.[9] The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams.[10] The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in their community. When accused-appellant denied the charge, the men led him to their car outside and ordered him to point out the house of "Totoy." For five (5) minutes, accusedappellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house. Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as PO3 Manlangit, pushed open the door and he and his companions entered and looked around the house for about three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered her house, three men were already inside. Accused-appellant Doria, then still at the door, overheard one of the men say that they found a carton box. Turning towards them, Doria saw a box on top of the table. The box was open and had something inside. PO3 Manlangit ordered him and Violeta to go outside the house and board the car. They were brought to police headquarters where they were investigated. Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife.[11]

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and took her to her house. She found out later that the man was PO3 Manlangit. Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the table. This was the first time she saw the box. The box was closed and tied with a piece of green straw. The men opened the box and showed her its contents. She said she did not know anything about the box and its contents. Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and that her husband never returned to their house after he left for Pangasinan. She denied the charge against her and Doria and the allegation that marked bills were found in her person.[12] After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accusedappellants. The trial court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows: "WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both CONVICTED of the present charge against them. According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which explicitly state that: 'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime.' the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for destruction in accordance with law. Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City. Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review. SO ORDERED."[13] Before this Court, accused-appellant Doria assigns two errors, thus: "I THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER. II THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14] Accused-appellant Violeta Gaddao contends: "I THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED. II THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY. III THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.

IV THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT."[15] The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her person and house, and the admissibility of the pieces of evidence obtained therefrom. Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of an offense.[16] Entrapment has received judicial sanction when undertaken with due regard to constitutional and legal safeguards.[17] Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public interest in the formulation and application of decent standards in the enforcement of criminal law.[19] It also took off from a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist.[20] In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.[21] The classic definition of entrapment is that articulated by Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer." [23] It consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of the government officials rather than that of the innocent defendant, such that the crime is the product of the creative activity of the law enforcement officer. [24] It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a criminal career.[25] Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had.[26] Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted.[27] The law tolerates the use of decoys and other artifices to catch a criminal. Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the nature of a confession and avoidance.[29] It is a positive defense. Initially, an accused has the burden of providing sufficient evidence that the government induced him to commit the offense. Once established, the burden shifts to the government to show

otherwise.[30] When entrapment is raised as a defense, American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United States[31] to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his state of mind and inclination before his initial exposure to government agents.[32] All relevant facts such as the accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of mind before the crime. [33] The predisposition test emphasizes the accused's propensity to commit the offense rather than the officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary innocent and the trap for the unwary criminal."[35] If the accused was found to have been ready and willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement.[36] Some states, however, have adopted the "objective" test.[37] This test was first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct.[39] The inquiry is focused on the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct.[40] The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the offense;[41] for purposes of this test, it is presumed that a lawabiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully.[42] Official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or importuning, [43] or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not.[44] Proponents of this test believe that courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on behalf of the government to bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should not become tainted by condoning law enforcement improprieties.[45] Hence, the transactions leading up to the offense, the interaction between the accused and law enforcement officer and the accused's response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are considered in judging what the effect of the officer's conduct would be on a normal person.[46] Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the "subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory practices will be deemed impermissible.[47] Delving into the accused's character and predisposition obscures the more important task of judging police behavior and prejudices the accused more generally. It ignores the possibility that no matter what his past crimes and general disposition were, the accused might not have committed the particular crime unless confronted with inordinate inducements.[48] On the other extreme, the purely "objective" test eliminates entirely the need for considering a particular accused's predisposition. His predisposition, at least if known by the police, may have an important bearing upon the question of whether the conduct of the police and their agents was proper.[49] The undisputed fact that the accused was a dangerous and chronic offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy.[50] Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now combine both the "subjective" and "objective" tests.[51] In Cruz v.

State,[52] the Florida Supreme Court declared that the permissibility of police conduct must first be determined. If this objective test is satisfied, then the analysis turns to whether the accused was predisposed to commit the crime.[53] In Baca v. State,[54] the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation. [55] The hybrid approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently. As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug. [57] The conduct of the BIR agent was condemned as "most reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.[62] It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64] we held: "ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorised by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for

an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are cases holding the contrary."[65] The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,[66] the appellate court declared that "there is a wide difference between entrapment and instigation." The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker."[69] The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal.[71] It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is considered an absolutory cause.[72] To determine whether there is entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test first applied in United States v. Phelps has been followed in a series of similar cases.[73] Nevertheless, adopting the "objective" approach has not precluded us from likewise applying the "subjective" test. In People v. Boholst,[74] we applied both tests by examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous convictions of other crimes[75] and held that his opprobrious past and membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining his defense that led to his acquittal. The distinction between entrapment and instigation has proven to be very material in antinarcotics operations. In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory statutes.[77] They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in seor those inherently wrongful and immoral.[79] Laws defining crimes mala prohibita condemn behavior directed, not against particular individuals, but against public order.[80] Violation is deemed a wrong against society as a whole and is generally unattended with any particular harm to a definite person.[81] These offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that the police must be present at the time the offenses are committed either in an undercover capacity or through informants, spies or stool pigeons.[82]

Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds abominable abuse. Frequently, a person who accepts payment from the police in the apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the police. The informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses underworld characters to help maintain law and order is not an inspiring one.[83] Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous law enforcers' motivations are legion-- harassment, extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and hapless persons, particularly unsuspecting provincial hicks.[85] The use of shady underworld characters as informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be extravigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy, although necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87] "[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the employment of illegal means." [88] It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual.[89] It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless enforcement.[90] Courts should not allow themselves to be used as an instrument of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug offenses.[91] We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale.[92] The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.

In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed the marked money to accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later returned and handed the brick of marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police.[93] It is well-settled that except when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers,[94] or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant,[95] or that only the informant was the poseurbuyer who actually witnessed the entire transaction,[96] the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies.[97] There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses.[98] The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution proved that money was paid to accusedappellant Doria in consideration of which he sold and delivered the marijuana. Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each of the ten (10) bricks, however, were identified and marked in court. Thus: "ATTY. ARIAS, Counsel for Florencio Doria: Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box? A Q This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana brick we confiscated from the suspect, sir. Please open it and show those eleven bricks. Witness bringing out from the said box...

PROSECUTOR

ATTY. VALDEZ, Counsel for Violeta Gaddao: Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when the question posed to the witness was what was handed to him by Jun? COURT So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box showed to him and brought in front of him. COURT Q Noted.

Now tell the court, how did you know that those are the eleven bricks? x x x.

A Q A

I have markings on these eleven bricks, sir. Point to the court, where are those markings? Here, sir, my signature, my initials with the date, sir. Witness showed a white wrapper and pointing to CLM and the signature.

PROSECUTOR Q

Whose signature is that?

ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to him by the accused Jun, your Honor? PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration. COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court. ATTY. VALDEZ A We submit, your Honor.

This brick is the one that was handed to me by the suspect Jun, sir. Why do you know that that is the thing? Are you sure that is not "tikoy?"

COURT A Q A Q A Q A

Yes, your Honor. What makes you so sure? I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to the PCCL, your Honor. What are you sure of? I am sure that this is the brick that was given to me by one alias Jun, sir. What makes you so sure? Because I marked it with my own initials before giving it to the investigator and before we brought it to the PCCL, your Honor. x x x.

PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked as Exhibit "D?" COURT Q A Mark it as Exhibit "D."

To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic? This one, the signature, I made the signature, the date and the time and this Exhibit "A."

Q A

How about this one? I don't know who made this marking, sir. May it be of record that this was just entered this morning.

PROSECUTOR Q A

I am asking you about this "itim" and not the "asul." This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir. May we place on record that the one that was enclosed...

PROSECUTOR

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other entries included in the enclosure. COURT Q Noted. The court saw it.

Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?" Tag it. Mark it.

COURT Q A Q A Q

This particular exhibit that you identified, the wrapper and the contents was given to you by whom? It was given to me by suspect Jun, sir. Whereat? At the corner of Boulevard and Jacinto St., sir. How about the other items that you were able to recover? x x x.

These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. x x x."[99]

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were marked as Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams.[100] We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseurbuyer and the pusher.[101] Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant.[102]

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit: "Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. x x x."[103]

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.[104] The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of marijuana and marked bills are different matters. Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search of a moving motor vehicle;[108](3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused himself waives his right against unreasonable searches and seizures.[111] The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the search was an incident to her lawful arrest. To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise: "ATTY VALDEZ, Counsel for appellant Gaddao: We submit at this juncture, your Honor, that there will be no basis for that question. Q A Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom? It was given to me by suspect Jun, sir. Whereat?

A Q

At the corner of Boulevard and Jacinto Street, sir. How about the other items that you were able to recover? We submit at this juncture, your Honor, that there will be no basis for that

ATTY. VALDEZ: question. COURT A

There is. Answer.

These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. Whereat? At Daang Bakal near the crime scene at Shaw Boulevard, sir. And what happened upon arrival thereat? We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir. You mentioned "him?" Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir. And what happened? At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir. x x x."[112]

Q A Q A Q A Q A

SPO1 Badua testified on cross-examination that: Q A Q A Q A Q A Q A Q What was your intention in going to the house of Aling Neneth? To arrest her, sir. But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there? Yes, sir. As far as you can see, she was just inside her house? I saw her outside, sir. She was fetching water as a matter of fact? She was `sa bandang poso.' Carrying a baby? No, sir. At that particular time when you reached the house of Aling Neneth and saw her outside the house, she was not committing any crime, she was just outside the house? No, sir.

Q A Q A Q A Q A Q A Q A Q A Q A Q A Q

She was not about to commit any crime because she was just outside the house doing her daily chores. Am I correct? I just saw her outside, sir. And at that point in time you already wanted to arrest her. That is correct, is it not? Yes, sir. Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her? PO3 Manlangit, sir. You did not approach her because PO3 Manlangit approached her? Yes, sir. During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just in the side lines? I was just watching, sir. So you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this buy-bust operation was as a back-up? Yes, sir. Who got the alleged marijuana from inside the house of Mrs. Neneth? PO3 Manlangit, sir. Manlangit got the marijuana? Yes, sir. And the money from Aling Neneth? I don't know, sir. You did not even know who got the money from Aling Neneth?

PROSECUTOR: There is no basis for this question, your Honor. Money, there's no testimony on that. ATTY. VALDEZ: I was asking him precisely. PROSECUTOR: No basis. COURT: Sustained. Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount of P1,600.00 was recovered from the person of Aling Neneth. That's right?

A Q A Q A Q A

Yes, sir, the buy-bust money. What you are now saying for certain and for the record is the fact that you were not the one who retrieved the money from Aling Neneth, it was Manlangit maybe? I saw it, sir. It was Manlangit who got the money from Aling Neneth? The buy-bust money was recovered from the house of Aling Neneth, sir. It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to tell the Court? No, sir. I am through with this witness, your Honor."[113]

ATTY. VALDEZ:

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit." [114] In fact, she was going about her daily chores when the policemen pounced on her. Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion."[115] The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. [116] A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.[117] Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her coaccused in pushing drugs. Appellant Doria may have left the money in her house,[119] with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable.[120] Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of marijuana was in plain view, making its warrantless seizure valid. Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence.[121] 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.[122] The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area.[123] In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery inadvertent.[126] It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. 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.[127] 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.[128] 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.[129] PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows: "ATTY. VALDEZ: So here we are. When you and Badua arrived, Aling Neneth was inside the house? A Q A Q A Q A Q A Q A Yes, sir. Badua demanded from Aling Neneth the buy-bust money? Yes, sir. At that particular instance, you saw the carton? Yes, sir. This carton, according to you was under a table? Yes, sir, dining table. I noticed that this carton has a cover? Yes, sir. I ask you were the flaps of the cover raised or closed? It was open, sir. Not like that.

COURT Go down there. Show to the court. INTERPRETER Witness went down the witness stand and approached a carton box. A Like this, sir.

PROSECUTOR

Can we describe it? ATTY. VALDEZ Yes. PROSECUTOR One flap is inside and the other flap is standing and with the contents visible. COURT Noted. Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A At this juncture, you went inside the house? Yes, sir. And got hold of this carton? Yes, sir. Did you mention anything to Aling Neneth? I asked her, what's this... No, no. no. did you mention anything to Aling Neneth before getting the carton? I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir. Making reference to the marijuana that was given by alias Jun? Yes, sir. When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]? I just don't know if she was frisked already by Badua, sir. Who got hold of this? I was the one, sir. You were the one who got this? Yes, sir. At that particular point in time, you did not know if the alleged buy-bust money was already retrieved by Badua? Yes, sir. You went inside the house? Yes, sir. You did not have any search warrant? Yes, sir.

In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in possession of the buy-bust money because according to you, you did not know whether Badua already retrieved the buy-bust money from her? Yes, sir. How far was this from the door? Two and a half meters from the door, sir. It was in plain view. Under the table according to you? Yes, sir, dining table. Somewhere here? It's far, sir.

A Q A Q A Q A

PROSECUTOR May we request the witness to place it, where he saw it? A Q A Q A Q A Q A Here, sir. What you see is a carton? Yes, sir, with plastic. Marked "Snow Time Ice Pop?" Yes, sir. With a piece of plastic visible on top of the carton? Yes, sir. That is all that you saw? Yes, sir.

PROSECUTOR For the record, your Honor... Q You were only able to verify according to you...

PROSECUTOR Panero, wait. Because I am objecting to the words a piece of plastic. By reading it... ATTY. VALDEZ That's a piece of plastic. PROSECUTOR By reading it, it will connote... this is not a piece of plastic. ATTY. VALDEZ What is that? What can you say, Fiscal? I'm asking you? PROSECUTOR

With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one, for record purposes. COURT Leave that to the court. PROSECUTOR Leave that to the court. Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the Court, it could be "tikoy," is it not [sic]? Yes, sir. Siopao? Yes, sir. Canned goods? Yes, sir. It could be ice cream because it says Snow Pop, Ice Pop? I presumed it was also marijuana because it may ... I am not asking you what your presumptions are. I'm asking you what it could possibly be. It's the same plastic, sir.

A Q A Q A Q A Q A

ATTY. VALDEZ I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for you. COURT Continue. Next question. x x x."[130]

PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria named her and led them to her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two and a half meters away was the dining table and underneath it was a carton box. The box was partially open and revealed something wrapped in plastic. In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself checked and marked the said contents.[132] On crossexamination, however, he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was individually wrapped in old newspaper and placed inside plastic bags-- white, pink or blue in color.[133] PO3 Manlangit himself admitted on cross-examination that the contents

of the box could be items other than marijuana. He did not know exactly what the box contained that he had to ask appellant Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant was in violation of the law and the Constitution.[135] It was fruit of the poisonous tree and should have been excluded and never considered by the trial court.[136] The fact that the box containing about six (6) kilos of marijuana[137] was found in the house of accused-appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.[138] Apropos is our ruling in People v. Aminnudin,[139] viz: "The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some criminals should escape than that the government should play an ignoble part.' It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself."[140] Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit: "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. x x x."

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus delicti, as evidence in court.[141] The prosecution has clearly established the fact that in consideration of P1,600.00 which he received, accusedappellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accusedappellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed.[142] IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is reversed and modified as follows:

1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five hundred thousand pesos (P500,000.00). 2. Accused-appellant Violeta Gaddao y Catama is acquitted. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur. Panganiban, J., please see concurring opinion.

ROLDAN VS ARCA

G.R. No. L-25434 July 25, 1975 HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine Fisheries Commission, and THE PHILIPPINE NAVY, petitioners, vs. HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila (Branch 1) and MORABE, DE GUZMAN & COMPANY, respondents. Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners. J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.: A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction thereunder issued. On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of fishing vessel Tony Lex VI (one of two fishing boats in question) which had been seized and impounded by petitioner Fisheries Commissioner through the Philippine Navy. On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with respondent court, but said prayer was, however, denied. On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted respondent company's motion for reconsideration praying for preliminary mandatory injunction. Thus, respondent company took Possession of the vessel Tony Lex VI from herein petitioners by virtue of the abovesaid writ. On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of therein petitioner (respondent company herein) to prosecute as well as for failure of therein defendants (petitioners herein)to appear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie however, remained in the possession of respondent company. On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations of some provisions of the Fisheries Act and the rules and regulations promulgated thereunder. On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish caught with dynamite and sticks of dynamite were then found aboard the two vessels.

On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal charges against the crew members of the fishing vessels. On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of informations, one against the crew members of Tony Lex III, and another against the crew members of Tony Lex VI both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold the boats in custody as instruments and therefore evidence of the crime (p. 54, rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.). On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take the boats in custody. On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein petitioners. Among others, it was alleged that at the time of the seizure of the fishing boats in issue, the same were engaged in legitimate fishing operations off the coast of Palawan; that by virtue of the offer of compromise dated September 13, 1965 by respondent company to the Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew members of the vessels were settled. On October 9, 1965, petitioners, represented by the Solicitor General, opposed the abovementioned complaint, alleging among others, that: (1) the issuance of the writ would disrupt the status quo of the parties and would render nugatory any decision of the respondent court favorable to the defendant; (2) that the vessels, being instruments of a crime in criminal cases Nos. 3416 and 3417 filed with the Court of First Instance of Palawan, the release of the vessels sans the corresponding order from the above-mentioned court would deprive the same of its authority to dispose of the vessels in the criminal cases and the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of said cases; (3) that as petitioners herein were in possession of one of the vessels in point, they cannot now be deprived of the legal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner Fisheries Commissioner has the power to seize and detain the vessels pursuant to Section 5 of Republic Act No. 3215 in relation to Sections 903 and 2210 of the Revised Tariff and Customs Code; (5) that respondents herein have not exhausted administrative remedies before coming to court; (6) that the compromise agreement approved by the Secretary of Agriculture and Natural Resources and indorsed to the Fisheries Commissioner is never a bar to the prosecution of the crime perpetrated by the crew members of the vessels belonging to respondent company. And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the application for preliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners filed an urgent motion to submit additional documentary evidence. On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to the complaint with affirmative defenses, reiterating the grounds in their opposition to the issuance of a writ of preliminary mandatory injunction and adding that herein private respondent admitted committing the last violation when it offered in its letter dated September 21, 1965 to the Acting Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.).

On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance of the writ of preliminary mandatory injunction and issued the preliminary writ upon the filing by private respondent of a bond of P5,000.00 for the release of the two vessels(pp. 95102, rec.). On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and 4, 1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said vessels should not be released until further orders from the Court, and that the bond of P5,000.00 is grossly insufficient to cover the Government's losses in case the two vessels, which are worth P495,000.00, are placed beyond the reach of the Government, thus frustrating their forfeiture as instruments of the crime (pp. 103-109, rec.).1wph1.t On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.). WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and with grave abuse of discretion when he issued on October 18, 1965 the order directing the issuance of a writ of preliminary mandatory injunction and when he refused to reconsider the same. I When the respondent Judge issued the challenged order on October 18, 1965 and the writ of preliminary mandatory injunction pursuant thereto, the fishing vessels were already under the jurisdiction of the Court of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are subject to forfeiture as instruments of the crime, to be utilized as evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.). The said vessels were seized while engaging in prohibited fishing within the territorial waters of Palawan (pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First Instance of Palawan, in obedience to the rule that "the place where a criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The jurisdiction over the vessels acquired by the Palawan Court of First Instance cannot be interfered with by another Court of First Instance. The orders of October 2 and 4, 1965 by the Palawan Court of First Instance expressly direct the Philippine Navy "to hold in custody" the two vessels and that "same should not be released without prior order or authority from this Court" (pp. 108, 109, rec.). Only the Palawan court can order the release of the two vessels. Not even the Secretary of Agriculture and Natural Resources nor the Fisheries Commissioner can direct that the fishing boats be turned over to private respondent without risking contempt of court. The grave abuse of discretion committed by the respondent Judge was heightened by the fact that he did not reconsider his order of October 18, 1965 after he was informed by petitioners in their motion for reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had already issued the two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in custody the fishing boats until further orders.

It is basic that one court cannot interfere with the judgments, orders or decrees of another court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction; because if coordinate courts were allowed to interfere with each other's judgments, decrees or injunctions, the same would obviously lead to confusion and might seriously hinder the administration of justice (Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila Cordage Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs. The Leyte Auto Bus Company, et al., G.R. No. L17907, May 30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance Company, 55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64). As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole control of the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere with and change that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra). It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no way impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L27124, May 29, 1970, 33 SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was committed in the town where the Court sits, the fact that the firearms were confiscated from the accused in another town does not affect the jurisdiction of the Court" (pp. 186, 189). It is likewise of no moment that the herein respondents were not notified by the herein petitioners of the seizure of the questioned vessels by the Philippine Navy, because such previous notice is not required by law. II The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance of Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory injunction issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp. 156-157, rec.). Such a preliminary writ, like any other interlocutory order, cannot survive the main case of which it was but an incident; because "an ancillary writ of preliminary injunction loses its force and effect after the dismissal of the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et al., L-23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631; Saavedra vs. Ibaez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development Company, 50 Phil. 592, 594).1wph1.t Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was directed against the detention of the vessel Tony Lex VI for violations committed prior to August 5, 1965, and therefore cannot and does not extend to the seizure and detention of said vessel for violations on August 5 or 6, 1965, which violations were not and could not possibly be the subject-matter of said Civil Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.). III

Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for illegal fishing by the use of dynamite and without the requisite licenses. Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner to carry out the provisions of the Fisheries Act, as amended, and all rules and regulations promulgated thereunder, to make searches and seizures personally or through his duly authorized representatives in accordance with the Rules of Court, of "explosives such as ... dynamites and the like ...; including fishery products, fishing equipment, tackle and other things that are subject to seizure under existing fishery laws"; and "to effectively implement the enforcement of existing fishery laws on illegal fishing." Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the Philippine Fisheries Commission "all the powers, functions and duties heretofore exercised by the Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels and fishery matters ..." Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6) months nor more than five (5) years, aside from the confiscation and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing in violation of said Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of a second offense, the vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the Government." The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite, blasting caps and other explosives in any fishing boat shall constitute a presumption that the said dynamite and/or blasting capsand explosives are being used for fishing purposes in violation of this Section, and that the possession or discovery in any fishing boat or fish caught or killed by the use of dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner, if present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives." (Emphasis supplied). Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the Fisheries Act or any other order or regulation deriving force from its provisions, "shall be punished for each offense by a fine of not more than P5,000.00, or imprisonment, for not more than one year, or both, in the discretion of the Court; Provided, That in case of an association or corporation, the President or manager shall be directly responsible for the acts of his employees or laborers if it is proven that the latter acted with his knowledge; otherwise the responsibility shall extend only as far as fine is concerned: Provided, further, That in the absence of a known owner of the vessel, the master, patron or person in charge of such vessel shall be responsible for any violation of this Act: and Provided, finally, That in case of a second offense, the vessel together with its tackle, apparel, furniture and storesshall be forfeited to the Government" (Emphasis supplied). Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of the Philippines, the Philippine Navy has the function, among others, "to assist the proper governmental agencies in the enforcement of laws and regulations pertaining to ... fishing ..." (46 OG 5905, 5911).

Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized any official or person exercising police authority under the provisions of the Code, to search and seize any vessel or air craft as well as any trunk, package, bag or envelope on board and to search any person on board for any breach or violation of the customs and tariff laws. When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6, 1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta. Winnie, these vessels were found to be without the necessary license in violation of Section 903 of the Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code, and illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the Fisheries Law (pp. 46-47, rec.).1wph1.t The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28, 1964 issued by the Commissioner of Fisheries pending the final determination of the case against it for illegal fishing with explosives on January 21, 1964 (p. 34, rec.) and remained suspended until its apprehension on August 5 or 6, 1965 (p. 46, rec.). For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex VI was suspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila, without prejudice to the institution of a criminal case against its owner and/or operator, pursuant to the order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion for reconsideration of which order was denied by the Commissioner of Fisheries in an order dated August 17, 1964 (pp. 41-42, rec.). For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.). For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and forfeited in favor of the Government and a fine in the amount of P5,000.00 was imposed on its owners-operators, without prejudice to the filing of the necessary criminal action, pursuant to the order of June 2, 1964 of the Commissioner of Fisheries(pp. 37-38, rec.). Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the Commissioner of Fisheries (pp. 39-40, rec.).. It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the fishing vessel Tony Lex VI was suspended for one year from May 24, 1964 and was actually ordered forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of Section 12 of the Fisheries Act (pp. 37- 38. rec.).1wph1.t As a matter of fact, when apprehended on August 5 or 6, 1965, both vessels were found to be without any license or permit for coastwise trade or for fishing and unlawfully fishing with explosives, for which reason their owners and crew were accordingly indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite license (pp. 48-53, rec.).

As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing with dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as owner-operator, sought to compromise by offering to pay a fine of P21,000.00 for all said prior violations. Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said vessels subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended. Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300). The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard. Another exception to the constitutional requirement of a search warrant for a valid search and seizure, is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or a private individual may, without a warrant, arrest a person (a) who has committed, is actually committing or is about to commit an offense in his presence; (b) who is reasonably believed to have committed an offense which has been actually committed; or (c) who is a prisoner who has escaped from confinement while serving a final judgment or from temporary detention during the pendency of his case or while being transferred from one confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members of the crew of the two vessels were caught in flagrante illegally fishing with dynamite and without the requisite license. Thus their apprehension without a warrant of arrest while committing a crime is lawful. Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as an incident to a lawful arrest. The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September 13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise referred to about thirty violations of the fisheries law committed by the private respondent from March 28, 1963 to March 11, 1964. The violations by the two vessels of private respondent by reason of which these vessels were apprehended and detained by the Philippine Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965. Moreover, the power to compromise would exist only before a criminal prosecution is instituted; otherwise the Department Secretary or any of his sub-alterns can render criminal prosecutions for violations of the fisheries law a mere mockery. It is not in the public interest nor is it good policy to sustain the viewpoint that the Department Secretary can compromise criminal cases involving public, not private, offenses after the indictment had been instituted in court. The

fishing vessels together with all their equipment and the dynamites found therein are not only evidence of the crime of illegal fishing but also subject to forfeiture in favor of the Government as instruments of the crime (Art. 45, Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as amended, precludes such a compromise the moment the Fisheries Commissioner decides to prosecute the criminal action in accordance with Sections 76 and 78 of the other penal provisions of the fisheries law. Furthermore, any compromise shall be upon the recommendation of the Fisheries Commission (Section 80[i], Act No. 4003), which did not recommend such a compromise for the violation on August 5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the Fisheries Commissioner requested the Provincial Fiscal to institute the criminal cases (pp. 43-45, rec.) and the Provincial Fiscal filed the corresponding informations docketed as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against the owners and the members of the crew of the vessels (pp. 48-53, rec.). It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of Agriculture and Natural Resources approving the compromise fine of P21,000.00 for the various violations committed previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the Department Secretary "believes that the offer made by the company was an implied admission of violations of said provisions of the Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said approval was granted after the private respondent filed a motion for reconsideration of the indorsement dated March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving the offer by private respondent to pay the fine by way of compromise. There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12 of the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to said fishing boats as fishing vessels "engaged in fishing operations" or "in commercial fishing" in paragraph IV of its complaint in Civil Case No. 62799 (p. 18, rec.), as well as in its various communications to the Fisheries Commissioner (pp. 60-61, 65, 82, rec.).1wph1.t The two fishing vessels Tony Lex III and Tony Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They can also fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512; because a fishing equipment is never complete and cannot be effectively used in off-shore or deep-sea fishing without the fishing boat or fishing vessel itself. And these two vessels of private respondent certainly come under the termfishing vessels employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating the Fisheries Commission. Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference to Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every description of water craft, large or small, used or capable of being used as a means of transportation on water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs. One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil. 780). The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc. vs. Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the meaning of the term vessel used in Sections 903 and 2210 of the Tariff and Customs Code.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATED OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND THE ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS AGAINST PRIVATE RESPONDENT. Castro (Chairman,), Esguerra, Muoz Palma and Martin, JJ., concur. Teehankee, J., took no part.

PAPA VS MAGO

G.R. No. L-27360

February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners, vs. REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of First Instance of Manila, respondents. Office of the Solicitor General for petitioners. Juan T. David for respondents. ZALDIVAR, J.: This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said case. Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she

hired the trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police Department without search warrant issued by a competent court; that anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods because the goods were no longer under the control and supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them from another person without knowledge that they were imported illegally; that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from opening the nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of herein respondent Remedios Mago. Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case.

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales. Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the patties upon her posting of the appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods. On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond. On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient. In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before seizure, and identification proceedings against the nine bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in question after the corresponding duties and taxes had been paid

and said goods had left the customs premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago was purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods was affected by members of the Manila Police Department at a place outside control of jurisdiction of the Bureau of Customs and affected without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present action because they had agreed before the respondent Judge that they would not interpose any objection to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that the bond for the release of the goods was sufficient. The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in question. The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry". 2 As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and other charges must be in full. 4 The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the importation of which is effected

contrary to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8 Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs. The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the goods where about to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods. Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes because the transaction was not an original importation; that the goods were not in the hands of the importer nor subject to importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion to dismiss.

The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held: This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the goods and institute forfeiture proceedings against them? and (2) has the Court of First Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the goods? Francindy Commercial contends that since the petition in the Court of first Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of the said court. The record shows, however, that the goods in question were actually seized on October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly from the Cebu Port (Petition Annex "L"). As to goods imported illegally or released irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code (RA 1957). The Bureau of Customs has jurisdiction and power, among others to collect revenues from imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957). The goods in question are imported articles entered at the Port of Cebu. Should they be found to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to Republic Act 1937. Said proceeding should be followed; the owner of the goods may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in effect render ineffective the power of the Customs authorities under the Tariff and Customs Code and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are later enactments, the Court of First Instance should yield to the jurisdiction of the Customs authorities.

It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods. Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. 15 Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. . . ." 17 It is our considered view, therefor, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows: Thus contemporaneously with the adoption of the 4th Amendment, we find in the first Congress, and in the following second and fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house of similar place, and like goods in course of transportation and concealed in a movable vessel, where readily they could be put out of reach of a search warrant. . . . Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it was made lawful for customs officers not only to board and search vessels within their own and adjoining districts, but also to stop, search and examine any vehicle, beast or person on which or whom they should suspect there was merchandise which was subject to duty, or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probably cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . . In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they complained of was, That while the trucks were on their way, they were intercepted without any search warrant near the Agrifina Circle and taken to the Manila Police Department, where they were detained. But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining in the instant case. Thus, it has been held that: The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where 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. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable searches and seizures. The Court said: . . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is forbidden. . . . . . . The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to. The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called "bootleging" or "rum running," which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. Having declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings. WHEREFORE, judgment is hereby rendered, as follows: (a) Granting the writ of certiorari and prohibition prayed for by petitioners;

(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance of Manila; (c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case; (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and1wph1.t (e) Ordering the private respondent, Remedios Mago, to pay the costs. It is so ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and Fernando, JJ., concur.1

ALVERO VS DIZON

G.R. No. L-342

May 4, 1946

AURELIO S. ALVERO, petitioner, vs. ARSENIO P. DIZON, ET AL., respondent. Albert and Albert for petitioner. First Assistant Solicitor General Reyes and Assistant Solicitor General Alvendia for respondents. DE JOYA, J.: This is a petition for certiorari with injunction originally filed in this court. In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of treason, in criminal case No. 3 of the People's Court; that at the hearing on his petition for bail, the prosecution presented, as part of its evidence, certain documents which had been allegedly seized by soldiers of the United States Army, accompanied by Filipino guerrillas, in the petitioner's house; that petitioner immediately objected to the presentation of said documents, and called the attention of the respondent judges to the fact that he had filed a petition, in which he protested against the procedure of the government in the seizure of said documents, and asked for their return to the petitioner; that the respondents permitted the prosecution to present said documents as evidence, which were considered, upon the termination of the presentation of the evidence for both parties, in denying said petition for bail; that the petition filed on December 1, 1945, for the return of the documents allegedly seized illegally in petitioner's house, was not considered by the respondents, before the commencement of the trial of petitioner's case, on the merits, due perhaps to an involuntary oversight; that at the commencement of the trial of said criminal case No. 3, and during its course, the prosecution again presented, as evidence, against the petitioner said documents which had been taken from his house, and petitioner renewed his objection thereto, and asked for their return to him, alleging that their seizure was illegal and that their presentation would be tantamount to compelling him to testify against himself, in violation of his constitutional rights; that in deciding the question so raised, the respondent judges, in open court, stated that the prosecution might in the meanwhile continue presenting said documents, without prejudice to the final resolution of said petition, when the prosecution should finish presenting its evidence; that in concluding the presentation of its evidence and resting the case, after offering said documents as part of its evidence, the petitioner again raised the question of the admissibility of said documents, and the respondent judges then ordered the substantiation of said allegations of petitioner, and set for hearing his petition for the return of said documents; that said petition was heard on February 16, 1946, and at said hearing, the petitioner and his wife testified, without any contradiction that, on February 12, 1945, on the occasion of the arrest of the petitioner by soldiers of the United States Army, the latter searched the house of the petitioner and seized, among other things, the documents which he had in his house; that when said petition for the return of said documents was submitted for the consideration and decision of the respondent judges, the latter, on February 26, 1946, issued an order denying said petition, and admitted as competent evidence the documents presented by the prosecution, marked as Exhibits A, C, G, H, K, L, P, R, R-1, R2, U, Z, CC, DD, FF, HH; that on the same date that said order was issued, denying the petition

for the return of said documents, petitioner asked for the reconsideration of said order, which was also denied. (Petition, pars. 1-12.) And herein petitioner now claims that the respondent judges, in denying the petition for the return of said documents, acted without jurisdiction and committed a grave abuse in the exercise of their discretion, alleging that even the seizure of documents by means of a search warrant legally issued, constitutes a violation of the rights guaranteed in paragraphs 3 and 18 of section 1 of Article III of the Constitution, and, consequently, when their seizure cannot be justified by the corresponding search warrant, the court should order their immediate return; that the petitioner has no other speedy and adequate remedy for the protection of his rights guaranteed by the Constitution, other than this petition for certiorari, as the right of appeal granted by law to a person accused of a crime, is costly and highly prejudicial to the petitioner, as it presupposes that the prosecution has established the guilt of the accused by means of legal and competent evidence, as alleged in the last three (3) paragraphs of the petition. Consequently, herein petitioner asks for the annulment of the order issued by the respondent judges, on February 26, 1946, in said criminal case No. 3, entitled People of the Philippines vs. Aurelio S. Alvero, the return to him of the documents presented by the prosecution, mentioned above, and the issuance of a writ of preliminary injunction. .In their answer filed on March 21, 1946, herein respondents have substantially admitted the allegations made and contained in the first twelve (12) paragraphs of the petition, except the portions alleging that the documents in question had been obtained by means of force and intimidation or through coercion; and that certain soldiers of the American Army took certain personal properties of herein petitioner, at the time the search was made; and that the acquisition of said documents was manifestly a violation of petitioner's constitutional rights and that their admission, as evidence for the prosecution, would be tantamount to compelling petitioner, as accused, to testify against himself all of which portions have been expressly denied by the respondents. Respondents have also expressly denied the allegations contained in the remaining three (3) paragraphs of the petition. And as defenses, respondents allege (1) that petitioner himself has admitted the legality of the seizure of the documents in question in his motion for reconsideration, dated February 26, 1946; (2) that petitioner has not proven that said documents had been illegally seized for him; (3) that the seizure of the documents in question took place, on February 12, 1945, in Pasay, Rizal, which was then still a combat zone, and that the seizure of certain papers in the house of the petitioner was made by soldiers of the United States Army of Liberation or its instrumentalities; (4) that said seizure was effected lawfully under the terms of the proclamation of the Commander in Chief of the United States Liberation Forces, dated December 29, 1944, in which he declared his purpose to remove alleged collaborators, when apprehended, from any position of political and economic influence in the Philippines and to hold them in restraint for the duration of the war; (5) that the documents in question had been properly admitted as evidence for the prosecution in criminal case No. 3, as herein petitioner, as accused in said case, had expressly waived his right to object to their admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of alleged ownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, and petitioner himself has expressly admitted that said documents are not his personal papers but part of the files of the New Leaders' Association, which was proven to be an organization created, for the purpose of collaborating with the enemy; (7) and that none of the exhibits referred to in the petition has been satisfactorily

identified by the petitioner as included among the papers allegedly wrongfully seized from his house and belonging to him. Considering the allegations made by the parties in their respective pleadings, and their supporting papers, as well as the admissions made therein, the following facts appear to have been sufficiently established: (1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the United States Army, accompanied by men of Filipino Guerrilla Forces, placed herein petitioner under arrest, having been suspected of collaboration with the enemy, and seized and took certain papers from his house in Pasay, Rizal; (2) That on or about October 4, 1945, petitioner was accused of treason, in criminal case No. 3 of the People's Court; after which, on December 1, 1945, he filed a petition, demanding the return of the papers allegedly seized and taken from his house; (3) That petitioner also filed a petition for bail, at the hearing of which the prosecution presented certain papers and documents, which were admitted as part of its evidence, and said petition was denied; (4) That at the trial of the case on the merits, the prosecution again presented said papers and documents, which were admitted as part of its evidence, and were marked as exhibits, as described in the petition for certiorari, filed in this court; (5) That herein petitioner had failed to object properly to the admission of said papers and documents at the hearing on said petition for bail, and at the trial of the case on the merits, in not having insisted that the question of the legality of the search and seizure of the papers and documents taken from his house should have been litigated and finally decided first, and thus practically waived his objection to their admissibility, as evidence for the prosecution; (6) That at the hearing on his petition for the return of the papers taken from his house, held after they had been admitted as part of the evidence for the prosecution, at the hearing on the petition for bail and at the trial of the case on the merits, herein petitioner had failed to identify satisfactorily the documents now in question, and his ownership thereof; and (7) That petitioner himself in his petition for reconsideration, dated February 26, 1946, admitted the legality the legality of the seizure of the documents taken from his house, and at the hearing on his petition for bail, he himself called for some of the documents in question. The right of officers and men of the United States Army to arrest herein petitioner, as a collaborationist suspect, and to seize his personal papers, without any search warrant, in the zone of military operations, is unquestionable, under the provisions of article 4, Chapter II, Section I, of the Regulations relative to the Laws and Customs of War on Land of the Hague Conventions of 1907, authorizing the seizure of military papers in the possession of prisoners of war (Wilson, International Law, 3d ed., 1939, p.524); and also under the proclamation, dated December 29, 1944, issued by Gen. Douglas MacArthur, as Commander in Chief of the United States of Army, declaring his purpose to remove certain citizens of the Philippines, who had voluntarily given aid and comfort to the enemy, in violation of the allegiance due the Governments of the United States and the Commonwealth of the Philippines, when apprehended, from any position of political and economic influence in the Philippines and to

hold them in restraint for the duration of the war. (41 Off. Gaz., No. 2, pp. 148, 149.) As a matter of fact, petitioner himself, in his motion for reconsideration, dated February 26, 1946, expressly admitted the legality of the seizure of his personal papers and documents at the time of his arrest. The most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed or after its commission. The right to search includes in both instances that of searching the person of him who is arrested, in order to find and seize things connected with the crime as its fruits or as the means by which it was committed. (Agnello vs. United States, 269 U. S., 20.) When one is legally arrested for an offense, whatever is found in his possession or in his control may be seized and used in evidence against him; and an officer has the right to make an arrest without a warrant of a person believed by the officer upon reasonable grounds to have committed a felony. (Carroll vs. United States, 267 U. S., 132.). The majority of the states have held that the privilege against compulsory self-incrimination, which is also guaranteed by state constitutional provisions is not violated by the use in evidence of articles obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13; 150 N. E., 585.) It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return of certain papers and documents allegedly seized and taken from his house at the time of his arrest; but when he consented to their presentation, as part of the evidence for the prosecution, at the hearing on his petition for bail and at the trial of the case on the merits, without having insisted that the question of the alleged illegality of the search and seizure of said papers and documents should first have been directly litigated and established by a motion, made before the trial, for their return, he was and should be deemed to have waived his objection to their admissibility as part of the evidence for the prosecution; since the privilege against compulsory self-incrimination may be waived. (Weeks vs. United States, 232 U. S., 383; Silverthorne Lumber Co. vs. United States, 251 U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs. Carlos, 47 Phil., 626, 630, 631.) At the hearing on his petition for bail, petitioner himself requested the production of the document marked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked as Exhibit HH, which was a memorandum to Col. Suzuki, dated December 30, 1944; and the document marked as Exhibit P, which was a memorandum on Nippongo classes. And he is now, therefore, estopped from questioning their admission. Furthermore, petitioner could not properly identify many of said documents, such as Exhibit FF, nor satisfactorily establish his ownership thereof; while the prosecution has sufficiently established the fact that some of the papers now in question, such as Exhibit C, had been received at the Office of the CIC of the United States Army in the City of Manila, since February 11, 1945, that is, one day prior to the seizure of certain papers and documents in the house of the petitioner. And with reference to Exhibits C, G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that they are not his personal papers but part of the files of the New Leader's Association. And it is well established rule in this jurisdiction that in a petition for the production of papers and documents, they must be sufficiently described and identified, otherwise the

petition cannot prosper. (Liebenow vs. Philippine Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1, Rules of Court.) The purpose of the constitutional provisions against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not prohibit the Federal Government from taking advantage of unlawful searches made by a private person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.) As the soldiers of the United States Army, that took and seized certain papers and documents from the residence of herein petitioner, on February 12, 1945, were not acting as agents or on behalf of the Government of the Commonwealth of the Philippines; and that those papers and documents came in the possession of the authorities of the Commonwealth Government, through the Office of the CIC of the United States Army in Manila, the use and presentation of said papers and documents, as evidence for the prosecution against herein petitioner, at the trial of his case for treason, before the People's Court, cannot now be legally attacked, on the ground of unlawful or unreasonable searches and seizures, or on any other constitutional ground, as declared by the Supreme Court of the United States in similar cases. (Burdeau vs. McDowell, 256 U. S., 465; Gambino vs. United States, 275 U. S., 310.) In view of the foregoing, it is evident that the petition for certiorari with injunction, filed in this case, is absolutely without merit, and it is, therefore, hereby denied and dismissed with costs. So ordered. Jaranilla, Feria, Pablo, and Hilado, JJ., and Buenaventura, Santos, Santiago and T. Santos, JJ., concur.

REYES VS BAGATSING

G.R. No. L-65366 November 9, 1983 JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the City of Manila, respondent. Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner. The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1 This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4 The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter. 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to theirviews, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value

may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. 3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta. 4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing

authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31 5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the AntiBases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court. 6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for

General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."37 7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression. 8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its

grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983. 9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. WHEREFORE, the mandatory injunction prayed for is granted. No costs. Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur. De Castro, J, is on leave.

PEOPLE VS REYES

G.R. No. L-40577

August 23, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PROCOPIO REYES, POLICARPIO NACANA, FLORENTINO CLEMENTE, HERMOGENES MALLARI, MARCELINO MALLARI, CASTOR ALIPIO, and RUFINO MATIAS, defendantsappellants. Hilarion U. Jarencio for appellants. Acting Solicitor-General Pea for appellee. HULL, J.: Appellants were convicted in the Court of First Instance of Tarlac of a violation of article 133 of the Revised Penal Code, which reads: ART. 133. Offending the religious feelings.The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful. In the barrio of Macalong, municipality of La Paz, Province of Tarlac, there is a chapel where it is customary to hold what is known in local parlance as a pabasa. As stated by the lower court, "the term pabasa is applied to the act of the people, professing the Roman Catholic faith," of assembling, during Lent, "at a certain designated place, for the purpose of reading and the life, passion and death of Jesus Christ. A book known as the 'Vida, Pasion y Muerte de Jesucristo', which contains a fun account in verse of the life, passion and death of Jesus Christ, is used in this celebration." The pabasa in Macalong used to begin on Palm Sunday and continue day and night, without any interruption whatsoever, until Good Friday. As usual, refreshment and food were served in the yard adjoining the chapel, and the expenses incidental thereto were defrayed by different persons. While the pabasa was going on the evening of April 10, 1933, between 11 and 12 o'clock, the defendants Procopio Reyes, Policarpio Nacana, Florentino Clemente, Hermogenes Mallari, Marcelino Mallari, Castor Alipio, and Rufino Matias arrived at the place, carrying bolos and crowbars, and started to construct a barbed wire fence in front of the chapel. Alfonso Castillo, who was chairman of the committee in charge of the pabasa, tried to persuade them to refrain from carrying out their plan, by reminding them of the fact that it was Holy Week and that it was highly improper to construct a fence at that time of the evening. A verbal altercation ensued. When the people attending the pabasa in the chapel and those who were eating in the yard thereof noticed what was happening, they became excited and left the place hurriedly and in such confusion that dishes and saucers were broken and benches toppled over. The pabasa was discontinued and it was not resumed until after an investigation conducted by the chief of police on the following morning, which investigation led to the filing of the complaint appearing on pages 1 and 2 of the record.

Many years ago the Clemente family by informal donation gave the land on which the old chapel was erected. When it was destroyed, the present chapel was erected, and there is now a dispute as to whether the new chapel is not now impinging on the land that belongs to the Clemente family. The appellants are partisans of he Clemente family. It is to be noted that article 133 of the Revises Penal Code punishes acts "notoriously offensive to the feelings of the faithful." The construction of a fence, even though irritating and vexatious under the circumstances to those present, is not such an act as can be designated as "notoriously offensive to the faithful", as normally such an act would be a matter of complete indifference to those not present, no matter how religious a turn of mind they might be. The disturbance or interruption of any ceremony of a religious character under the old Penal Code was denounced by article 571 and was punished by arrest from one to ten days and a fine of from 15 to 125 pesetas. But this article was omitted from the Revised Penal Code and the offense, if any was committed by the appellants, is denounced in article 287 as an "unjust vexation" and punished by arresto menor or a fine ranging from 5 to 200 pesos or both. It is urged upon us that the act of building a fence was innocent and was simply to protect private property rights. The fact that this argument is a pretense only is clearly shown by the circumstances under which the fence was constructed, namely, late at night and in such a way as to vex and annoy the parties who had gathered to celebrate the pabasa and is further shown by the fact that many of the appellants saw fit to introduce as their defense a false alibi. Appellants are therefore acquitted of a violation of article 133 of the Revised Penal Code but found guilty of a violation of article 287 of the Revised Penal Code and are sentenced each to a fine of P75 with subsidiary confinement in case of insolvency, together with the costs in both instances. So ordered. Avancea, C.J., Abad Santos, Vickers, and Diaz, JJ., concur.

BAYAN VS ERMITA

G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents. x---------------------------------x G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners, vs. EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents. x---------------------------------x G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents. DECISION AZCUNA, J.:

Petitioners come in three groups. The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880. The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries. The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested. All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced. B.P. No. 880, "The Public Assembly Act of 1985," provides: Batas Pambansa Blg. 880 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes Be it enacted by the Batasang Pambansa in session assembled: Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985." Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. For purposes of this Act: (a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes. Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a governmentowned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit;|avvphi|.net (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf; (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years; (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly. Sec. 18. Effectivity. This Act shall take effect upon its approval. Approved, October 22, 1985. CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus: Malacaang Official Manila, Philippines NEWS Release No. 2 September 21, 2005 STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA On Unlawful Mass Actions In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations. The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community. Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government. We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society. The Presidents call for unity and reconciliation stands, based on the rule of law. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being tolerated. As a contentbased legislation, it cannot pass the strict scrutiny test. Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent. Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble. Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong. Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity;Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong. Respondents argue that: 1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other offenses." 2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner regulation embodied in B.P. No. 880 violates the threepronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information.6 3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public assemblys time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys program content or the statements of the speakers therein, except under the constitutional precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec.7 4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental interest to support them. 5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law. 6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10 7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies. The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows: 1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160: (a) Are these content-neutral or content-based regulations? (b) Are they void on grounds of overbreadth or vagueness? (c) Do they constitute prior restraint? (d) Are they undue delegations of powers to Mayors? (e) Do they violate international human rights treaties and the Universal Declaration of Human Rights? 2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR): (a) Is the policy void on its face or due to vagueness? (b) Is it void for lack of publication? (c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005? During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court: 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005. 2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit

executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law. The Court will now proceed to address the principal issues, taking into account the foregoing developments. Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit. Section 4 of Article III of the Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows: There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line

betweendisorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said: The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose.18 Reyes v. Bagatsing19 further expounded on the right and its limits, as follows: 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is

the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed

that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta. 4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." xxx 6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be

granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." xxx 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing (G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569) 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public placewhere and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time

B.P. No. 880 Sec. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a governmentowned and operated educational institution

to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.

which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a

clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision

granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.21 A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus: Universal Declaration of Human Rights Article 20 1. Everyone has the right to freedom of peaceful assembly and association. xxx

Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. The International Covenant on Civil and Political Rights Article 19. 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:23 public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time: Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. This brings up the point, however, of compliance with this provision. The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a golf course, he added. If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986. Considering that the existence of such freedom parks is an essential part of the laws system of regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880. 15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. 16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my corespondents to violate any law.25 At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following: Sec. 3. Definition of terms. For purposes of this Act: xxx (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. xxx Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed

and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal.

xxx Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: xxx 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected toheightened scrutiny."26 For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The

delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and toSTRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED. No costs. SO ORDERED.

PEOPLE VS BAES

G.R. No. L-46000

May 25, 1939

THE PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE M. BAES, appellant. Crispin Oben for appellant. Guillermo B. Guevarra for defendants-appellees. No appearance for plaintiff-appellee. CONCEPCION, J.: This appeal was given due course by the Court of First Instance of Laguna by virtue of a writ of mandamus issued by this court in G.R. No. 45780. The facts are the following: In the justice of the peace court of the municipality of Lumban, Province of Laguna, a complaint was filed of the following tenor: The undersigned Parish Priest of the Roman Catholic Church in the parish and municipality of Lumban, Province of Laguna, upon being duly sworn, charges Enrique Villaroca, Alejandro Lacbay and Bernardo del Rosario with an offense against religion committed as follows: That on April 14, 1937, at about 9 o'clock a.m., in this municipality of Lumban, Province of Laguna, Philippines, and within the jurisdiction of this court, the aforesaid accused, while holding the funeral of one who in life was called Antonio Macabigtas, in accordance with the rites of religious sect known as the "Church of Christ", willfully, unlawfully, and criminally caused the funeral to pass, as it in fact passed, through the chruchyard fronting the Roman Catholic Church, which churchyard belongs to the said Church, which churchyard belongs to the said Church and is devoted to the religious worship thereof, against the opposition of the undersigned complainant who, through force and threats of physical violence by the accused, was compelled to allow the funeral to pass through the said churchyard. An act committed in grave profanation of the place, in open disregard of the religious feelings of the Catholics of this municipality, and in violation of article 133 of the Revised Penal Code. (Sgd.) JOSE M.A. BAES Parish Priest Complainant (Here follow the affidavit and the list of witnesses.) The accused pleaded not guilty and waived the preliminary investigation. Before the case was remanded to the Court of First Instance of Laguna, the complainant filed a sworn statement regarding other points so that the provincial fiscal may have full knowledge of the facts and of the witnesses who could testify thereon. Upon the remand of the case to the court, the fiscal, instead of filing the corresponding information, put in the following motion for dismissal:

The complainant is the parish priest of the Roman Catholic Church of Lumban, Laguna. The said priest charges the accused with having caused, through force, intimidation and threats, the funeral of one belonging to the Church of Christ to pass through the churchyard of the Church. Apparently, the offense consists in that the corpse was that of one who belonged to the Church of Christ. The undersigned is of the opinion that the fact act imputed to the accused does not constitute the offense complained of considering the spirit of article 133 of the Revised Penal Code. At most they might be chargeable with having threatened the parish priest, or with having passed through a private property without the consent of the owner. Justice Albert, commenting on the article, has this to say: "An act is said to be notoriously offensive to the religious feelings of the faithful when a person ridicules or makes light of anything constituting a religious dogma; works or scoffs at anything devoted to religious ceremonies; plays with or damages or destroys any object of veneration by the faithful." The mere act of causing the passage through the churchyard belonging to the Church, of the funeral of one who in life belonged to the Church of Christ, neither offends nor ridicules the religious feelings of those who belong to the Roman Catholic Church. Sustaining the foregoing motion, the court by an order of August 31, 1937, dismissed the case, reserving, however, to the fiscal the right to file another information for the crime found to have been committed by the accused. From this order, the plaintiff appealed, which appeal was denied but thereafter given due course by the court by virtue of an order of this court. The appealed order is based upon the motion to dismiss filed by the fiscal. This officer questions the sufficiency of the facts alleged in the complaint, but omits an essential part thereof, to wit, that the churchyard belongs to the church, and is devoted to the religious services of said church, and it is through this churchyard that the accused, over the objection of the parish priest and through force and intimidation, caused to pass the funeral of one under the rites of the religious sect known as the Church of Christ. Had the fiscal not omitted this essential part, he would not have come to the conclusion that the acts complained of do not constitute the crime defined and penalized by article 133 of the Revised Penal Code. Moreover, the fiscal, in his aforesaid motion, denies that the unlawful act committed by the accused had offended the religious feelings of the Catholics of the municipality in which the act complained of took place. We believe that such ground of the motion is indefensible. As the fiscal was discussing the sufficiency of the facts alleged in the complaint, he cannot deny any of them, but must admit them, although hypothetically, as they are alleged. The motion raises a question of law, not one of fact. In the second place, whether or of the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those professing another faith. We, therefore, take the view that the facts alleged in the complaint constitute the offense defined and penalized in article 133 of the Revised Penal Code, and should the fiscal file an information alleging the said facts and a trial be thereafter held at which the said facts should be conclusively established, the court may find the accused guilty of the offense complained of, or that of coercion, or that of

trespass under article 281 of the Revised Penal Code, as may be proper, pursuant to section 29 of General Orders, No. 58. The appealed order is reversed and the fiscal is ordered to comply with his duty under the law, without pronouncement as to the costs. So ordered. Avancea, C.J., Villa-Real, and Diaz, JJ., concur.

Separate Opinions MORAN, J., concurring: I concur in the dispositive part on the ground that the lower court, without determining if the churchyard of the Catholic Church is a place devoted to religious worship or not, held that the passage through the said churchyard of a funeral conducted in accordance with the rites of another religion is not offensive to the feelings of the Catholic. If that funeral with ceremonies of another religion had been made to pass inside the church, it would without question be offensive top the feelings of the Catholics. The lower court, through the provincial fiscal, is thus under a duty to determine: (1) If the churchyard is a place devoted to the religious worship of the Catholic Church, and (2) if the funeral held under the rites of another religion was made to pass through the said churchyard. If the churchyard of the Catholic Church is like some of those seen in Manila churches where anyone can pass and where goods are even sold to the public, then it is not a place devoted to religious worship, and the fact that a funeral to pass through it, does not constitute a violation of article 133 of the Revised Penal Code, but, at most, the offense of threats if it is true that the parish priest was threatened when he prohibited the passage of the funeral. LAUREL, J., dissenting: I dissent. It is an accepted doctrine of construction that criminal statutes must be strictly interpreted. In fact, no person should be brought within the terms of the penal law who is not clearly so within, and no acts should be pronounced criminal unless so defined and penalized by law. The offense imputed to the defendants herein is defined in article 133 which is as follows: ART. 133. Offending religious feelings. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful. As defined, two essential elements must be present under this article, to wit: (1) That the facts complained of were performed in a place devoted to religious worship or during the celebration of any religious ceremony; and (2) that the said act or acts must be notoriously offensive to the feelings of the faithful. It is admitted that the whole incident happened in the "atrio" or "patio" of

the Catholic Church of Lumban, Laguna. There was no celebration of any religious ceremony then. The "atrio" coming from the Latin "atrium" means, an open space, generally closed, fronting a building or a church. In this case it is a churchyard. While occasional religious ceremonies may be performed in the "atrio", nevertheless this does not make the "atrio" a place devoted to religious worship under article 133 of the Revised Penal Code, any more than a public plaza, a street or any other place occasionally used for religious purposes. But assuming that the churchyard in this case is "a place devoted to religious worship" contrary to what we see and know (Justice Brown, in Hunter vs. New York O. & W. Ry. Co., 23 N.E., 9, 10; 116 N.Y., 615) is the act complained of "notoriously offensive to the feelings of the faithful?" The imputed dereliction consist in that "los acusados arriba nombrados, estando dirigiendo el entierro segun el rito de una secta religiosa llamada "Iglesia de Cristo", del cadaver de uno que en vida se llamada Antonio Macabigtas, voluntaria, ilegal y criminalmente hicieron que dicho entierro pasase, como en efecto paso, por el a trio de la Iglesia Catholica Romana frente a dicha Iglesia, el cual a trio es propiedad de dicha Iglesia y esta dedicado a los cultos religiosos de esta Iglesia y esta dedicado a los cultos religiosos deesta Iglesia, contra la oposicion del infrascrito denunciantea quien los acusados mediante fuerza y amenazas de maltrato obligaron a cederles el paso del entierro por dicho atrio." (Emphasis is mine.) As I see it the only act which is alleged to have offended the religious "feelings of the faithful" here is that of passing by the defendants through the "atrio" of the church under the circumstances mentioned. I make no reference to the alleged trespass committed by the defendants or the threats imputed to them because these acts constitute different offenses (arts. 280, 281 and 282-285) and do not fall within the purview of article 133 of the Revised Penal Code. I believe that an act, in order to be considered as notoriously offensive to the religious feelings, must be one directed against religious practice or dogma or ritual for the purpose of ridicule; the offender, for instance, mocks, scoffs at or attempts to damage an object of religious veneration; it must be abusive, insulting and obnoxious (Viada, Comentarios al Codigo Penal, 707, 708; vide alsoPacheco, Codigo Penal, p. 359). Why, may I ask, should the mere act of passing of the corpse or funeral cortege in or through a private property be characterized as notoriously offensive to the feelings of any religion or of its adherent or followers? The Lord gave, and the Lord hath taken away; blessed by the name of the Lord. (Job. I. 21.) In this case, the Lord has recalled the life of one of His creatures: and it must be His wish that the remains shall have the right of way that they may be buried "somewhere, in desolate, wind-swept space, in twilight land, in no man's land but in everybody's land. Rather than too many religions that will make us hate one another because of religious prejudices and intolerance, may I express the hope that we may grasp and imbibe the one fundamental of all religions that should make us love one another! I must decline to accept the statement made in the majority opinion that "whether or not the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those professing another faith." (Emphasis is mine.) I express the opinion that offense to religious feelings should not be made to depend upon the more or less broad or narrow conception of any given particular

religion, but should be gauged having in view the nature of the acts committed and after scrutiny of all the facts and circumstance which should be viewed through the mirror of an unbiased judicial criterion .Otherwise, the gravity or leniency of the offense would hinge on the subjective characterization of the act from the point of view of a given religious denomination or sect, and in such a case, the application of the law would be partial and arbitrary, withal, dangerous, especially in a country said to be "once the scene of religious intolerance and persecution." (Aglipay vs. Ruiz, 35 Off. Gaz., 2164.) I think that the ruling of the lower court in ordering the dismissal of the case and in reserving to the provincial fiscal the presentation of another complaint or complaints under other provisions of the Revised Penal Code, is correct and should be upheld. IMPERIAL, J.: I concur in the preceding dissenting opinion of Justice Laurel.