EN BANC

G.R. No. L-25795

October 29, 1966

ANGELINA MEJIA LOPEZ, AURORA MEJIA VILLASOR, ROY P.

VILLASOR Petitioners, vs. THE CITY JUDGE, CESAR L. PARAS,
TRINIDAD T. LAZATIN, and TERRA DEVELOPMENT
CORPORATION, Respondents.
San Juan, Africa and Benedicto and Antonio C. Amor and Associates for
petitioners.
Quasha, Asperilla, Blanco, Zafra and Tayag for respondents.
DIZON, J.:
In the month of February 1964, petitioners Roy P. Villasor, as administrator
of the intestate estate of the spouses Manuel M. Mejia and Gloria Lazatin
(Special Proceedings No. 48181 of the Court of First Instance of Manila),
together with his co-petitioners Angelina Mejia Lopez and Aurora Mejia
Villasor and other heirs of said spouses, entered into a contract with
respondent Trinidad T. Lazatin for the development and subdivision of three
parcels of land belonging to said intestate estate. Subsequently Lazatin
transferred his rights under the contract to the Terra Development
Corporation. Months later, petitioners and other co-heirs filed an action in
the Court of First Instance of Quezon City (Civil Case No. Q-8344) for the
rescission of said contract for alleged gross and willful violation of its terms.
Thereafter, Lazatin and the Terra Development Corporation, in turn, filed
with the Fiscal's Office of the City of Angeles a complaint against petitioners
for an alleged violation of the provisions of Article 172 in relation to those of
Article 171, paragraph 4, of the Revised Penal Code. After conducting a
preliminary examination in connection therewith, the City Fiscal of Angeles
filed with the Court of said City an information charging petitioners with the
crime of falsification of a private document upon the allegation that they
made it appear in the contract mentioned heretofore that Aurora M. Villasor
was the "guardian" of the minor George L. Mejia and that Angelina M.
Lopez was similarly the "guardian" of the minor Alexander L. Mejia, when
in truth and in fact they knew that they were not the guardians of said minors
on the date of the execution of the document (Criminal Case No. C-2268).
Upon petition of the parties thus charged, the City Fiscal of Angeles
reinvestigated the case on March 7, 1965 to give them an opportunity to
present exculpatory evidence, and after the conclusion of the reinvestigation
the parties charged moved for the dismissal of the case mainly on the ground
that the City Court of Angeles had no jurisdiction over the offense because
the private document that contained the alleged false statement of fact was
signed by them outside the territorial limits of said city. As the resolution of
this motion to dismiss was delayed and in the meantime the City Court had
set Criminal Case No. C-2268 for arraignment, the defendants secured from
said court several postponements of the arraignment.
Finally, in view of the City Fiscal's continued failure to act on the motion to
dismiss the case, petitioners filed on November 26, 1965 with the City Court
a motion to quash upon the ground that said court had no jurisdiction over
the offense charged. The complainants in the case - with the conformity of

the City Fiscal - filed an opposition thereto, and on February 3, 1966 the
respondent judge denied said motion to quash and reset the arraignment of
all the defendants on March 5 of the same year. In view thereof, petitioners
filed the present action for certiorariand prohibition.

evident, therefore, that the place where the crime is committed is the place
where the document is actually falsified, and that the improper or illegal use
of the document thereafter is in no wise a material or essential element of the
crime of falsification of a private document; . . . .

Upon the foregoing facts the only question to be resolved is whether or not
the City Court of Angeles City has jurisdiction to try and decide Criminal
Case No. C-2268 for alleged falsification of a private document by the
parties named in the information.

Applying the above ruling to the facts before Us, it would appear that if the
private document subject of the information was falsified by the persons
therein charged, the act of falsification - the signing of the document and the
coetaneous intent to cause damage - was committed and consummated
outside the territorial jurisdiction of the City of Angeles, and that whether the
falsified private document was thereafter put or not put to the illegal use for
which it was intended, or was signed by the other contracting party within
the territorial jurisdiction of the City of Angeles is in no wise a material or
essential element of the crime of falsification of the private document, nor
could it in any way change the fact that the act of falsification charged was
committed outside the territorial jurisdiction of Angeles City. Thus, that the
City Court of Angeles has, no jurisdiction over the offense charged is beyond
question.

It is clear that petitioners are not charged with having used a falsified
document, in violation of the last paragraph of Article 172 of the Revised
Penal Code. The charge against them is that of having falsified a private
document by knowingly and willfully stating therein that Aurora M. Villasor
and Angelina M. Lopez were the "guardians" of their minor brothers George
and Alexander, respectively, when in fact they knew that, at the time they
made such written statement, it was Carolina M. de Castro who was the
judicial guardian of said minors.
It is settled law in criminal actions that the place where the criminal offense
was committed not only determines the venue of the action but is an
essential element of jurisdiction (U.S. vs. Pagdayuman 5 Phil. 265). Thus,
under the provisions of Section 86 of the Judiciary Act of 1948, municipal
courts have original jurisdiction only over criminal offenses committed
within their respective territorial jurisdiction.
In the present case, it is the claim of petitioners - a claim supported by the
record - that Angelina M. Lopez and Aurora M. Villasor signed the private
document wherein they are alleged to have made a false statement of fact,
the first within the territorial jurisdiction of Makati, and the second within
the territorial jurisdiction of Quezon City, both within the province of Rizal.
We now come to consider the question of when and where is the offense of
falsification of a private document deemed consummated or committed.
Upon this point, We have ruled clearly and definitely in U.S. vs. Infante, 36
Phil. 146, that the crime of falsification of a private document defined and
penalized by Article 304 of the Penal Code (now paragraph 2, Article 172 of
the Revised Penal Code) is consummated when such document is actually
falsified with the intent to prejudice a third person, whether such falsified
document is or is not thereafter put to the illegal use for which it was
intended.
Again in U.S. vs. Barretto, 36 Phil. p. 207, We said:
. . . The contention of counsel would seem to be that the information was
defective, in that it fails to set forth expressly the place where improper and
illegal use was made of the falsified document, an allegation which counsel
for appellant insists was absolutely essential for the proper determination of
the court clothed with jurisdiction over the alleged offense. But under the
definition of the crime of falsification of a private document as set forth in
Article 304 of the Penal Code, the offense is consummated at the time when
and at the place where the document is falsified to the prejudice of or with
the intent to prejudice a third person, and this whether the falsified document
is or is not put to the improper or illegal use for which it was intended. It is

Respondents, however, contend that the motion to quash filed by the

defendants necessarily assumes the truth of the allegation of the information
to the effect that the offense was committed within the territorial jurisdiction
of Angeles City and that they may not be allowed to disprove this at this
early stage of the proceedings. This is not exactly the law on the matter at
present. It was the law applicable to a demurrer - now obsolete - to an
information. The motion to quash now provided for in Rule 117 of the Rules
of Court is manifestly broader in scope than the demurrer, as it is not limited
to defects apparent upon the face of the complaint or information but extends
to issues arising out of extraneous facts, as shown by the circumstance that,
among the grounds for a motion to quash, Section 2 of said Rule provides for
former jeopardy or acquittal, extinction of criminal action or liability,
insanity of the accused etc., which necessarily involve questions of fact in
the determination of which a preliminary trial is required.
In the present case, the portion of the record of the reinvestigation which was
submitted to the respondent judge for consideration in connection with the
resolution of the motion to quash filed by the defendants shows beyond
question that the offense charged was committed far beyond the territorial
jurisdiction of Angeles City.
On the propriety of the writs prayed for, it may be said that, as a general rule,
a court of equity will not issue a writ of certiorari to annul an order of a
lower court denying a motion to quash, nor issue a writ of prohibition to
prevent said court from proceeding with the case after such denial, it being
the rule that upon such denial the defendant should enter his plea of not
guilty and go to trial and, if convicted, raise on appeal the same legal
questions covered by his motion to quash. In this as well as in other
jurisdictions however, this is no longer the hard and fast rule.
The writs of certiorari and prohibition, as extra-ordinary legal remedies, are,
in the ultimate analysis, intended to annul void proceedings; to prevent the
unlawful and oppressive exercise of legal authority and to provide for a fair
and orderly administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47
Phil. 385, We took cognizance of a petition for certiorari and prohibition
1

although the accused in the case could have appealed in due time from the
order complained of, our action in the premises being based on the public
welfare and the advancement of public policy. In Dimayuga vs. Fajardo, 43
Phil. 304, We also admitted a petition to restrain the prosecution of certain
chiropractors although, if convicted, they could have appealed. We gave due
course to their petition for the orderly administration of justice and to avoid
possible oppression by the strong arm of the law. And in Arevalo vs.
Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial
court's action admitting an amended information was sustained despite the
availability of appeal at the proper time.
More recently, We said the following in Yap vs. the Hon. D. Lutero,
etc., G.R. No. L-12669, April 30, 1959:
Manifestly, the denial, by respondent herein, of the motion to quash the
information in case No. 16443, may not be characterized as "arbitrary" or
"despotic", or to be regarded as amounting to "lack of jurisdiction". The
proper procedure, in the event of denial of a motion to quash, is for the
accused, upon arraignment, to plead not guilty and reiterate his defense of
former jeopardy, and, in case of conviction, to appeal therefrom, upon the
ground that he has been twice put in jeopardy of punishment, either for the
same offense, or for the same act, as the case may be. However, were we to
require adherence to this pretense, the case at bar would have to be dismissed
and petitioner required to go through the inconvenience, not to say the
mental agony and torture, of submitting himself to trial on the merits in case
No. 16443, apart from the expenses incidental thereto, despite the fact that
his trial and conviction therein would violate one of his constitutional rights,
and that, on appeal to this Court, we would, therefore, have to set aside the
judgment of conviction of the lower court. This would, obviously, be most
unfair and unjust. Under the circumstances obtaining in the present case, the
flaw in the procedure followed by petitioner herein may be overlooked, in
the interest of a more enlightened and substantial justice.
Indeed, the lack of jurisdiction of the City Court of Angeles over the
criminal offense charged being patent, it would be highly unfair to compel
the parties charged to undergo trial in said court and suffer all the
embarrassment and mental anguish that go with it.
WHEREFORE, judgment is hereby rendered declaring that the offense
charged in the information filed in Criminal Case No. C-2268 of the City
Court of Angeles City is not within the jurisdiction of said court and that,
therefore, said court is hereby restrained and prohibited from further
proceedings therein. Costs against the private respondents.
Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P., Zaldivar,
Sanchez and Castro, JJ., concur.

SECOND
[G.R.

DIVISION
Nos.

L-74053-54.

January

20,

1988.]

PEOPLE
OF
THE
PHILIPPINES
and
SAN
MIGUEL
CORPORATION, Petitioners, v. NATHANIEL M. GROSPE, Presiding
Judge, Branch 44, Regional Trial Court of Pampanga and MANUEL
PARULAN, Respondents.

SYLLABUS

1. CRIMINAL LAW; ESTAFA BY POSTDATING A BAD CHECK AND

VIOLATION OF THE BOUNCING CHECKS LAW, DISTINGUISHED.
In the crime of Estafa by postdating or issuing a bad check, deceit and
damage are essential elements of the offense (U.S. v. Rivera, 23 Phil. 383390) and have to be established with satisfactory proof to warrant
conviction. For Violation of the Bouncing Checks Law, on the other hand,
the elements of deceit and damage are not essential nor required. An
essential element of that offense is knowledge on the part of the maker or
drawer of the check of the insufficiency of his funds (Lozano v. Hon.
Martinez, Nos. L-63419, etc., December 18, 1986; 146 SCRA 323; Dingle v.
IAC, G.R. No. 75243, March 16, 1987, 148 SCRA 595). The Anti-Bouncing
Checks Law makes the mere act of issuing a worthless check a special
offense punishable thereunder (Cruz v. IAC, No. L-66327, May 28, 1984,
129 SCRA 490. Malice and intent in issuing the worthless check are
immaterial, the offense being malum prohibitum (Que v. People of the
Philippines, et. al., G.R. Nos. 75217-18, September 21, 1987). The gravamen
of the offense is the issuance of a check, not the non-payment of an
obligation
(Lozano
v.
Hon.
Martinez,
supra).
2. CRIMINAL PROCEDURE; VENUE IN TRANSITORY CRIME; RULE
WHERE SOME ACTS AND/OR ALL THE ACTS MATERIAL AND
ESSENTIAL TO THE CRIME AND REQUISITE TO ITS
CONSUMMATION, OCCUR. Section 14 (a) of Rule 110 of the Revised
Rules of Court, which has been carried over in Section 15(a) of Rule 110 of
the 1985 Rules of Criminal Procedure, specifically provides: "SEC. 14. Place
where action is to be instituted. (a) In all criminal prosecutions the action
shall be instituted and tried in the court of the municipality or province
wherein the offense was committed or any one of the essential ingredients
thereof took place." In other words, a person charged with a transitory crime
may be validly tried in any municipality or province where the offense was
in part committed. In transitory or continuing offenses in which some acts
material and essential to the crime and requisite to its consummation occur in
one province and some in another, the Court of either province has
jurisdiction to try the case, it being understood that the first Court taking
cognizance of the Case will exclude the others (Tuzon v. Cruz. No. L-27410,

August 28, 1975, 66 SCRA 235). However, if all the acts material and
essential to the crime and requisite of its consummation occurred in one
municipality or territory, the Court of that municipality or territory has the
sole jurisdiction to try the case (People v. Yabut, L-42902, April 29, 1977, 76
SCRA
624).
3. CRIMINAL LAW; ESTAFA BY POSTDATING A BAD CHECK, A
TRANSITORY CRIME; UTTERANCE AND DELIVERY, OF DECISIVE
IMPORTANCE. Estafa by postdating or issuing a bad check, may be a
transitory or continuing offense. Its basic elements of deceit and damage
may arise independently in separate places (People v. Yabut, supra). In this
case, deceit took place in San Fernando, Pampanga, while the damage was
inflicted in Bulacan where the check was dishonored by the drawee bank in
that place (See People v. Yabut, supra). Jurisdiction may, therefore, be
entertained by either the Bulacan Court or the Pampanga Court. For while
the subject check was issued in Guiguinto, Bulacan, it was not completely
drawn thereat, but in San Fernando, Pampanga, where it was uttered and
delivered. What is of decisive importance is the delivery thereof. The
delivery of the instrument is the final act essential to its consummation as an
obligation. (People v. Larue, 83 P. 2d 725, cited in People v. Yabut, supra).
4. ID.; BOUNCING CHECKS CASE; OFFENSE TRANSITORY IN
NATURE; KNOWLEDGE ON THE PART OF THE DRAWER OF THE
CHECK OF THE INSUFFICIENCY OF HIS FUNDS, ESSENTIAL. In
respect of the Bouncing Checks Case, the offense also appears to be
continuing in nature. It is true that the offense is committed by the very fact
of its performance (Colmenares v. Villar, No. L-27126, May 29, 1970, 33
SCRA 186); and that the Bouncing Checks Law penalizes not only the fact
of dishonor of a check but also the act of making or drawing and issuance of
a bouncing check (People v. Hon. Veridiano, II, No. L-62243, 132 SCRA
523). The case, therefore, could have been filed also in Bulacan. As held in
Que v. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987
"the determinative factor (in determining venue) is the place of the issuance
of the check." However, it is likewise true that knowledge on the part of the
maker or drawer of the check of the insufficiency of his funds, which is an
essential ingredient of the offense is by itself a continuing eventuality,
whether the accused be within one territory or another (People v. Hon.
Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial
Court
of
Pampanga.
5. CRIMINAL PROCEDURE; VENUE DETERMINED BY THE
ALLEGATIONS IN THE INFORMATION. And, as pointed out in the
Manzanilla case, jurisdiction or venue is determined by the allegations in the
Information, which are controlling (Arches v. Bellosillo, 81 Phil. 190, 193,
cited in Tuzon v. Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The
Information filed herein specifically alleges that the crime was committed in
San Fernando, Pampanga, and, therefore, within the jurisdiction of the Court
below.
6. ID.; DISMISSAL OF CRIMINAL CASES BASED ON ALLEGED

LACK OF JURISDICTION; CORRECTIBLE BY CERTIORARI. The

dismissal of the subject criminal cases by Respondent Judge, predicated on
his lack of jurisdiction, is correctible by Certiorari. The error committed is
one of jurisdiction and not an error of judgment on the merits. Well-settled is
the rule that questions covering jurisdictional matters may be averred in a
petition for certiorari, inclusive of matters of grave abuse of discretion,
which are equivalent to lack of jurisdiction (City of Davao v. Dept. of Labor,
No. L-19488, January 30, 1965, 13 SCRA 111, 115). An error of jurisdiction
renders whatever order of the Trial Court null and void.
7. ID.; DISMISSAL OF A CRIMINAL CASE NOT BASED ON A
DECISION ON THE MERITS BUT ON THE ERRONEOUS
CONCLUSION OF LACK OF JURISDICTION, NULL AND VOID.
The present petition for Certiorari seeking to set aside the void Decision of
Respondent Judge does not place Respondent-accused in double jeopardy for
the same offense. It will be recalled that the questioned judgment was not an
adjudication on the merits. It was a dismissal upon Respondent Judges
erroneous conclusion that his Court had no "territorial jurisdiction" over the
cases. Where an order dismissing a criminal case is not a decision on the
merits, it cannot bar as res judicata a subsequent case based on the same
offense (People v. Bellosillo, No. L-18512, December 27, 1963, 9 SCRA
835, 837).

DECISION

MELENCIO-HERRERA, J.:

A special civil action for Certiorari seeking to set aside the Decision of
respondent Presiding Judge of Branch 44, Regional Trial Court of
Pampanga, dismissing Criminal Case No. 2800 for Violation of B.P. Blg. 22,
and Criminal Case No. 2813 for Estafa, for being "bereft of jurisdiction to
pass judgment on the accused on the basis of the merits of these
cases."cralaw
virtua1aw
library
Respondent-accused, Manuel Parulan, is an authorized wholesale dealer of
petitioner San Miguel Corporation (SMC, for short) in Bulacan.
In Criminal Case No. 2800 of the Regional Trial Court of Pampanga, he was
charged with Violation of the Bouncing Checks Law (B.P. Blg. 22) for
having issued a check on 13 June 1983 for P86,071.20) in favor of SMC but
which was dishonored for having been drawn against "insufficient funds"
and, in spite of repeated demands, for having failed and refused to make
good said check to the damage and prejudice of SMC.
In Criminal Case No. 2813 of the same Court, Respondent-accused was
charged with Estafa under Article 315, paragraph 2(d) of the Revised Penal
Code for having made out a check on 18 June 1983 in the sum of P11,918.80
in favor of SMC in payment of beer he had purchased, but which check was
3

refused payment for "insufficient funds" and, in spite of repeated demands,

for having failed and refused to redeem said check to the damage and
prejudice
of
SMC.
The two cases were tried jointly, the witnesses for both prosecution and
defense
being
the
same
for
the
two
suits.
Based on the facts and the evidence, Respondent Judge arrived at the
following
"Findings
and
Resolution:"
"From the welter of evidence adduced in these two cases, this Court is
convinced that the two checks involved herein were issued and signed by the
accused in connection with the beer purchases made by him on various
occasions at the Guiguinto sales office of SMC at Guiguinto, Bulacan and
which checks he handed and delivered to the sales Supervisor of SMC, Mr.
Ruben Cornelio, who holds office in that municipality. The Court finds it
rather difficult to believe the claim and testimony of the accused that these
checks which he admittedly signed and which he delivered to Mr. Cornelio
in blank were filled up without his knowledge particularly the amounts
appearing therein which in the case of the check involved in Criminal Case
No. 2800 amounted to P86,071.20, and, in the case of the checks involved in
Criminal Case No. 2813, amounted to P11,918.80. The accused had been
engaged in business for some time involving amounts that are quite
considerable, and it is hard to believe that he will agree to this kind of
arrangement which placed or exposed him to too much risks and
uncertainties.
But even as this Court is convinced that the accused had issued these checks
to the representative of SMC on the occasions testified to in these cases by
the witnesses for the prosecution which two checks were subsequently
dishonored due to lack of funds resulting in damage to SMC, the offended
party herein, this Court, after considering the totality of the evidence and the
circumstances that attended the issuance of these two checks until they were
both dishonored by the drawee bank, the Planters Development Bank, at
Santa Maria, Bulacan, has come to the conclusion that it is bereft of
jurisdiction to pass judgment on the accused on the basis of the merits of
these
cases."
which
he
reasoned
out,
thus:
"Deceit and damage are the two essential elements that make up the offenses
involving dishonored checks. And in order that this Court may have
jurisdiction to try these cases, it must be established that both or any one of
these elements composing the offenses charged must occur or take place
within the area over which this Court has territorial jurisdiction. Here,
however, it is clear that none of these elements took place or occurred within
the
jurisdictional
area
of
this
Court.
As gleaned from the evidence, the two checks involved herein were issued
by the accused at Guiguinto, Bulacan. They were delivered and handed to
Supervisor Ruben Cornelio of San Miguel Corporation in his capacity as the
representative of the company holding office in that municipality where the
transactions of the accused with SMC took place. It was before Supervisor

funds in his bank, the Planters Development Bank, at Santa Maria, Bulacan,
only
to
turn
out
later
on
that
this
was
not
so.
The other element of damage pertaining to the offenses charged in these
cases was inflicted on the offended party, the SMC, right at the moment the
checks issued by the accused were dishonored by the Planters Development
Bank, the drawee bank, at Santa Maria, Bulacan which received them from
the BPI, San Fernando, Pampanga branch for clearing purposes. The
argument advanced by the prosecution in its memorandum filed herein that
the two checks were deposited by SMC at the BPI, San Fernando, Branch,
San Fernando, Pampanga, where it maintained its accounts after receiving
these checks from its Guiguinto Sales Office which bank later on made the
corresponding deductions from the account of SMC in the amounts covered
by the dishonored checks upon receiving information that the checks so
issued by the accused had been dishonored by the drawee bank at Santa
Maria, Bulacan, is inconsequential. As earlier stated, the element of damage
was inflicted on the offended party herein right at the moment and at the
place where the checks issued in its favor were dishonored which is in Santa
Maria,
Bulacan."
Respondent

Judge

then

decreed:

"WHEREFORE, and in view of all the foregoing, judgment is hereby

rendered dismissing these
cases for
lack of jurisdiction.

P86,071.20 in favor of SMC, which was received by the SMC Supervisor at

Guiguinto, Bulacan. The check was forwarded to the SMC Regional Office
at San Fernando, Pampanga, where it was delivered to and received by the
SMC Finance Officer, who then deposited the check with the Bank of the
Philippine Islands (BPI), San Fernando Branch, which is the SMC
depository bank. On July 8, 1983, the SMC depository bank received a
notice of dishonor of the said check for "insufficiency of funds" from the
PDB, the drawee bank in Santa Maria, Bulacan. This dishonored check is the
subject of the charge of Violation of the Bouncing Checks Law (BP Blg. 22)
in Criminal Case No. 2800 of the lower Court (hereafter, the Bouncing
Checks
Case).
(2) On June 18, 1983, Respondent-accused likewise issued PDB Check No.
19040872 in the amount of P11,918.80 in favor of SMC, which was received
also by the SMC Supervisor at Guiguinto, Bulacan, as direct payment for the
spot sale of beer. That check was similarly forwarded by the SMC
Supervisor to the SMC Regional Office in San Fernando, Pampanga, where
it was delivered to the Finance Officer thereat and who, in turn, deposited
the check with the SMC depository bank in San Fernando, Pampanga. On
July 8, 1983, the SMC depository bank received a notice of dishonor for
"insufficiency of funds" from the drawee bank, the PDB, in Santa Maria,
Bulacan. This dishonored check is the subject of the prosecution for Estafa
by post-dating or issuing a bad check under Article 315, paragraph 2(d) of
the Revised Penal Code in Criminal Case No, 2813 of the lower Court
(briefly,
the
Estafa
Case).

"The bail bond posted by the accused in these cases are ordered cancelled."
This Petition for Certiorari challenges the dismissal of the two criminal cases
on the ground that they were issued with grave abuse of discretion
amounting
to
lack
of
jurisdiction.
Respondent-accused adopts the contrary proposition and argues that the
order of dismissal was, in effect, an acquittal not reviewable by certiorari,
and that to set the order aside after plea and trial on the merits, would subject
Respondent-accused
to
double
jeopardy.
Upon the attendant facts and circumstances we uphold the Petition.
The principal ground relied upon by Respondent Judge in dismissing the
criminal cases is that deceit and damage, the two essential elements that
make up the offenses involving dishonored checks, did not occur within the
territorial jurisdiction of his Court in Pampanga, but rather in Bulacan where
false assurances were given by Respondent-accused and where the checks he
had issued were dishonored. The People maintain, on the other hand, that
jurisdiction is properly vested in the Regional Trial Court of Pampanga.
At the outset, it should be pointed out, as the Solicitor General has aptly
called attention to, that there are two dishonored checks involved, each the
subject of different penal laws and with different basic elements: (1) On June
13, 1983, Respondent-accused issued Planters Development Bank (Santa
Maria, Bulacan Branch) [PDB] Check No. 19040865 in the sum of

In the crime of Estafa by postdating or issuing a bad check, deceit and

damage are essential elements of the offense (U.S. v. Rivera, 23 Phil. 383390) and have to be established with satisfactory proof to warrant
conviction.
For Violation of the Bouncing Checks Law, on the other hand, the elements
of deceit and damage are not essential nor required. An essential element of
that offense is knowledge on the part of the maker or drawer of the check of
the insufficiency of his funds (Lozano v. Hon. Martinez, Nos. L-63419, etc.,
December 18, 1986; 146 SCRA 323; Dingle v. IAC, G.R. No. 75243, March
16, 1987, 148 SCRA 595). The Anti-Bouncing Checks Law makes the mere
act of issuing a worthless check a special offense punishable thereunder
(Cruz v. IAC, No. L-66327, May 28, 1984, 129 SCRA 490. Malice and
intent in issuing the worthless check are immaterial, the offense being
malum prohibitum (Que v. People of the Philippines, et. al., G.R. Nos.
75217-18, September 21, 1987). The gravamen of the offense is the issuance
of a check, not the non-payment of an obligation (Lozano v. Hon. Martinez,
supra).
A. With the distinction clarified, the threshold question is whether or not
venue was sufficiently conferred in the Regional Trial Court of Pampanga in
the
two
cases.
Section 14 (a) of Rule 110 of the Revised Rules of Court, which has been
carried over in Section 15(a) of Rule 110 of the 1985 Rules of Criminal
4

Procedure,
"SEC.

14.

specifically
Place

where

action

is

provides:
to

be

instituted.

(a) In all criminal prosecutions the action shall be instituted and tried in the
court of the municipality or province wherein the offense was committed or
any one of the essential ingredients thereof took place."
In other words, a person charged with a transitory crime may be validly tried
in any municipality or province where the offense was in part committed. In
transitory or continuing offenses in which some acts material and essential to
the crime and requisite to its consummation occur in one province and some
in another, the Court of either province has jurisdiction to try the case, it
being understood that the first Court taking cognizance of the Case will
exclude the others (Tuzon v. Cruz. No. L-27410, August 28, 1975, 66 SCRA
235). However, if all the acts material and essential to the crime and requisite
of its consummation occurred in one municipality or territory, the Court of
that municipality or territory has the sole jurisdiction to try the case (People
v.
Yabut,
L-42902,
April
29,
1977,
76
SCRA
624).
Estafa by postdating or issuing a bad check, may be a transitory or
continuing offense. Its basic elements of deceit and damage may arise
independently in separate places (People v. Yabut, supra). In this case, deceit
took place in San Fernando, Pampanga, while the damage was inflicted in
Bulacan where the check was dishonored by the drawee bank in that place
(See People v. Yabut, supra). Jurisdiction may, therefore, be entertained by
either
the
Bulacan
Court
or
the
Pampanga
Court.
For while the subject check was issued in Guiguinto, Bulacan, it was not
completely drawn thereat, but in San Fernando, Pampanga, where it was
uttered and delivered. What is of decisive importance is the delivery thereof.
The delivery of the instrument is the final act essential to its consummation
as an obligation. (People v. Larue, 83 P. 2d 725, cited in People v. Yabut,
supra). For although the check was received by the SMC Sales Supervisor at
Guiguinto, Bulacan, that was not the delivery in contemplation of law to the
payee, SMC. Said supervisor was not the person who could take the check as
a holder, that is, as a payee or indorsee thereof, with the intent to transfer
title thereto. The rule is that the issuance as well as the delivery of the check
must be to a person who takes it as a holder, which means "the payee or
indorsee of a bill or note, who is in possession of it, or the bearer, thereof"
(Sec. 190, Negotiable Instruments Law, cited in People v. Yabut, supra.)
Thus, said representative had to forward the check to the SMC Regional
Office in San Fernando, Pampanga, which was delivered to the Finance
Officer thereat who, in turn, deposited it at the SMC depository bank in San
Fernando, Pampanga. The element of deceit, therefore, took place in San
Fernando, Pampanga, where the rubber check was legally issued and
delivered so that jurisdiction could properly be laid upon the Court in that
locality.
"The estafa charged in the two informations involved in the case before Us
appears to be transitory or continuing in nature. Deceit has taken place in

Malolos, Bulacan, while the damage in Caloocan City, where the checks
were dishonored by the drawee banks there. Jurisdiction can, therefore, be
entertained by either the Malolos court or the Caloocan court. While the
subject checks were written, signed, or dated in Caloocan City, they were not
completely made or drawn there, but in Malolos, Bulacan, where they were
uttered and delivered. That is the place of business and residence of the
payee. The place where the bills were written, signed or dated does not
necessarily fix or determine the place where they were executed. What is of
decisive importance is the delivery thereof. The delivery of the instrument is
the final act essential to its consummation as an obligation (People v. Larue,
83 P. 2d 725). An undelivered bill or note is inoperative. Until delivery, the
contract is revocable (Ogden, Negotiable Instruments, 5th ed., at 107). And
the issuance as well as the delivery of the check must be to a person who
takes it as a holder, which means" (t)he payee or indorsee of a bill or note,
who is in possession of it, or the bearer thereof" (Sec. 190, Negotiable
Instruments Law). Delivery of the check signifies transfer of possession,
whether actual or constructive, from one person to another with intent to
transfer title thereto (Bailey, Brady on Bank Checks, 3rd ed. at 57-59; Sec.
190, Negotiable Instruments Law). Thus, the penalizing clause of the
provision of Art. 315, par. 2(d) states: By postdating a check, or issuing a
check in payment of an obligation when the offender had no funds in the
bank, or his funds deposited therein were not sufficient to cover the amount
of the check, Clearly, therefore, the element of deceit thru the issuance and
delivery of the worthless checks to the complainant took place in Malolos,
Bulacan, conferring upon a court in that locality jurisdiction to try the case."
In respect of the Bouncing Checks Case, the offense also appears to be
continuing in nature. It is true that the offense is committed by the very fact
of its performance (Colmenares v. Villar, No. L-27126, May 29, 1970, 33
SCRA 186); and that the Bouncing Checks Law penalizes not only the fact
of dishonor of a check but also the act of making or drawing and issuance of
a bouncing check (People v. Hon. Veridiano, II, No. L-62243, 132 SCRA
523). The case, therefore, could have been filed also in Bulacan. As held in
Que v. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987
"the determinative factor (in determining venue) is the place of the issuance
of the check." However, it is likewise true that knowledge on the part of the
maker or drawer of the check of the insufficiency of his funds, which is an
essential ingredient of the offense is by itself a continuing eventuality,
whether the accused be within one territory or another (People v. Hon.
Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial
Court
of
Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is
determined by the allegations in the Information, which are controlling
(Arches v. Bellosillo, 81 Phil. 190, 193, cited in Tuzon v. Cruz, No. L-27410,
August 28, 1975, 66 SCRA 235). The Information filed herein specifically
alleges that the crime was committed in San Fernando, Pampanga, and,
therefore,
within
the
jurisdiction
of
the
Court
below.
B. The dismissal of the subject criminal cases by Respondent Judge,

predicated on his lack of jurisdiction, is correctible by Certiorari. The error

committed is one of jurisdiction and not an error of judgment on the merits.
Well-settled is the rule that questions covering jurisdictional matters may be
averred in a petition for certiorari, inclusive of matters of grave abuse of
discretion, which are equivalent to lack of jurisdiction (City of Davao v.
Dept. of Labor, No. L-19488, January 30, 1965, 13 SCRA 111, 115). An
error of jurisdiction renders whatever order of the Trial Court null and void.
C. The present petition for Certiorari seeking to set aside the void Decision
of Respondent Judge does not place Respondent-accused in double jeopardy
for the same offense. It will be recalled that the questioned judgment was not
an adjudication on the merits. It was a dismissal upon Respondent Judges
erroneous conclusion that his Court had no "territorial jurisdiction" over the
cases. Where an order dismissing a criminal case is not a decision on the
merits, it cannot bar as res judicata a subsequent case based on the same
offense (People v. Bellosillo, No. L-18512, December 27, 1963, 9 SCRA
835,
837).
The dismissal being null and void the proceedings before the Trial Court
may not be said to have been lawfully terminated. There is therefore, no
second proceeding which would subject the accused to double jeopardy.
"Since the order of dismissal was without authority and, therefore, null and
void, the proceedings before the Municipal Court have not been lawfully
terminated. Accordingly, there is no second proceeding to speak of and no
double jeopardy. A continuation of the proceedings against the accused for
serious physical injuries is in order." (People v. Mogol, 131 SCRA 306, 308).
In sum, Respondent Judge had jurisdiction to try and decide the subject
criminal
case,
venue
having
been
properly
laid.
WHEREFORE, the Decision of Respondent Judge of February 17, 1986 is
hereby set aside and he is hereby ordered to reassume jurisdiction over
Criminal Cases Nos. 2800 and 2813 of his Court and to render judgment of
either conviction or acquittal in accordance with the evidence already
adduced
during
the
joint
trial
of
said
two
cases.
SO

ORDERED.

Yap (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

FIRST DIVISION
G.R. No. L-41054 November 28, 1975
JOSE
L.
GAMBOA
and
UNITS
OPTICAL
SUPPLY
COMPANY, Petitioners, vs. COURT OF APPEALS and BENJAMIN
LU HAYCO, Respondents.
Assistant City Fiscal Leonardo L. Arguelles for petitioner Jose L. Gamboa.
5

Koh Law Offices for petitioner Units Optical Supply Company.

Arturo M. Tolentino and Montesa, Manikan and Associates for private
respondent.
MARTIN, J.:
This is a petition to review on certiorari the judgment of the respondent
Court of Appeals in CA-G.R. No. SP-03877, promulgated on July 17, 1975,
which We treat as special civil action (SC Resolution of September 2, 1975),
involving the proper appreciation of the rule on plurality of crimes,
otherwise known as "concursus delictuorum", and the theory of "continuous
crime".
The private respondent Benjamin Lu Hayco was a former employee of
petitioner company in its optical supply business at Sta. Cruz, Manila. On
January 5, 1973, one hundred twenty-four (124) complaints of estafa under
Article 315, para. 1-b of the Revised Penal Code were filed against him by
the petitioner company with the Office of the City Fiscal of Manila. After the
procedural preliminary investigation, the Office of the City Fiscal filed
seventy-five (75) cases of estafa against private respondent before the City
Court of Manila. Except as to the dates and amounts of conversions, the 75
informations commonly charge that "... the said accused, being then an
employee of the Units Optical Supply Company ..., and having collected and
received from customers of the said company the sum of ... in payment for
goods purchased from it, under the express obligation on the part of the said
accused to immediately account for and deliver the said collection so made
by him to the Units Optical Supply Company or the owners thereof ..., far
from complying with his said aforesaid obligation and despite repeated
demands made upon him ... did then and there ... misappropriate,
misapply and convert the said sum to his own personal use and benefit by
depositing the said amount in his own name and personal account with the
Associated Banking Corporation under Account No. 171 (or with the
Equitable Banking Corporation under Account No. 707), and thereafter
withdrawing the same ... ."
A civil action for accounting (docketed as Civil Case No. 89373 of the Court
of First Instance of Manila) was likewise filed by Lu Chiong Sun, the owner
of the Units Optical Supply Company, complaining that during his hospital
confinement from September 27, 1972 to October 30, 1972, private
respondent initiated discharging the business functions and prerogatives of
the company. And to paint a shade of validity to this exercise of powers,
private respondent, thru fraud, deceit and machinations duped Lu Chiong
Sun into affixing his signature and thumbprint on a general power of
attorney in his (private respondent's) favor. With the use of this deed, private
respondent closed the accounts of Lu Chiong Sun with the Equitable
Banking Corporation and, thereafter, opened accounts in his own name with
the same bank and with the Associated Banking Corporation.
While the criminal suits in particular were pending trial on the merits before
the twelve branches of the City Court of Manila, 1 private respondent
commenced on May 15, 1974 a petition for prohibition with preliminary
injunction before the Court of First Instance of Manila (Branch XV) against
the petitioners herein and the City Court Judges of Manila, claiming that the

filing, prosecution and trial of the seventy-five (75) estafa cases against him
is not only oppressive, whimsical and capricious, but also without or in
excess of jurisdiction of the respondents City Fiscal and the City Court
Judges of Manila. Private respondent asserts that all the indictments narrated
in the seventy-five (75) informations were mere components of only one
crime, since the same were only impelled by a single criminal resolution or
intent. On October 31, 1974, the lower court dismissed the petition on the
ground that the series of deposits and the subsequent withdrawals thereof
involved in the criminal cases were not the result of only one criminal
impulse on the part of private respondent.
As a consequence, private respondent Benjamin Lu Hayco appealed to the
Court of Appeals. On July 17, 1975, the Appellate Court reversed the order
of the lower court and granted the petition for prohibition. It directed the
respondent City Fiscal "to cause the dismissal of the seventy-five (75)
criminal cases filed against petitioner-appellant, to consolidate in one
information all the charges contained in the seventy-five (75) informations
and to file the same with the proper court." The raison d'etre of the ruling of
the Court of Appeals is that:
Where the accused, with intent to defraud his employer, caused the latter to
sign a document by means of deceit and false representation, which
document turned out to be a general power of attorney, and with the use of
said document he closed the accounts of his employer in two banks and at
the same time opened in his name new accounts in the same banks, and then
made collections from the customers of his employer, depositing them in the
bank accounts in his name, the series of deposits made by him which he later
withdrew for his own use and benefit, constitutes but one crime of estafa,
there being only one criminal resolution and the different acts performed
being aimed at accomplishing the purpose of defrauding his employer."
We thus readily recognize that the singular question in this present action is
whether or not the basic accusations contained in the seventy-five (75)
informations against private respondent constitute but a single crime of
estafa.
It is provided in Article 48 of our Revised Penal Code, as amended by Act
No. 4000, that "(w)hen a single act constitutes two or more grave or less
grave felonies or when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period." The intention of the Code in installing this
particular provision is to regulate the two cases of concurrence or plurality of
crimes which in the field of legal doctrine are called "real plurality" and
"ideal plurality". 2 There is plurality of crimes or "concurso de delitos" when
the actor commits various delictual acts of the same or different kind. "Ideal
plurality" or "concurso ideal" occurs when a single act gives rise to various
infractions of law. This is illustrated by the very article under consideration:
(a) when a single act constitutes two or more grave or less grave felonies
(described as "delito compuesto" or compound crime); and (b) when an
offense is a necessary means for committing another offense (described as
"delito complejo" or complex proper). "Real plurality" or "concurso real", on
the other hand, arises when the accused performs an act or different acts with
distinct purposes and resulting in different crimes which are juridically

independent. Unlike "ideal plurality", this "real plurality" is not governed by

Article 48. 3
Apart and isolated from this plurality of crimes (ideal or real) is what is
known as "delito continuado" or "continuous crime". This is a single crime
consisting of a series of acts arising from a single criminal resolution or
intent not susceptible of division. For Cuello Calon, when the actor, there
being unity of purpose and of right violated, commits diverse acts, each of
which, although of a delictual character, merely constitutes a partial
execution of a single particular delict, such concurrence or delictual acts is
called a "delito continuado". In order that it may exist, there should be
"plurality of acts performed separately during a period of time; unity of
penal provision infringed upon or violated and unity of criminal intent and
purpose, which meansthat two or more violations of the same penal
provision are united in one and the same intent leading to the perpetration of
the same criminal purpose or aim." 4
It is not difficult to resolve whether a given set of facts constitutes a single
act which produces two or more grave or less grave offenses or a complex
crime under the definition of Article 48. So long as the act or acts
complained of resulted from a single criminal impulse it is usually held to
constitute a single offense to be punished with the penalty corresponding to
the most serious crime, imposed in its maximum period. 5, The test is not
whether one of the two offenses is an essential element of the
other. 6 In People v. Pineda , 7 the court even expressed that "to apply the
first half of Article 48, ... there must be singularity of criminal act;
singularity of criminal impulse is not written into the law." Prior
jurisprudence holds that where the defendant took the thirteen cows at
the same time and in the same place where he found them grazing, he
performed but one act of theft. 8 Or, the act of taking the two roosters, in
response to the unity of thought in the criminal purpose on one occasion,
constitutes a single crime of theft. There is no series of acts committed for
the accomplishment of different purposes, but only of one which
was consummated, and which determines the existence of only one crime.
The act of taking the roosters in the same place and on the same occasion
cannot give rise to two crimes having an independent existence of their own,
because there are not two distinct appropriations nor two intentions that
characterize two separate crimes. 9
In the case before Us, the daily abstractions from and diversions of private
respondent of the deposits made by the customers of the optical supply
company from October 2, 1972 to December 30, 1972, excluding Saturdays
and Sundays, which We assume ex hypothesi, cannot be considered as
proceeding from a single criminal act within the meaning of Article 48. The
abstractions were not made at the same time and on the same occasion, but
on variable dates. Each day of conversion constitutes a single act with an
independent existence and criminal intent of its own. All the conversions are
not the product of a consolidated or united criminal resolution, because each
conversion is a complete act by itself. Specifically, the abstractions and the
accompanying deposits thereof in the personal accounts of private
respondent cannot be similarly viewed as "continuous crime". In the above
6

formulation of Cuello Calon, We cannotconsider a defalcation on a certain

day as merely constitutive of partial execution of estafa under Article 315,
para. 1-b of the Revised Penal Code. As earlier pointed out, an individual
abstraction
or
misappropriation
results
in
a complete
execution or consummation of the delictual act of defalcation. Private
respondent cannot be held to have entertained continously the same criminal
intent in making the first abstraction on October 2, 1972 for the subsequent
abstractions on the following days and months until December 30, 1972, for
the simple reason that he was not possessed of any fore-knowledge of any
deposit by any customer on any day or occasion and which would pass on to
his possession and control. At most, his intent to misappropriate may arise
only when he comes in possession of the deposits on each business day but
not in futuro, since petitioner company operates only on a day-to-day
transaction. As a result, there could be as many acts of misappropriation as
there are times the private respondent abstracted and/or diverted the deposits
to his own personal use and benefit. Thus, it may be said that the City Fiscal
had acted properly when he filed only one information for every single day
of abstraction and bank deposit made by private respondent. 10 The
similarity of pattern resorted to by private respondent in making the
diversions does not affect the susceptibility of the acts committed to divisible
crimes.
Apropos is the case of People v. Cid, 11 where the Court ruled that the
malversations as well as the falsifications in the months of May, June, July
and August 1936 imputed to the accused "were not the result of only one
resolution to embezzle and falsify, but of four or as many abstractions or
misappropriations had of the funds entrusted to his care, and of as many
falsifications also committed to conceal each of said case. There
is nothing of record to justify the inference that the intention of the appellant
when he committed the malversation in May, 1936 was the same intention
which impelled him to commit the other malversations in June, July, and
August." The ruling holds true when the acts of misappropriation were
committed on two different occasions, the first in January, 1955 to
December, 1955, and the second in January, 1956 to July, 1956. It cannot be
pretended that when the accused disposed of the palay deposit in January,
1955 to December, 1955, he already had the criminal intent of disposing
what was to be deposited in January, 1956 to July, 1956. 12 There is no
synonymy between the present case and that of People, v. Sabbun, 13 where
the Court held that the illegal collections made on different dates, i.e.,
December, 1949; January 1950 to February 1956; March 1956 to September
1957 constitutes a "continuing offense", because the said collections were
"all part of the fees agreed upon in compensation for the service" to be
rendered by the accused Sabbun in filing the claim of the spouses Dacquioag
for U.S. Veterans benefit and collecting the pensions received by the widow
from time to time. "The periodical collections form part of a single criminal
offense of collecting a fee which is more than the prescribed amount fixed
by the law" and "were impelled by the same motive, that of collecting fees
for services rendered." As We have said, the various acts of defalcation
perpetrated by private respondent in the present case from October 2, 1972
to December 30, 1972 are susceptible of division with separate criminal
intents.

The respondent Court of Appeals harps upon the act of private respondent in
allegedly inducing, with intent to defraud, Lu Chiong Sun "to sign a
document by means of deceit and false representation, which document
turned out to be a general power of attorney" and with the use of which, he
closed the accounts of the latter in two banks, at the same time opening in his
name new accounts in the same banks, for its conclusion that the acts
complained of against private respondent constitute one continuous crime of
estafa. It is striking to note, however, that the accusatory pleadings against
private respondent are founded on Article 315, para. 1-b of the Revised Penal
Code, which defines and penalizes estafa by conversion or misappropriation.
In this form of estafa, fraud is not an essential element. 14 According to

try the case, it being understood that the first court taking cognizance of the
case will exclude the other." 19
ACCORDINGLY, the judgment of the Court of Appeals, subject matter of
this proceeding, is hereby reversed and set aside. The temporary restraining
order issued by this Court on August 7, 1975, enjoining the enforcement or
implementation of the said judgment is hereby made permanent. No costs.
SO ORDERED.
Castro (Chairman), Teehankee, Makasiar, Esguerra and Muoz Palma, JJ.,
concur.

Groizard "impudence, barefacedness covetousness, and disloyalty employed

in taking advantage of an opportunity take here the place formerly occupied
by deceit." 15 "Fraudulent intent" in committing the conversion or diversion
is "very evidently not a necessary element of the form of estafa here
discussed; the breach of confidence involved in the conversion or diversion
of trust funds takes the place of fraudulent intent and is in itself sufficient.
The reason for this is obvious: Grave as the offense is, comparatively few
men misappropriate trust funds with the intention of defrauding the owner;
in most cases the offender hopes to be able to restore the funds before the
defalcation is discovered. We may say in passing that the view here
expressed is further strengthened by the fact that of the nine paragraphs of
Article 535, the paragraph here under discussion is the only one in which the
words "fraud", or "defraud" do not occur." 16In other words, the alleged act
of private respondent in causing, with intent to defraud, Lu Chiong Sun to
affix his signature and thumbprint on the general power of attorney is
immaterial and ineffective insofar as the charges of conversions are
concerned. If at all, the said document may serve only the purpose of closing
the accounts of Lu Chiong Sun with the banks and nothing more. Definitely,
there is no necessity for it before private respondent could commit the acts of
defalcation. As a matter of fact, private respondent resorted to this document
only on October 17, 1972, or 15 days after he had already commenced the
abstraction on October 2, 1972. 17
The characterization or description of estafa as a continuing offense cannot
be validly seized upon by private respondent as basis for its inference that
the acts of abstraction in question constitute but a single continuing crime of
estafa. The sole import of this characterization is that the necessary elements
of estafa may separately take place in different territorial jurisdictions
until the crime itself is consummated. The moment, however, that the
elements of the crime have completely concurred or transpired, then
an individual crime of estafa has occurred or has been consummated. The
term "continuing" here must be understood in the sense similar to that of
"transitory" and is only intended as a factor in determining the proper venue
or jurisdiction for that matter of the criminal action pursuant to Section 14,
Rule 110 of the Rules of Court. 18This is so, because "a person charged with
a transitory offense may be tried in any jurisdiction where the offense is part
committed. In transitory or continuing offense in which some acts material
and essential to the crime and requisite to its consummation occur in one
province and some in another, the court of either province has jurisdiction to
7

THIRD
[G.R.

DIVISION
No.

117488.

September

5,

1996.]

SANTIAGO IBASCO, Petitioner, v. COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES, Respondents.

SYLLABUS

1. CRIMINAL LAW, B.P. BLG. 22; MINISTRY CIRCULAR NO. 4 DATED

DECEMBER 15, 1981 THAT ACCOMMODATION OR GUARANTEE IS
A DEFENSE REVERSED BY MINISTRY CIRCULAR NO. 12 DATED
AUGUST 8, 1984. The petitioner admits that the checks he issued were
dishonored. His main defense as to the dishonored checks is that they were
issued not for value but for accommodation or guarantee and invokes our
ruling in Magno v. Court of Appeals, where we held that there was no
violation of B.P. Blg. 22 where the bounced check was issued to cover a
required warranty deposit. He also cites Ministry Circular No. 4 issued by
the Department of Justice (DOJ) on 15 December 1981, the pertinent portion
of which reads: 2.3.4. Where issuance of bouncing check is neither estafa
nor violation of B.P. Blg. 22. Where the check is issued as part of an
arrangement to guarantee or secure the payment of the obligation, whether
pre-existing or not, the drawer is not criminally liable for either estafa or
violation of B.P. Blg. 22 It was subsequently reversed by Ministry Circular
No. 12 issued on 8 August 1984, which admitted its misinterpretation of B.P.
Blg. 22. The pertinent portion of the latter reads: Henceforth, conforming
with the rule that an administrative agency having interpreting authority may
reverse its administrative interpretation of a statute, but that its new
interpretation applies only prospectively (Waterbury Savings Bank v.
Danaher, 128 Conn. 476; 20 a2d 455 [1941]), in all cases involving violation
of Batas Pambansa Blg. 22 where the check in question is issued after this
date, the claim that the check is issued as a guarantee or part of an
arrangement to secure an obligation or to facilitate collection will no longer
be
considered
as
a
valid
defense.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; VENUE OF
TRANSITORY OFFENSES, HOW DETERMIEND. Violation of B.P. Blg.
22 is in the nature of a continuing crime. Venue is determined by the palce
where the elements of making, issuing, or drawing of the check and delivery
thereof are committed. Thus, as explained in People v. Yabut" [t]he theory is
that a person indicted with a transitory offense may be validly tried in any
jurisdiction where the offense was in part committed. The palce where the
bills were written, signed, or dated does not necessarily fix or determine the
place where they are executed. What is of decisive importance is the delivery
thereof. The delivery of the instrument is the final act essential to its
consumation
as
an
obligation."
3. ID.; EVIDENCE; CREDIBILITY; FINDlNGS OF THE TRIAL COURT,

GENERALLY NOT DISTURBED ON APPEAL. It is well-settled in

criminal jurisprudence that where the issue is one of credibility of witnesses,
the appellate court will generally not disturb the findings or the trial court,
considering it was in a better position to settle such issue. Indeed, the trial
court has the advantage of hearing the witness and observing his conduct
during trial, circumstances which carry a great weight in appreciating his
credibility. We see no oversight on the part of the trial court in giving
credence to the testimony of Maria Negro. Besides, we have repeatedly ruled
that the testimony of a lone witness, when credible and trustworthy, is
sufficient
to
convict.
4. CRIMINAL LAW; B.P. 22; RULING IN MAGNO CASE (210 SCRA 471
[1992]) THAT ACCOMMODATION IS A VALID DEFENSE, NOT
APPLICABLE TO CASE AT BAR. The petitioners defense of
accommodation cannot exculpate him from his wrongdoing. The case of
Magno (210 SCRA 471 [1992]) is inapplicable to him. The material
operative facts therein obtaining are different from those established in the
instant petition. In Magno, the bounced checks were issued to cover a
"warranty deposit" in a lease contract, where the lessor-supplier was also the
financier of the deposit. It was a modus operandi whereby the supplier of the
goods is also able to sell or lease the same goods at the same time privately
financing those in desperate need so they may be accommodated. The maker
of the check thus becomes an unwilling victin of a lease agreement under the
guise of lease-purchase agreement. The maker did not benefit at all from the
deposit, since the checks were used as collateral for an accommodation and
not to cover the receipt of an actual account or credit for value. Also, in
Magno, the payee in .the former was made aware of the insufficiency of the
funds
prior
to
the
issuance
of
the
checks.
5. ID.; ID.; RULING IN CO CASE (227 SCRA 444 [1993]) THAT
CHECKS ISSUED BEFORE CIRCULAR NO. 12 TO GUARANTEE OR
SECURE PAYMENT OF An OBLIGATION NOT APPLICABLE TO CASE
AT BAR. Equally untenable is the petitioners argument that since he
issued the checks prior to 8 August 1984 as accommodation or security, he is
similarly situated with Co in the Co case. In Co, we held that the rubber
checks issued prior to 8 August 1984 as a guarantee or as part of an
arrangement to secure an obligation or to facilitate collection was a valid
defense in view of Ministry Circular No. 4 of the Ministry of Justice In the
case of the petitioner, although he issued the checks prior to such date, they
were issued in payment of his indebtedness, and not for the accommodation
of the Trivinios nor security of their indebtedness. Accommodation pertains
to an arrangement made as a favor to another, not upon a consideration
received. On the other hand, guarantee refers to a promise to answer the debt
of another, in case the latter should fail to do so. Neither occurred in this
case.
6. ID.; ID.; FACT THAT OBJECT OF CONTRACT WAS NOT OF GOOD
QUALITY, IRRELEVANT. The fact that the object of the contract, the
animal feeds, was not of good quality is irrelevant in the prosecution of a
case involving B.P. Blg. 22, for the said law was enacted to prohibit, under
pain of penal sanctions, the making of worthless checks and putting them in

circulation. It is not the non-payment of an obligation which the law

punishes, but the act of making and issuing a check that is dishonored upon
presentment for payment.

DECISION
DAVIDE, JR., J.:

His motion to reconsider the decision 1 of the Court of Appeals of 11 August

1994 in CA-G.R. CR No. 13300 affirming in toto the decision 2 of 20
November 1991 of the Regional Trial Court (RTC) of Gumaca, Quezon,
Branch 62, in Criminal Cases Nos. 2755-G, and 2757-G having been denied,
3 the petitioner filed petition for review. The trial court found him guilty of
the offense punished in B.P. Blg. 22 (Bouncing Checks Law).
The accusatory portion of the information in Criminal Case No. 2755-G
dated
31
March
1987
reads
as
follows:
That on or about the 18th day of April 1984, at Barangay Camohaguin,
Municipality of Gumaca, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, did then and there
willfully, unlawfully and feloniously issue and make out Check No. DAT
41911, in the amount of EIGHTEEN THOUSAND NINETY PESOS and
TEN CENTAVOS (P18,090.10), Philippine currency, drawn against the
United Coconut Planters Bank, Daet Branch, and payable to Manuel Trivinio
in payment for feeds purchased from the latter; that the accused knew fully
well at the time of the issuance of said check that he did not have sufficient
funds in or credit with the drawee bank for the payment of said check in full
upon presentment; that upon presentation of said check to the bank for
payment, the same was dishonored and refused payment for the reason that
there was no sufficient funds to cover said check; and that despite notice to
the accused by said Manuel Trivinio that said check was dishonored for lack
of funds, said accused failed to deposit the necessary amount to cover said
check, to the damage and prejudice of Manuel Trivinio, now represented by
his
heirs,
in
the
aforesaid
sum.
Contrary

to

law.

The informations in Criminal Case No. 2756-G and Criminal Case No.
2757-G are similarly worded as in Criminal Case No. 2755-G except as to
the date of the violation of B.P. Blg. 22, the number of the checks, and the
amounts thereof. In Criminal Case No. 2756-G, the violation was committed
on 23 March 1984 and involved Check No. DAT 41910 in the amount of
P17,900.00. 5 In Criminal Case No. 2757-G, the violation was committed on
24 February 1984 and involved Check No. 41909 in the amount of
P15,576.30.
6
The cases were consolidated and jointly tried. Upon arraignment, the
petitioner
pleaded
not
guilty
to
the
charges.
8

The evidence for the prosecution is summarized in the challenged decision

of
the
Court
of
Appeals
as
follows:
The facts are as follow [sic]: The complaining witness Maria Negro Trivinio
and her late husband Manuel Trivinio operate an animal feed mill in
Gumaca, Quezon while accused-appellant Santiago Ibasco and his wife
operate a piggery in Daet, Camarines Norte. On or about October 26,
1983, Accused-appellant Santiago Ibasco and his wife, came to the residence
of the Trivinios at Sitio Seawall, Bgy. Camohaguin, Gumaca, Quezon and
requested credit accommodation for the supply of ingredients in the
manufacture of animal feeds (TSN, March 15, 1988, p. 7). In accordance
with the agreed credit arrangement, the Trivinios made three deliveries of
darak with a total value of P51,566.49 (Id., p. 9) and in payment, Accusedappellant issued three (3) postdated checks, to wit: (1) Check No. 41909,
postdated February 24, 1984, for P15,576.30 (Exh. A Criminal Case No.
2757-G; Id., p. 9); (2) Check No. 41910, postdated March 23, 1984 for
P17,900.00 (Exh. A-2756-G; Id., p. 5) and (3) Check No. 41911, postdated
April 18, 1984 for P18,090.10 (Exh. A Criminal Case No. 2755-G; Id., p.
10). All checks were drawn against United Coconut Planters Bank, Daet
Branch. Upon presentment to the Bank for payment of their due dates, the
checks bounced for being drawn against insufficient funds (Exhs. B-2755-G,
B-2756-G and B-2757-G). The Trivinio spouses notified accused-appellant
of the dishonor (TSN, March 13, 1988, p. 11). Accused-appellant replied by
telegram offering his real property in Daet as security. Accused-appellant
invited the Trivinios to come to Daet and inspect the property (Exh. C;
Folder of Minutes and Exhibits, p. 13). When the Trivinios arrived in Daet
the accused told them that the property is across the sea, and, not wanting to
cross the sea, the couple did not anymore inspect the property (TSN, March
15, 1988, p. 14). For failure of the accused to settle his account with the
Trivinios,
the
instant
case
was
filed.
7
The original records of the aforementioned criminal cases show that after the
presentation of the evidence for both parties had been concluded, the trial
court required the parties to submit their respective memoranda. However,
before submitting his memorandum, the petitioners new counsel filed a
motion to dismiss on the ground of lack of jurisdiction since, it is claimed,
the checks were "prepared, issued and delivered to the payee . . . at the office
of
the
accused
in
Daet,
Camarines
Norte."
8
In its order 9 of 14 November 1991, the trial court denied the motion to
dismiss considering that the informations alleged that the violations were
committed in Barangay Camohaguin, Gumaca, Quezon, and that pieces of
evidence, viz., the affidavits 10 of Maria Negro, the surviving spouse of
Manuel Trivinio who was presented by the defense as a hostile witness,
established that the checks were issued in the said place.
On 17 December 1991, the trial court promulgated its decision 11 dated 20
November 1991 convicting the petitioner. The dispositive portion of the
decision
reads:
WHEREFORE, this Court firmly believes and so holds that the prosecution

had equitably proved its case by the evidences [sic] presented, finds the
accused guilty beyond reasonable doubt in Criminal Cases Nos. 2755-G,
2756-G and 2757-G, and imposes the penalty in each criminal cases [sic]:
In Criminal Case No. 2755-G, One (1) Year imprisonment and a fine of
P36,180.20.

allegation of the accused in questioning the jurisdiction of this Court;

between the protestation of the accused that the place of issuance to be [sic]
Daet, Camarines Norte and the positive allegation of witness Maria Negro
Trivinio that the checks were delivered at their residence in Gumaca, Quezon
by the accused, this Court gives weight and credence to the testimony of said
witness and accused is bound by his own evidence. 14

In Criminal Case No 2756-G, One (1) Year imprisonment and a fine of

P35,800.00.

The petitioner seasonably appealed 15 the decision to the Court of Appeals

which docketed the case as CA-G.R. CR No. 13300.

In Criminal Case No. 2757-G, One (1) Year imprisonment and a fine of
P31,152.60.
12

In his Brief in CA-G.R. CR No. 13300, the petitioner contended that the trial
court erred: (a) in not dismissing the cases for lack of jurisdiction; (b) in not
dismissing the cases for failure of the prosecution to prove the guilt of the
accused beyond reasonable doubt; (c) in not taking into consideration that
the liability of the accused should have been civil in nature and not criminal;
and (d) in not disregarding the testimony of Maria Negro vda. de Trivinio
since it is not clear and convincing and is incredible. 16

The trial court gave full faith and credit to the evidence offered by the
prosecution and, disregarding the theory of the defense, it opined and ruled
as
follows:
Batas Pambansa Blg. 22 was purposely enacted to prevent the proliferation
of worthless checks in the mainstream of daily business and to avert not only
the undermining the Banking System of the country, but also the infliction of
damage and injury upon trade and commerce occasioned by the
indiscriminate issuance of such checks. By its very nature, the offenses
defined BP 22 are against public interest while the crime of Estafa is against
property.
Since the act and commission specified in BP Blg. 22 are not necessarily evil
or wrongful from their nature and neither are they inherently illicit and
immoral and considering that the law which penalize [sic] such act or
commission is a special statutory law, the offenses are considered mala
prohibita and considering the rule in cases of mala prohibita, the only inquiry
is whether or not the law has been violated (People v. KIBLER, 106, NY,
321, cited in U.S. v. Go Chico, 14 Phil. 132) criminal intent is not
necessary where the acts are prohibited for reasons of public policy (People
v. Conosa, C.A. 45, O.G. 3953). The defense of good faith and absence of
criminal intent would not prosper in prosecution for violation (Res. No. 447,
S. 1980, Tomayo v. Desederio, Dec. 8, 1980 & Res. No. 624, S. 1981.
ESCOBAR v. SY, Sept. 1, 1981).
x

If is of no moment that by the evidence presented by the accused that a preexisting obligation took place and that the products delivered by the
deceased husband of complaining witness was [sic] below par; and that his
piggery suffered losses. This situation can be a basis for a civil action which
accused actually filed against complaining witness, but it cannot divest of the
glaring fact that the checks he issued bounced and was [sic] dishonored. 13
As

to

the

issue

of

jurisdiction,

the

trial

court

held:

. . . The sworn statement of Maria Negro Trivinio which repudiated the

In its challenged decision 17 of 11 August 1994, the Court of Appeals

rejected these claims of the petitioner and affirmed in toto the trial courts
decision. As to the issue of lack of jurisdiction, the Court of Appeals ruled:
We agree with the lower court. The sworn statement, Exhibit 10, of Maria
Trivinio who was presented by accused-appellant as his last witness, in the
words of the lower court, "repudiated the allegation of the accused in
questioning the jurisdiction of this Court; between the protestation of the
accused that the place of issuance to be at [sic] Daet, Camarines Norte and
the positive allegation of witness Maria Negro Trivinio that the checks were
delivered at their residence in Gumaca, Quezon by the accused, this Court
gives weight and credence to the testimony of said witness and accused is
bound by his own evidence" (Decision, pp. 16-17; Rollo, pp. 96-98).
At any rate, as held in the case of People v. Grospe, 157 SCRA 154, a
violation of BP 22 is an offense that appears to be continuing in nature. The
knowledge on the part of maker or drawer of the check of the insufficiency
of his funds, which is an essential ingredient of the offense is by itself a
continuing eventuality, whether the accused be within one territory or
another.
Said
the
Supreme
Court:
In respect of the Bouncing checks case, the offense also appears to be
continuing in nature. It is true that the offense is committed by the very fact
of its performance (Colmenares v. Villar, No. L-27126, May 29, 1970, 33
SCRA 186); and that the Bouncing Checks Law penalizes not only the fact
of dishonor of a check but also the act of making or drawing and issuance of
a bouncing check (People v. Hon. Veridiano, II, No. L-62243, 132 SCRA
523). The case, therefore, could have been filed also in Bulacan. As held in
Que v. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987
"the determinative factor (in determining venue) is the place of the issuance
of the check." However, it is likewise true that knowledge on the part of the
maker or drawer of the check of the insufficiency of his funds, which is an
essential ingredient of the offense is by itself a continuing eventuality,
9

whether the accused be within one territory or another (People v. Hon.

Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial
Court
of
Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is
determined by the allegation in the Information, which are controlling
(Arches v. Bellosillo, 81 Phil. 190, cited in Tuzon v. Cruz, No. L-27410,
August 28, 1975, 66 SCRA 235). The Information filed herein specifically
alleges that the crime was committed in San Fernando Pampanga and
therefore within the jurisdiction of the Court below. (at page 164)
This ruling was reiterated in the case of Lim v. Rodrigo, 167 SCRA 487,
where
it
was
held:
Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of
the bad checks act is committed when one makes or draws and issues any
check [sic] to apply on account or for value, knowing at the time issue that
he does not have sufficient funds or having sufficient funds in or credit with
the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit
to cover the full amount of the check if presented within a period of ninety
(90) days from the date appearing thereon, for which reason it is dishonored
by the drawee bank," "knowledge" is an essential ingredient of the offense
charge. As defined by the statute, knowledge, is, by itself, a continuing
eventuality, whether the accused be within one territory or another. This
being the case, the Regional Trial Court of Baguio City has jurisdiction to try
Criminal
Case
No.
2089-R
(688).
Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated
in People v. Grospe, supra, that jurisdiction or venue is determined by the
allegations in the information. The allegation in the information under
consideration that the offense was committed in Baguio City is therefore
controlling and sufficient to vest jurisdiction upon the Regional Trial Court
of
Baguio
City.
(at
pages
492-493)
In the case at bench it appears that the three (3) checks were deposited in
Lucena
City.
18
As to the second error wherein the petitioner asserted that the checks were
issued "as a guarantee only for the feeds delivered to him" and that there is
no estafa if a check is issued in payment of a pre-existing obligation, the
Court of Appeals pointed out that the petitioner obviously failed to
distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d]
of the Revised Penal Code. 19 It further stressed that B.P. Blg. 22 applies
even in cases where dishonored checks were issued as a guarantee or for
deposit only, for it makes no distinction as to whether the checks within its
contemplation are issued in payment of an obligation or merely to guarantee
the said obligation and the history of its enactment evinces the definite
legislative intent to make the prohibition all-embracing. 20
As to the contention that the prosecution failed to prove that the time of the

drawing and issuance of the checks the petitioner had insufficient funds at
the drawee bank to cover the face value of the checks, the Court of Appeals
held that the mere issuance of a dishonored check gives rise to the
presumption of knowledge on the part of the drawer that he issued the check
without
sufficient
funds.
21
The Court of Appeals also saw no reason to disregard the testimony of Maria
Negro.
Still unsatisfied with the decision, the petitioner filed this petition for review.
In addition to reiterating the arguments he raised before the Court of
Appeals, the petitioner asserts that the Court of Appeals erred in applying the
doctrine that the mere issuance of a bad check is a crime in itself.
The petitioner admits that the checks he issued were dishonored. His main
defense as to the dishonored checks is that they were issued not for value but
for accommodation or guarantee and invokes our ruling in Magno v. Court
of Appeals, 22 where we held that there was no violation of B.P. Blg. 22
where the bounced check was issued to cover a required warranty deposit.
He also cites Ministry Circular No. 4 issued by the Department of Justice
(DOJ) on 15 December 1981, the pertinent portion of which reads:
2.3.4. Where issuance of bouncing check is neither estafa nor violation of
B.P.
Blg.
22.
Where the check is issued as part of an arrangement to guarantee or secure
the payment of the obligation, whether pre-existing or not, the drawer is not
criminally liable for either estafa or violation of B.P. Blg. 22.
It was subsequently reversed by Ministry Circular No. 12 issued on 8 August
1984, which admitted its misinterpretation of B.P. Blg. 22. The pertinent
portion
of
the
latter
reads:
Henceforth, conforming with the rule that an administrative agency having
interpreting authority may reverse its administrative interpretation of a
statute, but that its new interpretation applies only prospectively (Waterbury
Savings Bank v. Danaher, 128 Conn. 476; 20 a2d 455 (1941), in all cases
involving violation of Batas Pambansa Blg. 22 where the check in question
is issued after this date, the claim that the check is issued as a guarantee or
part of an arrangement to secure an obligation or to facilitate collection will
no
longer
be
considered
as
a
valid
defense.
The petitioner also urges us to apply our ruling in Co v. Court of Appeals, 23
where we held that dishonored checks issued prior to 8 August 1984 to
guarantee or secure payment of an obligation, whether pre-existing or not,
are governed by Circular No. 4 of 15 December 1981 of the DOJ and the
drawer thereof cannot be liable for the violation of B.P. Blg. 22.
In the resolution of 31 May 1995, 24 we denied the petition for failure of the
petitioner to show any reversible error committed by the Court of Appeals.
The petitioner sought a reconsideration primarily on the basis of Co v. Court

of Appeals. 25 In our resolution of 7 August 1995, 26 we granted the motion

for reconsideration, reinstated the petition and required the respondent to
comment
on
the
petition.
In its comment, the Office of the Solicitor General countered that the trial
court had jurisdiction over the cases inasmuch as the questioned checks were
delivered to Manuel Trivinio in Gumaca, Quezon, and cited in support
thereof People v. Yabut. 27 It further argued that all the elements of B.P. Blg.
22 are present in these cases. The petitioners knowledge of insufficient
funds is legally presumed from the fact of dishonor; and the defense that the
dishonored checks were issued as guarantee to secure a pre-existing
obligation is without merit pursuant to the rule laid down in Que v. People.
28
We

sustain

the

petitioners

conviction.

Violation of B.P. Blg. 22 is in the nature of a continuing crime. Venue is

determined by the place where the elements of making, issuing, or drawing
of the check and delivery thereof are committed. Thus, as explained in
People v. Yabut, 29" [t]he theory is that a person indicted with a transitory
offense may be validly tried in any jurisdiction where the offense was in part
committed. . . . The place where the bills were written, signed, or dated does
not necessarily fix or determine the place where they were executed. What is
of decisive importance is the delivery thereof. The delivery of the instrument
is the final act essential to its consummation as an obligation."
In her testimony, Maria Negro categorically stated that the three checks were
delivered by the petitioner to their residence in Gumaca, Quezon.
It is well-settled in criminal jurisprudence that where the issue is one of
credibility of witnesses, the appellate court will generally not disturb the
findings of the trial court, considering it was in a better position to settle
such issue. Indeed, the trial court has the advantage of hearing the witness
and observing his conduct during trial, circumstances which carry a great
weight in appreciating his credibility. 30 We see no oversight on the part of
the trial court in giving credence to the testimony of Maria Negro. Besides,
we have repeatedly ruled that the testimony of a lone witness, when credible
and
trustworthy,
is
sufficient
to
convict.
31
Besides, it is not without convincing reason to believe that delivery of the
checks was in fact made at Gumaca, Quezon, it being the place of business
of the late Manuel Trivinio and from where the animal feeds were delivered.
Consequently, payment should be considered effected at Gumaca, Quezon.
32
The petitioners defense of accommodation cannot exculpate him from his
wrongdoing. The case of Magno is inapplicable to him. The material
operative facts therein obtaining are different from those established in the
instant petition. In Magno, the bounced checks were issued to cover a
"warranty deposit" in a lease contract, where the lessor-supplier was also the
financier of the deposit. It was a modus operandi whereby the supplier of the
10

goods is also able to sell or lease the same goods at the same time privately
financing those in desperate need so they may be accommodated. The maker
of the check thus becomes an unwilling victim of a lease agreement under
the guise of a lease-purchase agreement. The maker did not benefit at all
from the deposit, since the checks were used as collateral for an
accommodation and not to cover the receipt of an actual account or credit for
value. Also, in Magno, the payee in the former was made aware of the
insufficiency of the funds prior to the issuance of the checks.

SO

ORDERED.

Narvasa C.J., Melo, Francisco and Panganiban, JJ., concur.

Equally untenable is the petitioners argument that since he issued the checks
prior to 8 August 1984 as accommodation or security, he is similarly situated
with Co in the Co case. In Co, we held that the rubber checks issued prior 8
August 1984 as a guarantee or as part of an arrangement to secure an
obligation or to facilitate collection was a valid defense in view of Ministry
Circular No. 4 of the Ministry of Justice. In the case of the petitioner,
although he issued the checks prior to such date, they were issued in
payment of his indebtedness, and not for the accommodation of the Trivinios
nor
security
of
their
indebtedness.
Accommodation pertains to an arrangement made a favor to another, not
upon a consideration received. On the other hand, guarantee refers to a
promise to answer the debt of another, in case the latter should fail to do so.
33
Neither
occurred
in
this
case.
The petitioners theory of accommodation is debunked by the following
circumstances: (1) The checks were issued after all deliveries were made at
such time when the petitioners obligation was already in existence; (2) The
sum of the checks equalled the petitioners total obligation in the amount of
P51,566.40; (3) The petitioner prepared a statement of account, 34 where the
checks issued were applied to his accounts due to Manuel Trivinio; (4) The
act of the petitioner in issuing three checks of different dates is inconsistent
to his claim 35 that Manuel Trivinio requested a post-dated check to show to
his creditors; and (5) After the checks bounced, the petitioner offered a
property for its replacement. 36 All these incidents verily indicate that the
checks were issued as payment and for value and not for accommodation.
Needless to state, the checks failed to bear any statement "for
accommodation" or "for guarantee" to show the petitioners intent.
The fact that the object of the contract, the animal feeds, was not of good
quality is irrelevant in the prosecution of a case involving B.P. Blg. 22, for
the said law was enacted to prohibit, under pain of penal sanctions, the
making of worthless checks and putting them in circulation. It is not the nonpayment of an obligation which the law punishes, but the act of making and
issuing a check that is dishonored upon presentment for payment. 37
WHEREFORE, the instant petition is DENIED, and the challenged decision
of the Regional Trial Court, Branch 62, Gumaca, Quezon, in Criminal Cases
Nos. 2755-G, 2756-G, and 2757-G is hereby AFFIRMED.
Costs

against

the

petitioner.
11

FIRST DIVISION
[G.R. NO. 170298 : June 26, 2007]
MANUEL
S.
ISIP, Petitioner, v. PEOPLE
PHILIPPINES, Respondent.

OF

THE

DECISION
CHICO-NAZARIO, J.:
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, which seeks to set aside the Decision 1 of the Court of Appeals

for payment was dishonored for insufficiency of funds and notwithstanding

repeated demands made by Leonardo A. Jose for the redemption of the said
check, accused refused and still refuses to do so, to the damage and prejudice
of the aforesaid Leonardo A. Jose in the above-stated amount
of P562,000.00, Philippine Currency.4
The six other Informations are similarly worded except for the date when the
offense was committed, the number and amount of the check. The pertinent
data in the other informations are as follows:

Crim. Case No.

Date of Commission No. of Check

Amount of Check

147-84

17 March 1984

518644

P50,000.00

148-84

30 March 1984

518645

P50,000.00

149-84

12 March 1984

0300865

P150,000.00

denying his Partial Motion for Reconsideration.

155-84

25 March 1984

518674

P95,000.00

The antecedents are the following:

156-84

29 March 1984

518646

P90,000.00

Petitioner was charged with Estafa in Criminal Case No. 136-84 before
Branch XVII of the RTC of Cavite City, under the following information:

157-84

1 April 1984

518669

P25,000.00

dated 26 October 2004 in CA-G.R. CR No. 21275 entitled, "People of the

Philippines v. Manuel S. Isip and Marietta M. Isip" to the extent that it
affirmed with modifications petitioner Manuel S. Isip's conviction for Estafa
in Criminal Case No. 136-84 of the Regional Trial Court (RTC), Branch
XVII, Cavite City, and its Amended Decision2 dated 26 October 2005

That on or about March 7, 1984, in the City of Cavite, Republic of the

Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, received from Leonardo A. Jose one (1) seven carat
diamond (men's ring), valued at P200,000.00, for the purpose of selling the
same on commission basis and to deliver the proceeds of the sale thereof or
return the jewelry if not sold, on or before March 15, 1984, but the herein
accused once in possession of the above-described articles, with intent to
defraud and with grave abuse of confidence, did, then and there, willfully,
unlawfully and feloniously misappropriate, misapply and convert the same
to his own personal use and benefit and notwithstanding repeated demands
made by Leonardo A. Jose for the return of the jewelry or the delivery of the
proceeds of the sale thereof, failed to do so, to the damage and prejudice of
the aforesaid Leonardo A. Jose in the abovestated amount of P200,000.00,
Philippine Currency.3
Petitioner's wife, Marietta M. Isip, was indicted before the same court for
seven counts of Violation of Batas Pambansa Blg. 22, otherwise known as
the Bouncing Checks Law. The cases were docketed as Criminal Cases No.
146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and 157-84. The accusatory
portion of the information in Criminal Case No. 146-84 reads:
That on or about March 27, 1984, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, knowing fully well that her account with the bank is
insufficient, did, then and there, willfully, unlawfully, feloniously and
knowingly issue Pacific Banking Corporation Check No. 518672 in the
amount of P562,000.00, in payment for assorted pieces of jewelry, received
from Leonardo A. Jose, which check upon presentation with the drawee bank

Crim.
Case No.

Value
of Date of Agreed Date Check No./Date
Jewelry
Receipt of Return

257-84

P150,000

03-07-84 03-30-84

260-84

P95,000

03-20-84 03-27-84

261-84

P562,000

03-20-84 03-27-84

378-84

P200,000

02-03-84 -

Amount

030086/03-12-84 P150,000

518647/03-25-84 P95,000

518672/03-27-84 P562,000

518644/03-17-84 P50,000

518645/03-30-84 P50,000

When arraigned on the charges, petitioner and Marietta Isip pleaded not
guilty. There being only one complainant in all the cases, joint trial of the
cases followed.

The spouses Isip were likewise charged before the same court with five (5)
counts of Estafa. The cases were docketed as Criminal Cases No. 256-84,
257-84, 260-84, 261-84 and 378-84. The Estafa charged in Crim. Case No.
256-84 was allegedly committed as follows:

The versions of the prosecution and the defense, as taken by the Court of
Appeals in the parties' respective briefs, are the following:

That on or about March 20, 1984, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating together and mutually helping one
another, received from one Leonardo A. Jose the following pieces of jewelry,
to wit: one (1) set dome shape ring and earrings valued at P120,000.00, with
the obligation of selling the same on commission basis and deliver the
proceeds of the sale thereof or return them if not sold, on or before March
21, 1984, but the herein accused, once in possession of the said jewelry by
means of false pretenses, with intent to defraud and with grave abuse of
confidence, did, then and there, willfully, unlawfully and feloniously
misappropriate, misapply and convert them to their own personal use and
benefit and paid the same with Check Nos. 518646 and 518669, dated March
29, 1984 and April 1, 1984, respectively, in the amount of P90,000
and P25,000, respectively, which upon presentation with the bank was
dishonored for insufficiency of funds and notwithstanding repeated demands
made by Leonardo A. Jose for the redemption of the said check, failed to do
so, to his damage and prejudice in the abovestated amount of P120,000.00,
Philippine Currency.6

Sometime in 1982, appellant spouses Manuel and Marietta Isip were

introduced to complainant Atty. Leonardo Jose. The introduction was made
by complainant's father, Nemesio, business associate of the Isips. Nemesio
and the Isips were then engaged in the buy and sell of pledged and
unredeemed jewelry pawned by gambling habitus (pp. 8-16, tsn, June 8,
1993).

Except for the description and value of the pieces of jewelry involved, date
of receipt and agreed date of return, and the number, date and amount of the
checks issued in payment thereof, the four other informations are similarly
worded. The specifics thereof are as follows:

On March 3, 1984, the Isips did not return the ring or the proceeds thereof.
Instead, Marietta Isip issued two (2) personal checks dated March 17 and 30,
1984, respectively, for P50,000.00 each as partial payment for the jewelry.

i) Prosecution Version.'

Needing a bigger capital to finance the growing operation, the Isips

convinced complainant to be their capitalist, a proposition to which
complainant acceded to (p. 14, ibid).
Thus, the operation went smoothly - that was before February, 1984 (pp. 1418, tsn, ibid).
On February 3, 1984, at complainant's residence in Caridad, Cavite City,
appellant spouses received from complainant a 6 carat men's ring valued
at P200,000.00 with the condition that they are going to sell said jewelry x x
x on commission basis for P200,000.00 and if they are not able to sell the
same, they have to return the ring if sold on or before March 3, 1984 (p. 8,
tsn, October 15, 1993).

12

The receipt of the jewelry was acknowledged by Marietta Isip with Manuel
acting as a witness (pp. 9-11, tsn, ibid).
This particular men's ring is the subject of Criminal Case No. 378-84 for
Estafa while Check Nos. 518644 and 518645 (Pacific Banking Corp.) dated
March 17 and 30, respectively, are the subject of Criminal Case Nos. 147-84
and 148-84.
In the morning of March 7, 1984, the Isip couple went again to complainant's
residence in Caridad, Cavite City where complainant delivered one (1)
Choker Pearl with 35 pieces of south sea pearls with diamond
worth P150,000.00. The condition was that the proceeds be turned over to
complainant on or before March 30, 1984 (pp. 27-29, tsn, ibid). March 30,
1984 came, but instead of turning over the proceeds or return the Choker
Pearl, Mrs. Isip issued a check dated March 12, 1984 for P150,000.00
(RCBC check No. 030086) as payment (p. 34, ibid).
This is the subject of Criminal Case No. 254-84 for Estafa against the
spouses and Criminal Case No. 149-84 for violation of BP 22 against
Marietta Isip.
In the afternoon of the same day, Mr. Manuel Isip went to complainant's
residence in Cavite City and got from the latter a men's ring (7 carats)
worth P200,000.00. Mr. Isip signed a receipt with the condition that he
return the ring or deliver the proceeds, if sold, on or before March 15, 1984.
March 15, 1984 came, but Mr. Isip sought an extension which fell due on
April 7, 1984. April 7, 1984 came and went by, but Mr. Isip defaulted (pp.
41-46, tsn, ibid). The above is the subject matter of Criminal Case No. 13684 for Estafa against Manuel Isip.
On March 20, 1984, the Isips went again to Cavite City and got from
complainant one (1) Dome shaped ring with matching earring with diamonds
valued at P120,000.00. As with their previous agreement, the item was to be
returned or the proceeds of the sale be delivered on March 21, 1984 (pp. 4852, tsn, ibid). The following morning, however, Mrs. Isip issued two (2)
personal checks (Check Nos. 518646 and 518669 dated March 29, 1984
for P90,000.00 and P25,000.00, respectively) in payment for the Dome
shaped ring (p. 53, tsn, ibid).
This is the subject of Criminal Case No. 256084 for Estafa against the
spouses Isip and Criminal Case Nos. 156-84 and and (sic) 157-84 for
Violation of BP 22 against Marietta Isip.
At noontime on the same day, the Isip couple went back to the residence of
complainant and got from him one (1) collar heart shaped necklace and one
(1) baguette necklace worth P95,000.00 (p. 60, tsn, ibid). As agreed upon,
Marietta Isip signed a receipt with the condition that the jewelry or the
proceeds thereof be delivered to complainant on March 27, 1984. The Isips
defaulted and instead, Mrs. Isip issued a check (Check No. 518647) dated
March 27, 1984 in the amount of P90,000.00 (pp. 3-5, tsn, October 22,
1993).
The subject pieces of jewelry are the subject of Criminal Case No. 260-84
for Estafa against the Isip couple and Criminal Case No. 155-84 for
Violation of BP 22 against Marietta Isip.

Again, in the early evening of March 20, 1984, the Isips went to complainant
informing him that Balikbayan doctors are having a convention in Vigan,
Ilocos Sur saying that, that was the most opportune time to sell jewelries.
Assorted pieces of jewelry were delivered to Mrs. Isip as reflected in a
receipt duly signed by her (Exhibit 'O' ) acknowledging the value thereof to
the tune of P562,000.00.
Exhibit 'O' contained the promise that the jewelry or proceeds thereof will be
delivered on March 27, 1984. Inspite of the promise contained in Exhibit 'O',
Mrs. Isip issued a postdated check (Check No. 51867) dated March 27, 1984
in the amount of P562,000.00 as payment for the assorted pieces of jewelry
(pp. 8-12, tsn, October 22, 1993).
This is the subject matter of Criminal Case No. 261-84 for Estafa against the
couple and Criminal Case No. 146-84 against Marietta Isip for Violation of
BP 22.
All of the checks covered by the above transactions were deposited on April
6, 1984 (p. 14, tsn, ibid), but all of them bounced for being drawn against
insufficient funds. Demand letters sent to the couple proved futile (pp. 15-20,
ibid).
ii) Defense Version.
During all the times material to these cases, complainant Leonardo Jose, who
had his residence at Room 411, 4th Floor, Plaza Towers Condominium on
(sic) 3375 Guerrero Street, Ermita, Manila, but claims he had his ancestral
home at 506 P. Burgos Street, Caridad, Cavite, was an employee of the
Bureau of Customs, having been so since 1964 (Tr., 6/8/93, 7). Upon the
other hand, appellants Manuel S. Isip (Manuel hereafter) and Marietta M.
Isip (Marietta hereafter) are spouses, residents at 3635 M. Arellano Street,
Bacood, Sta. Mesa, Manila (Tr., 8/29/93, 4) and engaged in various business
undertakings in Pampanga, Nueva Ecija, Baguio City, Olongapo City and
Bataan (Tr., Idem, 9; Tr., 10/2/95, 13) - appellant Manuel, in the brokerage
and trucking business; while appellant Marietta, in that of selling jewelry and
financing, as well as in PX goods, real estate and cars, which she started
when she was still single (Tr., Idem, 9-10; Tr., 10/2/95, 12). In 1982, at the
casino in Olongapo City, appellant Marietta started obtaining jewelry from
losing or financially-strapped players which she repledged as security for
financing she obtained from one Nemesio Jose, father of complainant
Leonardo Jose (Tr., Idem, 11-12; Tr., Idem, 14). After about a year, when
Nemesio Jose ran short of capital, he referred appellants to his son,
complainant Leonardo Jose, with address at the Plaza Towers Condominium
aforesaid for needed financing (Tr., Idem, 13-14; Tr., Idem, 17-19).
Beginning early 1983, at complainant's residence at Plaza Tower
Condominium in Manila, appellant Marietta, accompanied by her husband
who participated only as a witness, started having transactions with
complainant who, on different dates in February, March and April, 1984,
extended various amounts to her for which appellant Marietta pledged
jewelry which, in turn, were agreed between her and complainant to be sold
on commission and to turn over the proceeds thereof or return the jewelry to
complainant (Tr., Idem, 16-18). In the course of the transactions, appellant
Marietta had issued several checks to complainant as guarantee for the
payment of the subject jewelry which have either been paid or redeemed,

had returned the unsold jewelry to complainant and had conveyed, by way of
payment for other jewelry, some personal properties, like brass and antics,
and real properties in Balanga, Bataan and Mabalacat, Pampanga, to
complainant who caused the same to be registered in the names of his son,
Christian Jose, and his wife, Zenaida Jose (Exhibits 1, 2, 2-A, 3, 4, 5, 6, 6-A,
7, 7-A), with the result that all the obligations of appellants to complainant
have already been paid for or offset (Tr., Idem, 23; Tr., Idem, 24, 34-36, 3739; Tr., 3/4/96, 7-8). Also, all the checks that appellant Marietta issued which
were initially dishonored have already been (sic) (Tr., 10/2/95, 25-30; Tr.,
3/4/96, 8-9). In fact, complainant caused the dismissal of some cases he filed
against appellants. Complainant however failed to return some of the
redeemed and/or paid checks issued to him by appellant Marietta on the
pretext that he did not bring them (Tr., 3/4/96, 20). Inasmuch as appellant
Marietta incurred some default in payment and complainant suspected that
she would not be able to redeem the checks or pay for the pledged jewelry,
complainant demanded that appellants sign certain documents to avoid any
misunderstanding, with threat of prosecution before the Cavite courts if they
do not comply (Tr., Idem, 19-20; Tr., 3/4/96, 5-6). So, in order to maintain
good relations with complainant, appellant Marietta signed the document
acknowledging obligations to him in one sitting, which appellant Manuel
witnessed (Tr., Idem, 21-22). Later, appellants learned that, although all the
transactions were entered into in Manila, complainant filed the cases herein
before the Cavite Regional Trial Court (Tr., Idem, 23-24). 7
On November 25, 1996, the trial court rendered its decision, the dispositive
portion thereof reading:
WHEREFORE, in view of the foregoing, the Court finds the accused Dra.
Marietta M. Isip guilty beyond reasonable doubt of a (sic) violation of B.P.
22 in Crim. Cases Nos. 146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and
157-84 and she is hereby sentenced to undergo imprisonment of One (1) year
of prision correctional (sic) in each case; and of Estafa in the following
Crim. Cases: No. 256-84 where she is sentenced to undergo imprisonment
of, from Twelve (12) years of prision mayor, as minimum, to Twenty (20)
years of reclusion temporal, as maximum, and to indemnify the complainant
Atty. Leonardo Jose the amount of P120,000.00 for the value of the articles
misappropriated; Crim. Case No. 257-84 where she is sentenced to undergo
imprisonment of, from Twelve (12) years of prision mayor, as minimum, to
Twenty (20) years of reclusion temporal, as maximum, and to indemnify the
complainant Atty. Leonardo Jose the amount of P150,000.00; Crim. Case
No. 260-84 where she is sentenced to undergo imprisonment of, from Eight
(8) years and One (1) day of prision mayor, as minimum, to Seventeen (17)
years of reclusion temporal, as maximum, and to indemnify the complainant
Atty. Leonardo Jose the amount of P95,000.00; Crim. Case No. 261-84
where she is sentenced to undergo imprisonment of, from Twelve (12) years
and One (1) day of reclusion temporal, as minimum, to Twenty (20) years
of reclusion temporal, as maximum, and to indemnify the complainant Atty.
Leonardo Jose the amount of P562,000.00; Crim. Case No. 378-84 where
she is sentenced to undergo imprisonment of, from Twelve (12) years and
One (1) day of reclusion temporal, as minimum, to Twenty (20) years
of reclusion temporal, as maximum, and to indemnify the complainant Atty.
Leonardo Jose the amount of P200,000.00 and to pay the costs.
13

Likewise, accused Manuel Isip is acquitted in Crim. Cases Nos. 256-84, 25784, 260-84, 261-84 and 378-84. However, in Crim. Case No. 136-84, he is
hereby found guilty of Estafa and he is hereby sentenced to undergo
imprisonment of, from Twelve (12) years and One (1) day of reclusion
temporal, as minimum, to Twenty (20) years of reclusion temporal, as
maximum, to indemnify the complainant Atty. Leonardo Jose in the amount
of P200,000.00 value of the jewelry misappropriated, and to pay the costs. 8
In ruling the way it did, the RTC found that the transactions involved in
these cases were sufficiently shown to have taken place at complainant Atty.
Leonardo Jose's ancestral house in Cavite City when the latter was on leave
of absence from the Bureau of Customs where he was connected. It said the
defense failed to substantially prove its allegations that the transactions
occurred in Manila, particularly in the Towers Condominium, and that
complainant is a resident of Bigasan, Makati. It added that the testimony of
Marietta Isip that the money with which the complainant initially agreed to
finance their transactions was withdrawn from the Sandigan Finance in
Cavite City further refuted the defense's claim that the transactions happened
in Manila. The trial court likewise found the defense's contention, that the
obligations were already paid and set-off with the turnover to complainant of
personal and real properties, to be untenable for it is contrary to human
nature to demand payment when the same had already been made and the
alleged set-offs were for other cases which were settled amicably and
subsequently dismissed upon motion of the City Prosecutor's Office at the
instance of the complainant.
The trial court was convinced that accused Marietta Isip misappropriated the
pieces of jewelry involved in Criminal Cases No. 256-84, 257-84, 260-84,
261-84 and 378-84 and violated Batas Pambansa Blg. 22 when she issued
the checks mentioned in Criminal Cases No. 146-84, 147-84, 148-84, 14984, 155-84, 156-84 and 157-84. As to petitioner, the trial court acquitted him
in Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84 finding
him to have acted as a mere witness when he signed the receipts involved in
said cases, but found him liable in Criminal Case No. 136-84 for
misappropriating a 7-carat diamond men's ring which he secured from the
complainant.
Aggrieved, petitioner and spouse appealed to the Court of Appeals assigning
the following as errors:
-ITHE TRIAL COURT ERRED IN TAKING COGNIZANCE OF AND
DECIDING THE CASES AGAINST APPELLANTS AND IN NOT
DISMISSING THE SAME UPON THE GROUND THAT NONE OF THE
ESSENTIAL INGREDIENTS OF THE OFFENSES CHARGED THEREIN
WAS COMMITTED WITH (SIC) ITS TERRITORIAL JURISDICTION.
- II THE TRIAL COURT, ASSUMING IT HAD JURISDICTION OVER THE
CASES BELOW, ERRD IN NOT HOLDING THAT NO CRIMINAL
LIABILITY UNDER BATAS PAMBANSA BLG. 22 WAS INCURRED BY
APPELLANT MARIETTA M. ISIP FOR THE ISSUANCE OF THE

SUBJECT CHECKS INASMUCH AS SAID CHECKS WERE ISSUED AS

MERE GUARANTY FOR OBLIGATIONS INCURRED.
- III THE TRIAL COURT, ASSUMING ANY INCIPIENT LIABILITY FOR
THE CRIME OF ESTAFA HAD BEEN INCURRED BY APPELLANTS IN
THE PREMISES, ERRED IN NOT HOLDING THAT SUCH INCIPIENT
LIABILITY
HAD
BEEN
EXTINGUISHED
BY
PAYMENTS/REDEMPTIONS MADE AND/OR NOVATION ENTERED
INTO BETWEEN COMPLAINANT AND SAID APPELLANTS.
- IV THE TRIAL COURT ERRED IN FINDING APPELLANTS MANUEL S.
ISIP AND MARIETTA M. ISIP GUILTY BEYOND REASONABLE
DOUBT OF THE CRIMES OF ESTAFA AND VIOLATION OF BATAS
PAMBANSA BLG. 22 RESPECTFULLY IMPUTED UPON THEM AND
IN NOT ACQUITTING THEM UPON THE GROUND THAT THEIR
GUILT THEREOF, OR OF ANY CRIME FOR THAT MATTER, HAD NOT
BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR
THAT THE LIABILITY INCURRED BY THEM, IF ANY, IS MERELY
CIVIL.9
Before the Court of Appeals could have decided the case, Marietta Isip died
thereby extinguishing her criminal and civil liability, if any.
In a decision promulgated 26 October 2004, the Court of Appeals disposed
of the case as follows:
WHEREFORE, the appealed decision of the Regional Trial Court of Cavite
City (Branch XVII)'
1. In Crim. Case No. 136-84 is AFFIRMED with the MODIFICATIONS that
the sentence imposed on accused-appellant Manuel S. Isip shall be two (2)
years of prision correccional, as minimum, to twenty (20) years of reclusion
temporal, as maximum, and that the sum of P200,000.00 he was ordered to
pay to Leonardo A. Jose shall bear interest at the legal rate from filing of the
information until fully paid;
2. In Crim. Cases Nos. 146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and
157-84 is REVERSED and accused-appellant Marietta M. Isip
ACQUITTED of the crimes charged; andcralawlibrary
3. In Crim. Cases Nos. 256-84, 257-84, 260-84, 261-84 and 378-84 is
REVERSED and accused-appellants Manuel S. Isip and Marietta M. Isip
ACQUITTED of the crimes charged, but ordering them to pay to Leonardo
A.
Jose,
jointly
and
severally,
the
sums
of P120,000.00, P150,000.00, P95,000.00, P562,000.00
and P200,000.00
representing the amounts involved in said cases, plus interest thereon at the
legal rate from filing of the information until fully paid. 10
The Court of Appeals upheld the lower court's finding that the venue was
properly laid and that the checks were delivered by the two accused and/or
that the transactions transpired at complainant's ancestral home in Cavite

City, and that, consequently, the offenses charged took place within its
territorial jurisdiction. With respect to the seven counts of violation of Batas
Pambansa Blg. 22, the appellate court acquitted Marietta Isip of the charges
on the ground that since the checks involved were issued prior to 8 August
1984, the dishonor thereof did not give rise to a criminal liability pursuant to
Ministry Circular No. 4 of the Ministry of Justice.
As to the Estafa cases (Criminal Cases No. 256-84, 257-84, 260-84, 261-84
and 378-84), the Court of Appeals ruled that since the checks issued by
Marietta Isip as payment for the pieces of jewelry were dishonored, there
was no payment to speak of. It also found the defense's claim of
redemption/dacion en pago - that real and personal properties were conveyed
to complainant who executed affidavits of desistance and caused the
dismissal of some of the cases - to be unmeritorious. However, the appellate
court ruled that though novation does not extinguish criminal liability, it may
prevent the rise of such liability as long at it occurs prior to the filing of the
criminal information in court. In these five cases, it ruled that there was
novation because complainant accepted the checks issued by Marietta Isip as
payment for the pieces of jewelry involved in said cases. Consequently, the
Court of Appeals acquitted Marietta and petitioner, 11 but held them liable to
complainant for the value of the jewelry involved.
As regards Criminal Case No. 136-84 for estafa against petitioner, the
appellate court affirmed the trial court's ruling of conviction. It found
petitioner's claims that he did not receive the jewelry worth P200,000.00
mentioned in the information; that the receipt he issued for said jewelry was
among those documents which were forced upon him to sign under threat of
criminal prosecution; and that he signed the same to preserve his friendship
with complainant, to be not persuasive.
On 17 November 2004, petitioner, for himself and in representation of his
deceased wife, Marietta Isip, filed a Partial Motion for Reconsideration
insofar as it affirmed his conviction in Criminal Case No. 136-84 and
adjudged him civilly liable, jointly and severally, with Marietta Isip in
Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84.12
On 26 October 2005, the Court of Appeals, taking into account the death of
Marietta M. Isip prior to the promulgation of its decision, rendered an
Amended Decision with the following dispositive portion:
WHEREFORE, the decision dated October 26, 2004 is AMENDED in
respect to par. 3 of the dispositive portion thereof which shall now read as
follows:
"3. In Crim. Cases Nos. 256-84, 257-84, 260-84, 261-84 and 378-84 is
REVERSED, accused-appellants Manuel S. Isip and Marietta M. Isip
ACQUITTED of the crimes charged and the civil aspect of those cases
DISMISSED."13
Petitioner is now before us appealing his conviction in Criminal Case No.
136-84. He raises the following issues:

14

First - WHETHER OR NOT THE TRIAL COURT HAD JURISDICTION

OVER THE OFFENSE IMPUTED TO PETITIONER AND FOR WHICH
HE WAS CONVICTED;
Second - WHETHER THE EVIDENCE SUFFICIENTLY SHOWS THAT
PETITIONER RECEIVED THE SUBJECT OF SAID OFFENSE OR THAT
HE RECEIVED IT IN CAVITE CITY; andcralawlibrary
Third, WHETHER THE INCIPIENT CRIMINAL LIABILITY ARISING
FROM SAID OFFENSE, IS (sic) ANY, WAS EXTINGUISHED BY
NOVATION.
On the first issue, petitioner maintains that the RTC had no jurisdiction over
the estafa charge in Criminal Case No. 136-84 and it is pure speculation and
conjectural, if not altogether improbable or manifestly absurd, to suppose
that any of the essential elements of the Estafa charged in Criminal Case No.
136-84 took place in Cavite City. First, he states that the residence of the
parties is immaterial and that it is the situs of the transaction that counts. He
argues that it is non sequitur that simply because complainant had an alleged
ancestral house in Caridad, Cavite, complainant actually lived there and had
the transactions there with him when he and his late wife were actual
residents of Manila. Mere convenience suggests that their transaction was
entered into in Manila. He adds that the source of the fund used to finance
the transactions is likewise inconsequential because it is where the subject
item was delivered and received by petitioner and/or where it was to be
accounted for that determines venue where Estafa, if any, may be charged
and tried. Second, he further argues that it does not follow that because
complainant may have been on leave from the Bureau of Customs, the
transactions were necessarily entered into during that leave and in Cavite
City. He asserts that there is no competent proof showing that during his
leave of absence, he stayed in Cavite City; and that the transactions involved,
including the subject of Criminal Case 136-84 covering roughly the period
from February to April 1984, coincided with his alleged leave.
The concept of venue of actions in criminal cases, unlike in civil cases, is
jurisdictional.14 The place where the crime was committed determines not
only the venue of the action but is an essential element of jurisdiction. 15 It is
a fundamental rule that for jurisdiction to be acquired by courts in criminal
cases, the offense should have been committed or any one of its essential
ingredients should have taken place within the territorial jurisdiction of the
court. Territorial jurisdiction in criminal cases is the territory where the court
has jurisdiction to take cognizance or to try the offense allegedly committed
therein by the accused. Thus, it cannot take jurisdiction over a person
charged with an offense allegedly committed outside of that limited territory.
Furthermore, the jurisdiction of a court over the criminal case is determined
by the allegations in the complaint or information. And once it is so shown,
the court may validly take cognizance of the case. However, if the evidence
adduced during the trial shows that the offense was committed somewhere
else, the court should dismiss the action for want of jurisdiction. 16
In the case at bar, we, like the RTC and the Court of Appeals, are convinced
that the venue was properly laid in the RTC of Cavite City. The complainant
had sufficiently shown that the transaction covered by Criminal Case No.

136-84 took place in his ancestral home in Cavite City when he was on
approved leave of absence 17 from the Bureau of Customs. Since it has been
shown that venue was properly laid, it is now petitioner's task to prove
otherwise, for it is his claim that the transaction involved was entered into in
Manila. The age-old but familiar rule that he who alleges must prove his
allegations applies.18
In the instant case, petitioner failed to establish by sufficient and competent
evidence that the transaction happened in Manila. Petitioner argues that since
he and his late wife actually resided in Manila, convenience alone unerringly
suggests that the transaction was entered into in Manila. We are not
persuaded. The fact that Cavite City is a bit far from Manila does not
necessarily mean that the transaction cannot or did not happen there.
Distance will not prevent any person from going to a distant place where he
can procure goods that he can sell so that he can earn a living. This is true in
the case at bar. It is not improbable or impossible for petitioner and his wife
to have gone, not once, but twice in one day, to Cavite City if that is the
number of times they received pieces of jewelry from complainant.
Moreover, the fact that the checks issued by petitioner's late wife in all the
transactions with complainant were drawn against accounts with banks in
Manila or Makati likewise cannot lead to the conclusion that the transactions
were not entered into in Cavite City.
It is axiomatic that when it comes to credibility, the trial court's assessment
deserves great weight, and is even conclusive and binding, if not tainted with
arbitrariness or oversight of some fact or circumstance of weight and
influence. The reason is obvious. Having the full opportunity to observe
directly the witnesses' deportment and manner of testifying, the trial court is
in a better position than the appellate court to evaluate properly testimonial
evidence.19 It is to be pointed out that the findings of fact of the trial court
have been affirmed by the Court of Appeals. It is settled that when the trial
court's findings have been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court. 20 In the case at bar, we
find no compelling reason to reverse the findings of the trial court, as
affirmed by the Court of Appeals, and to apply the exception. We so hold
that there is sufficient evidence to show that the particular transaction took
place in Cavite City.
On the second issue, petitioner contends that the Court of Appeals' holding
that the ring subject of Crim. Case No. 136-84 was delivered to and received
by petitioner is seriously flawed. He argues that assuming he signed the
receipt evidencing delivery of the ring, not due to the threat of prosecution
but merely to preserve his friendship with complainant, the fact remains that
there is no showing that the ring was actually delivered to him. Petitioner
insists there is no competent evidence that the ring subject of Criminal Case
No. 136-84 was ever actually received by, or delivered to, him.
We find his contentions untenable. The finding of the Court of Appeals that
petitioner received the ring subject of Criminal Case No. 136-84 is supported
by the evidence on record. The acknowledgment receipt 21 executed by
petitioner is very clear evidence that he received the ring in question.

Petitioner's claim that he did not receive any ring and merely executed said
receipt in order to preserve his friendship with the complainant deserves
scant consideration.
Petitioner, an astute businessman as he is, knows the significance, import
and obligation of what he executed and signed. The following disputable
presumptions weigh heavily against petitioner, namely: (a) That a person
intends the ordinary consequences of his voluntary act; (b) That a person
takes ordinary care of his concerns; (c) That private transactions have been
fair and regular; and (d) That the ordinary course of business has been
followed 22 Thus, it is presumed that one does not sign a document without
first informing himself of its contents and consequences. We know that
petitioner understood fully well the ramification of the acknowledgment
receipt he executed. It devolves upon him then to overcome these
presumptions. We, however, find that he failed to do so. Aside from his selfserving allegation that he signed the receipt to preserve his friendship with
complainant, there is no competent evidence that would rebut said
presumptions. It is clear from the evidence that petitioner signed the
acknowledgment receipt when he received the ring from complainant in
Cavite City.
Petitioner's argument that he did not receive the subject ring 23 is further
belied by the testimony of his wife when the latter testified that said ring was
borrowed by him on 7 March 1984. 24 In all, the delivery of the ring and the
transaction regarding the same occurred in Cavite City.
Anent the third issue, petitioner argues that, assuming gratia argumenti that
any criminal liability was incurred by petitioner respecting the ring subject
of Criminal Case No. 136-84, the same was incipient, at best, and was
effectively extinguished by novation. The personal and real properties
delivered/conveyed to complainant were more than sufficient to cover or
offset whatever balance remained of the obligations incurred as shown by
the fact that complainant executed Affidavits of Desistance and caused the
dismissal of some of the cases filed. He maintains that the Court of Appeals
did not apply the rule of novation as regards the ring subject of Criminal
Case No. 136-84 because it rejected his denial of receipt of said ring and his
claim that he signed the receipt supposedly covering the same under threat of
prosecution and merely to preserve their good relations. He claims the Court
should not have denied the application of the rule of novation on said case
because the rejected initial claim (that he did not receive the ring and that he
signed the receipt to preserve their good relations) was but an alternative
defense and its rejection is not a reason to deny the application of the
novation rule in said case.
We agree with the Court of Appeals that novation 25 cannot be applied in
Criminal Case No. 136-84. The claim of petitioner that the personal and real
properties conveyed to complainant and/or to his family were more than
sufficient to cover or offset whatever balance remained of the obligations
incurred has no basis. If it were true that the properties delivered to
complainant were sufficient, the latter would have caused the dismissal of
all, not some as in this instance, the cases against petitioner and his late wife.
This, complainant did not do for the simple reason that the properties
15

conveyed to him were not enough to cover all the obligations incurred by
petitioner and his deceased wife. Complainant testified that the properties he
received were in settlement of cases other than the cases being tried
herein.26In particular, he said that petitioner and his spouse settled eight
cases which were subsequently dismissed when they delivered properties as
payment.27 It follows then that the obligations incurred by petitioner and his
spouse were not yet settled when the criminal cases herein tried were filed.
His contention, that the Court of Appeals did not apply the rule of novation
in Criminal Case No. 136-84 because it rejected or did not believe his
(alternative) defense of denial, is untenable. The main reason why the Court
of Appeals did not apply novation in said case was that not all the elements
of novation are present. For novation to take place, four essential requisites
have to be met, namely, (1) a previous valid obligation; (2) an agreement of
all parties concerned to a new contract; (3) the extinguishment of the old
obligation; and (4) the birth of a valid new obligation. In Criminal Case No.
136-84, only the first element is extant. What distinguishes this case from
Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84, where the
Court of Appeals applied the rule of novation, was that there were checks
issued as payment, though subsequently dishonored, for the pieces of
jewelry involved. In Criminal Case No. 136-84, it is very clear that neither
petitioner nor his wife issued any check as payment for the subject ring that
could have extinguished his old obligation and brought to life a new
obligation.
From the allegations of the information in Criminal Case No. 136-84, it is
clear that petitioner was charged with Estafa under Article 315, paragraph
1(b), of the Revised Penal Code. The elements of estafa with abuse of
confidence are: (1) the offender receives the money, goods or other personal
property in trust, or on commission, or for administration, or under any other
obligation involving the duty to deliver, or to return, the same; (2) the
offender misappropriates or converts such money or property or denies
receiving such money or property; (3) the misappropriation or conversion or
denial is to the prejudice of another; and (4) the offended party demands that
the offender return the money or property. 28 All these are present in this
case. Petitioner received from complainant a seven-carat diamond (men's
ring), valued at P200,000.00, for the purpose of selling the same on
commission basis and to deliver the proceeds of the sale thereof or return the
jewelry if not sold. Petitioner misappropriated or converted said ring for his
own benefit and even denied receiving the same. Despite repeated demands
from complainant, petitioner failed to return the ring or the proceeds of the
sale thereof causing damage and prejudice to complainant in the amount
of P200,000.00.
As to the penalty imposed by the Court of Appeals on petitioner, we find the
same to be in order.
WHEREFORE, the decision and amended decision of the Court of Appeals
in CA-G.R. No. 21275 dated 26 October 2004 dated 26 October 2005,
respectively, are AFFIRMED.
SO ORDERED.
16

384 U.S. 436

Miranda v. Arizona (No. 759)
Argued: February 28-March 1, 1966
Decided: June 13, 1966 [*]
98 Ariz. 18, 401 P.2d 721; 15 N.Y.2d 970, 207 N.E.2d 527; 16 N.Y.2d 614,
209 N.E.2d 110; 342 F.2d 684, reversed; 62 Cal.2d 571, 400 P.2d 97,
affirmed.

Syllabus

Opinion, Warren

CDInPart, Clark

Dissent, Harlan

Dissent, White

Syllabus
In each of these cases, the defendant, while in police custody, was
questioned by police officers, detectives, or a prosecuting attorney in a room
in which he was cut off from the outside world. None of the defendants was
given a full and effective warning of his rights at the outset of the
interrogation process. In all four cases, the questioning elicited oral
admissions, and, in three of them, signed statements as well, which were
admitted at their trials. All defendants were convicted, and all convictions,
except in No. 584, were affirmed on appeal.
Held:
1. The prosecution may not use statements, whether exculpatory or
inculpatory, stemming from questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way, unless it demonstrates the use
of procedural safeguards effective to secure the Fifth Amendment's privilege
against self-incrimination. Pp. 444-491.
(a) The atmosphere and environment of incommunicado interrogation as it
exists today is inherently intimidating, and works to undermine the privilege
against self-incrimination. Unless adequate preventive measures are taken to
dispel the compulsion inherent in custodial surroundings, no statement
obtained from the defendant can truly be the product of his free choice. Pp.
445-458.
(b) The privilege against self-incrimination, which has had a long and
expansive historical development, is the essential mainstay of our adversary
system, and guarantees to the individual the "right to remain silent unless he
chooses to speak in the unfettered exercise of his own will," during a period
of custodial interrogation [p437] as well as in the courts or during the course
of other official investigations. Pp. 458-465.

(c) The decision in Escobedo v. Illinois, 378 U.S. 478, stressed the need for
protective devices to make the process of police interrogation conform to the
dictates of the privilege. Pp. 465-466.
(d) In the absence of other effective measures, the following procedures to
safeguard the Fifth Amendment privilege must be observed: the person in
custody must, prior to interrogation, be clearly informed that he has the right
to remain silent, and that anything he says will be used against him in court;
he must be clearly informed that he has the right to consult with a lawyer and
to have the lawyer with him during interrogation, and that, if he is indigent, a
lawyer will be appointed to represent him. Pp. 467-473.
(e) If the individual indicates, prior to or during questioning, that he wishes
to remain silent, the interrogation must cease; if he states that he wants an
attorney, the questioning must cease until an attorney is present. Pp. 473474.
(f) Where an interrogation is conducted without the presence of an attorney
and a statement is taken, a heavy burden rests on the Government to
demonstrate that the defendant knowingly and intelligently waived his right
to counsel. P. 475.
(g) Where the individual answers some questions during in-custody
interrogation, he has not waived his privilege, and may invoke his right to
remain silent thereafter. Pp. 475-476.
(h) The warnings required and the waiver needed are, in the absence of a
fully effective equivalent, prerequisites to the admissibility of any statement,
inculpatory or exculpatory, made by a defendant. Pp. 476-477.
2. The limitations on the interrogation process required for the protection of
the individual's constitutional rights should not cause an undue interference
with a proper system of law enforcement, as demonstrated by the procedures
of the FBI and the safeguards afforded in other jurisdictions. Pp. 479-491.

privilege under the Fifth Amendment to the Constitution not to be compelled

to incriminate himself. [p440]
We dealt with certain phases of this problem recently in Escobedo v.
Illinois, 378 U.S. 478 (1964). There, as in the four cases before us, law
enforcement officials took the defendant into custody and interrogated him
in a police station for the purpose of obtaining a confession. The police did
not effectively advise him of his right to remain silent or of his right to
consult with his attorney. Rather, they confronted him with an alleged
accomplice who accused him of having perpetrated a murder. When the
defendant denied the accusation and said "I didn't shoot Manuel, you did it,"
they handcuffed him and took him to an interrogation room. There, while
handcuffed and standing, he was questioned for four hours until he
confessed. During this interrogation, the police denied his request to speak to
his attorney, and they prevented his retained attorney, who had come to the
police station, from consulting with him. At his trial, the State, over his
objection, introduced the confession against him. We held that the statements
thus made were constitutionally inadmissible.
This case has been the subject of judicial interpretation and spirited legal
debate since it was decided two years ago. Both state and federal courts, in
assessing its implications, have arrived at varying conclusions. [n1] A wealth
of scholarly material has been written tracing its ramifications and
underpinnings. [n2] Police and prosecutor [p441] have speculated on its
range and desirability. [n3] We granted certiorari in these cases, 382 U.S.
924, 925, 937, in order further to explore some facets of the problems thus
exposed of applying the privilege against self-incrimination to in-custody
interrogation, and to give [p442] concrete constitutional guidelines for law
enforcement agencies and courts to follow.

Opinion

We start here, as we did in Escobedo, with the premise that our holding is
not an innovation in our jurisprudence, but is an application of principles
long recognized and applied in other settings. We have undertaken a
thorough reexamination of the Escobedo decision and the principles it
announced, and we reaffirm it. That case was but an explication of basic
rights that are enshrined in our Constitution -- that "No person . . . shall be
compelled in any criminal case to be a witness against himself," and that "the
accused shall . . . have the Assistance of Counsel" -- rights which were put in
jeopardy in that case through official overbearing. These precious rights
were fixed in our Constitution only after centuries of persecution and
struggle. And, in the words of Chief Justice Marshall, they were secured "for
ages to come, and . . . designed to approach immortality as nearly as human
institutions can approach it," Cohens v. Virginia, 6 Wheat. 264, 387 (1821).

WARREN, C.J., Opinion of the Court

Over 70 years ago, our predecessors on this Court eloquently stated:

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

The maxim nemo tenetur seipsum accusare had its origin in a protest against
the inquisitorial and manifestly unjust methods of interrogating accused
persons, which [have] long obtained in the continental system, and, until the
expulsion of the Stuarts from the British throne in 1688 and the erection of
additional barriers for the protection of the people against the exercise of
arbitrary power, [were] not uncommon even in England. While the
admissions or confessions of the prisoner, when voluntarily and freely made,
have always ranked high in the scale of incriminating evidence, if an accused
17

3. In each of these cases, the statements were obtained under circumstances

that did not meet constitutional standards for protection of the privilege
against self-incrimination. Pp. 491-499.
[p439]

TOP

The cases before us raise questions which go to the roots of our concepts of
American criminal jurisprudence: the restraints society must observe
consistent with the Federal Constitution in prosecuting individuals for crime.
More specifically, we deal with the admissibility of statements obtained from
an individual who is subjected to custodial police interrogation and the
necessity for procedures which assure that the individual is accorded his

person be asked to explain his apparent connection with a crime under

investigation, the ease with which the [p443] questions put to him may
assume an inquisitorial character, the temptation to press the witness unduly,
to browbeat him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident in many of
the earlier state trials, notably in those of Sir Nicholas Throckmorton and
Udal, the Puritan minister, made the system so odious as to give rise to a
demand for its total abolition. The change in the English criminal procedure
in that particular seems to be founded upon no statute and no judicial
opinion, but upon a general and silent acquiescence of the courts in a popular
demand. But, however adopted, it has become firmly embedded in English
as well as in American jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds of the American colonists
that the States, with one accord, made a denial of the right to question an
accused person a part of their fundamental law, so that a maxim, which in
England was a mere rule of evidence, became clothed in this country with
the impregnability of a constitutional enactment.
Brown v. Walker, 161 U.S. 591, 596-597 (1896). In stating the obligation of
the judiciary to apply these constitutional rights, this Court declared
in Weems v. United States, 217 U.S. 349, 373 (1910):
. . . our contemplation cannot be only of what has been, but of what may be.
Under any other rule, a constitution would indeed be as easy of application
as it would be deficient in efficacy and power. Its general principles would
have little value, and be converted by precedent into impotent and lifeless
formulas. Rights declared in words might be lost in reality. And this has been
recognized. The [p444] meaning and vitality of the Constitution have
developed against narrow and restrictive construction.
This was the spirit in which we delineated, in meaningful language, the
manner in which the constitutional rights of the individual could be enforced
against overzealous police practices. It was necessary in Escobedo, as here,
to insure that what was proclaimed in the Constitution had not become but a
"form of words," Silverthorne Lumber Co. v. United States, 251 U.S. 385,
392 (1920), in the hands of government officials. And it is in this spirit,
consistent with our role as judges, that we adhere to the principles of
Escobedo today.
Our holding will be spelled out with some specificity in the pages which
follow, but, briefly stated, it is this: the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way. [n4] As for the procedural
safeguards to be employed, unless other fully effective means are devised to
inform accused persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain silent,
that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed.

The defendant may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently. If, however, he indicates in
any manner and at any stage of the [p445] process that he wishes to consult
with an attorney before speaking, there can be no questioning. Likewise, if
the individual is alone and indicates in any manner that he does not wish to
be interrogated, the police may not question him. The mere fact that he may
have answered some questions or volunteered some statements on his own
does not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter consents to be
questioned.
I
The constitutional issue we decide in each of these cases is the admissibility
of statements obtained from a defendant questioned while in custody or
otherwise deprived of his freedom of action in any significant way. In each,
the defendant was questioned by police officers, detectives, or a prosecuting
attorney in a room in which he was cut off from the outside world. In none
of these cases was the defendant given a full and effective warning of his
rights at the outset of the interrogation process. In all the cases, the
questioning elicited oral admissions, and in three of them, signed statements
as well which were admitted at their trials. They all thus share salient
features -- incommunicado interrogation of individuals in a policedominated atmosphere, resulting in self-incriminating statements without
full warnings of constitutional rights.
An understanding of the nature and setting of this in-custody interrogation is
essential to our decisions today. The difficulty in depicting what transpires at
such interrogations stems from the fact that, in this country, they have largely
taken place incommunicado. From extensive factual studies undertaken in
the early 1930's, including the famous Wickersham Report to Congress by a
Presidential Commission, it is clear that police violence and the "third
degree" flourished at that time. [n5] [p446] In a series of cases decided by
this Court long after these studies, the police resorted to physical brutality -beating, hanging, whipping -- and to sustained and protracted questioning
incommunicado in order to extort confessions. [n6] The Commission on
Civil Rights in 1961 found much evidence to indicate that "some policemen
still resort to physical force to obtain confessions," 1961 Comm'n on Civil
Rights Rep. Justice, pt. 5, 17. The use of physical brutality and violence is
not, unfortunately, relegated to the past or to any part of the country. Only
recently in Kings County, New York, the police brutally beat, kicked and
placed lighted cigarette butts on the back of a potential witness under
interrogation for the purpose of securing a statement incriminating a third
party. People v. Portelli, 15 N.Y.2d 235, 205 N.E.2d 857, 257 N.Y.S.2d 931
(1965).[n7] [p447]
The examples given above are undoubtedly the exception now, but they are
sufficiently widespread to be the object of concern. Unless a proper
limitation upon custodial interrogation is achieved -- such as these decisions
will advance -- there can be no assurance that practices of this nature will be
eradicated in the foreseeable future. The conclusion of the Wickersham
Commission Report, made over 30 years ago, is still pertinent:

To the contention that the third degree is necessary to get the facts, the
reporters aptly reply in the language of the present Lord Chancellor of
England (Lord Sankey):
It is not admissible to do a great right by doing a little wrong. . . . It is not
sufficient to do justice by obtaining a proper result by irregular or improper
means.
Not only does the use of the third degree involve a flagrant violation of law
by the officers of the law, but it involves also the dangers of false
confessions, and it tends to make police and prosecutors less zealous in the
search for objective evidence. As the New York prosecutor quoted in the
report said, "It is a short-cut, and makes the police lazy and unenterprising."
Or, as another official quoted remarked: "If you use your fists,
you [p448] are not so likely to use your wits." We agree with the conclusion
expressed in the report, that
The third degree brutalizes the police, hardens the prisoner against society,
and lowers the esteem in which the administration of Justice is held by the
public.
IV National Commission on Law Observance and Enforcement, Report on
Lawlessness in Law Enforcement 5 (1931).
Again we stress that the modern practice of in-custody interrogation is
psychologically, rather than physically, oriented. As we have stated before,
Since Chambers v. Florida, 309 U.S. 227, this Court has recognized that
coercion can be mental as well as physical, and that the blood of the accused
is not the only hallmark of an unconstitutional inquisition.
Blackburn v. Alabama, 361 U.S. 199, 206 (1960). Interrogation still takes
place in privacy. Privacy results in secrecy, and this, in turn, results in a gap
in our knowledge as to what, in fact, goes on in the interrogation rooms. A
valuable source of information about present police practices, however, may
be found in various police manuals and texts which document procedures
employed with success in the past, and which recommend various other
effective tactics. [n8] These [p449] texts are used by law enforcement
agencies themselves as guides. [n9] It should be noted that these texts
professedly present the most enlightened and effective means presently used
to obtain statements through custodial interrogation. By considering these
texts and other data, it is possible to describe procedures observed and noted
around the country.
The officers are told by the manuals that the
principal psychological factor contributing to a successful interrogation
is privacy -- being alone with the person under interrogation. [n10]
The efficacy of this tactic has been explained as follows:
If at all practicable, the interrogation should take place in the investigator's
office or at least in a room of his own choice. The subject should be deprived
of every psychological advantage. In his own home, he may be confident,
indignant, or recalcitrant. He is more keenly aware of his rights
and [p450] more reluctant to tell of his indiscretions or criminal behavior
18

within the walls of his home. Moreover his family and other friends are
nearby, their presence lending moral support. In his own office, the
investigator possesses all the advantages. The atmosphere suggests the
invincibility of the forces of the law. [n11]
To highlight the isolation and unfamiliar surroundings, the manuals instruct
the police to display an air of confidence in the suspect's guilt and, from
outward appearance, to maintain only an interest in confirming certain
details. The guilt of the subject is to be posited as a fact. The interrogator
should direct his comments toward the reasons why the subject committed
the act, rather than court failure by asking the subject whether he did it. Like
other men, perhaps the subject has had a bad family life, had an unhappy
childhood, had too much to drink, had an unrequited desire for women. The
officers are instructed to minimize the moral seriousness of the
offense, [n12] to cast blame on the victim or on society. [n13] These tactics
are designed to put the subject in a psychological state where his story is but
an elaboration of what the police purport to know already -- that he is guilty.
Explanations to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an interrogator should possess
are patience and perseverance. [p451] One writer describes the efficacy of
these characteristics in this manner:
In the preceding paragraphs, emphasis has been placed on kindness and
stratagems. The investigator will, however, encounter many situations where
the sheer weight of his personality will be the deciding factor. Where
emotional appeals and tricks are employed to no avail, he must rely on an
oppressive atmosphere of dogged persistence. He must interrogate steadily
and without relent, leaving the subject no prospect of surcease. He must
dominate his subject and overwhelm him with his inexorable will to obtain
the truth. He should interrogate for a spell of several hours, pausing only for
the subject's necessities in acknowledgment of the need to avoid a charge of
duress that can be technically substantiated. In a serious case, the
interrogation may continue for days, with the required intervals for food and
sleep, but with no respite from the atmosphere of domination. It is possible
in this way to induce the subject to talk without resorting to duress or
coercion. The method should be used only when the guilt of the subject
appears highly probable. [n14]
The manuals suggest that the suspect be offered legal excuses for his actions
in order to obtain an initial admission of guilt. Where there is a suspected
revenge killing, for example, the interrogator may say:
Joe, you probably didn't go out looking for this fellow with the purpose of
shooting him. My guess is, however, that you expected something from him,
and that's why you carried a gun -- for your own protection. You knew him
for what he was, no good. Then when you met him, he probably started
using foul, abusive language and he gave some indication [p452] that he was
about to pull a gun on you, and that's when you had to act to save your own
life. That's about it, isn't it, Joe? [n15]
Having then obtained the admission of shooting, the interrogator is advised
to refer to circumstantial evidence which negates the self-defense

explanation. This should enable him to secure the entire story. One text notes
that,
Even if he fails to do so, the inconsistency between the subject's original
denial of the shooting and his present admission of at least doing the
shooting will serve to deprive him of a self-defense "out" at the time of
trial. [n16]
When the techniques described above prove unavailing, the texts recommend
they be alternated with a show of some hostility. One ploy often used has
been termed the "friendly-unfriendly," or the "Mutt and Jeff" act:
. . . In this technique, two agents are employed. Mutt, the relentless
investigator, who knows the subject is guilty and is not going to waste any
time. He's sent a dozen men away for this crime, and he's going to send the
subject away for the full term. Jeff, on the other hand, is obviously a
kindhearted man. He has a family himself. He has a brother who was
involved in a little scrape like this. He disapproves of Mutt and his tactics,
and will arrange to get him off the case if the subject will cooperate. He can't
hold Mutt off for very long. The subject would be wise to make a quick
decision. The technique is applied by having both investigators present while
Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt's
tactics. When Jeff makes his plea for cooperation, Mutt is not present in the
room. [n17] [p453]
The interrogators sometimes are instructed to induce a confession out of
trickery. The technique here is quite effective in crimes which require
identification or which run in series. In the identification situation, the
interrogator may take a break in his questioning to place the subject among a
group of men in a line-up.
The witness or complainant (previously coached, if necessary) studies the
line-up and confidently points out the subject as the guilty party. [n18]
Then the questioning resumes "as though there were now no doubt about the
guilt of the subject." A variation on this technique is called the "reverse lineup":
The accused is placed in a line-up, but this time he is identified by several
fictitious witnesses or victims who associated him with different offenses. It
is expected that the subject will become desperate and confess to the offense
under investigation in order to escape from the false accusations. [n19]
The manuals also contain instructions for police on how to handle the
individual who refuses to discuss the matter entirely, or who asks for an
attorney or relatives. The examiner is to concede him the right to remain
silent.
This usually has a very undermining effect. First of all, he is disappointed in
his expectation of an unfavorable reaction on the part of the interrogator.
Secondly, a concession of this right to remain silent impresses [p454] the
subject with the apparent fairness of his interrogator. [n20]
After this psychological conditioning, however, the officer is told to point
out the incriminating significance of the suspect's refusal to talk:

Joe, you have a right to remain silent. That's your privilege, and I'm the last
person in the world who'll try to take it away from you. If that's the way you
want to leave this, O. K. But let me ask you this. Suppose you were in my
shoes, and I were in yours, and you called me in to ask me about this, and I
told you, "I don't want to answer any of your questions." You'd think I had
something to hide, and you'd probably be right in thinking that. That's
exactly what I'll have to think about you, and so will everybody else. So let's
sit here and talk this whole thing over. [n21]
Few will persist in their initial refusal to talk, it is said, if this monologue is
employed correctly.
In the event that the subject wishes to speak to a relative or an attorney, the
following advice is tendered:
[T]he interrogator should respond by suggesting that the subject first tell the
truth to the interrogator himself, rather than get anyone else involved in the
matter. If the request is for an attorney, the interrogator may suggest that the
subject save himself or his family the expense of any such professional
service, particularly if he is innocent of the offense under investigation. The
interrogator may also add, "Joe, I'm only looking for the truth, and if you're
telling the truth, that's it. You can handle this by yourself." [n22] [p455]
From these representative samples of interrogation techniques, the setting
prescribed by the manuals and observed in practice becomes clear. In
essence, it is this: to be alone with the subject is essential to prevent
distraction and to deprive him of any outside support. The aura of confidence
in his guilt undermines his will to resist. He merely confirms the
preconceived story the police seek to have him describe. Patience and
persistence, at times relentless questioning, are employed. To obtain a
confession, the interrogator must "patiently maneuver himself or his quarry
into a position from which the desired objective may be
attained." [n23] When normal procedures fail to produce the needed result,
the police may resort to deceptive stratagems such as giving false legal
advice. It is important to keep the subject off balance, for example, by
trading on his insecurity about himself or his surroundings. The police then
persuade, trick, or cajole him out of exercising his constitutional rights.
Even without employing brutality, the "third degree" or the specific
stratagems described above, the very fact of custodial interrogation exacts a
heavy toll on individual liberty, and trades on the weakness of
individuals. [n24] [p456] This fact may be illustrated simply by referring to
three confession cases decided by this Court in the Term immediately
preceding our Escobedo decision. In Townsend v. Sain,372 U.S. 293 (1963),
the defendant was a 19-year-old heroin addict, described as a "near mental
defective," id. at 307-310. The defendant in Lynumn v. Illinois, 372 U.S.
528 (1963), was a woman who confessed to the arresting officer after being
importuned to "cooperate" in order to prevent her children from being taken
by relief authorities. This Court, as in those cases, reversed the conviction of
a defendant in Haynes v. Washington, 373 U.S. 503 (1963), whose persistent
request during his interrogation was to phone his wife or attorney. [n25] In
other settings, these individuals might have exercised their constitutional
rights. In the incommunicado police-dominated atmosphere, they
succumbed.
19

In the cases before us today, given this background, we concern ourselves

primarily with this interrogation atmosphere and the evils it can bring. In No.
759, Miranda v. Arizona, the police arrested the defendant and took him to a
special interrogation room, where they secured a confession. In No.
760, Vignera v. New York, the defendant made oral admissions to the police
after interrogation in the afternoon, and then signed an inculpatory statement
upon being questioned by an assistant district attorney later the same
evening. In No. 761, Westover v. United States, the defendant was handed
over to the Federal Bureau of Investigation by [p457] local authorities after
they had detained and interrogated him for a lengthy period, both at night
and the following morning. After some two hours of questioning, the federal
officers had obtained signed statements from the defendant. Lastly, in No.
584, California v. Stewart, the local police held the defendant five days in the
station and interrogated him on nine separate occasions before they secured
his inculpatory statement.
In these cases, we might not find the defendants' statements to have been
involuntary in traditional terms. Our concern for adequate safeguards to
protect precious Fifth Amendment rights is, of course, not lessened in the
slightest. In each of the cases, the defendant was thrust into an unfamiliar
atmosphere and run through menacing police interrogation procedures. The
potentiality for compulsion is forcefully apparent, for example,
in Miranda, where the indigent Mexican defendant was a seriously disturbed
individual with pronounced sexual fantasies, and in Stewart, in which the
defendant was an indigent Los Angeles Negro who had dropped out of
school in the sixth grade. To be sure, the records do not evince overt physical
coercion or patent psychological ploys. The fact remains that in none of
these cases did the officers undertake to afford appropriate safeguards at the
outset of the interrogation to insure that the statements were truly the product
of free choice.
It is obvious that such an interrogation environment is created for no purpose
other than to subjugate the individual to the will of his examiner. This
atmosphere carries its own badge of intimidation. To be sure, this is not
physical intimidation, but it is equally destructive of human
dignity. [n26] The current practice of incommunicado interrogation is at
odds with one of our [p458] Nation's most cherished principles -- that the
individual may not be compelled to incriminate himself. Unless adequate
protective devices are employed to dispel the compulsion inherent in
custodial surroundings, no statement obtained from the defendant can truly
be the product of his free choice.
From the foregoing, we can readily perceive an intimate connection between
the privilege against self-incrimination and police custodial questioning. It is
fitting to turn to history and precedent underlying the Self-Incrimination
Clause to determine its applicability in this situation.
II
We sometimes forget how long it has taken to establish the privilege against
self-incrimination, the sources from which it came, and the fervor with
which it was defended. Its roots go back into ancient
times. [n27] Perhaps [p459] the critical historical event shedding light on its
origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart

Leveller, who was made to take the Star Chamber Oath in 1637. The oath
would have bound him to answer to all questions posed to him on any
subject. The Trial of John Lilburn and John Wharton, 3 How.St.Tr. 1315
(1637). He resisted the oath and declaimed the proceedings, stating:
Another fundamental right I then contended for was that no man's
conscience ought to be racked by oaths imposed to answer to questions
concerning himself in matters criminal, or pretended to be so.
Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944)
On account of the Lilburn Trial, Parliament abolished the inquisitorial Court
of Star Chamber and went further in giving him generous reparation. The
lofty principles to which Lilburn had appealed during his trial gained popular
acceptance in England. [n28] These sentiments worked their way over to the
Colonies, and were implanted after great struggle into the Bill of
Rights. [n29] Those who framed our Constitution and the Bill of Rights were
ever aware of subtle encroachments on individual liberty. They knew that
illegitimate and unconstitutional practices get their first footing . . . by silent
approaches and slight deviations from legal modes of procedure.
Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was elevated
to constitutional status, and has always been "as broad as the
mischief [p460] against which it seeks to guard." Counselman v.
Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble
heritage.
Thus, we may view the historical development of the privilege as one which
groped for the proper scope of governmental power over the citizen. As a
"noble principle often transcends its origins," the privilege has come
rightfully to be recognized in part as an individual's substantive right, a
"right to a private enclave where he may lead a private life. That right is the
hallmark of our democracy." United States v. Grunewald, 233 F.2d 556, 579,
581-582 (Frank, J., dissenting), rev'd, 353 U.S. 391 (1957). We have recently
noted that the privilege against self-incrimination -- the essential mainstay of
our adversary system -- is founded on a complex of values, Murphy v.
Waterfront Comm'n, 378 U.S. 52, 55-57, n. 5 (1964); Tehan v. Shott, 382
U.S. 406, 414-415, n. 12 (1966). All these policies point to one overriding
thought: the constitutional foundation underlying the privilege is the respect
a government -- state or federal -- must accord to the dignity and integrity of
its citizens. To maintain a "fair state-individual balance," to require the
government "to shoulder the entire load," 8 Wigmore, Evidence 317
(McNaughton rev.1961), to respect the inviolability of the human
personality, our accusatory system of criminal justice demands that the
government seeking to punish an individual produce the evidence against
him by its own independent labors, rather than by the cruel, simple expedient
of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227,
235-238 (1940). In sum, the privilege is fulfilled only when the person is
guaranteed the right "to remain silent unless he chooses to speak in the
unfettered exercise of his own will." Malloy v. Hogan, 378 U.S. 1, 8 (1964).
The question in these cases is whether the privilege is fully applicable during
a period of custodial interrogation. [p461] In this Court, the privilege has

consistently been accorded a liberal construction. Albertson v. SACB, 382

U.S. 70, 81 (1965); Hoffman v. United States, 341 U.S. 479, 486
(1951); Arndstein v. McCarthy, 254 U.S. 71, 72-73 (1920); Counselman v.
Hitchock, 142 U.S. 547, 562 (1892). We are satisfied that all the principles
embodied in the privilege apply to informal compulsion exerted by law
enforcement officers during in-custody questioning. An individual swept
from familiar surroundings into police custody, surrounded by antagonistic
forces, and subjected to the techniques of persuasion described above cannot
be otherwise than under compulsion to speak. As a practical matter, the
compulsion to speak in the isolated setting of the police station may well be
greater than in courts or other official investigations, where there are often
impartial observers to guard against intimidation or trickery. [n30]
This question, in fact, could have been taken as settled in federal courts
almost 70 years ago, when, in Bram v. United States, 168 U.S. 532, 542
(1897), this Court held:
In criminal trials, in the courts of the United States, wherever a question
arises whether a confession is incompetent because not voluntary, the issue is
controlled by that portion of the Fifth Amendment . . . commanding that no
person "shall be compelled in any criminal case to be a witness against
himself."
In Bram, the Court reviewed the British and American history and case law
and set down the Fifth Amendment standard for compulsion which we
implement today:
Much of the confusion which has resulted from the effort to deduce from the
adjudged cases what [p462] would be a sufficient quantum of proof to show
that a confession was or was not voluntary, has arisen from a misconception
of the subject to which the proof must address itself. The rule is not that, in
order to render a statement admissible, the proof must be adequate to
establish that the particular communications contained in a statement were
voluntarily made, but it must be sufficient to establish that the making of the
statement was voluntary; that is to say, that from the causes, which the law
treats as legally sufficient to engender in the mind of the accused hope or
fear in respect to the crime charged, the accused was not involuntarily
impelled to make a statement, when, but for the improper influences, he
would have remained silent. . . .
168 U.S. at 549. And see id. at 542.
The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote
for a unanimous Court in reversing a conviction resting on a compelled
confession, Wan v. United States, 266 U.S. 1. He stated:
In the federal courts, the requisite of voluntariness is not satisfied by
establishing merely that the confession was not induced by a promise or a
threat. A confession is voluntary in law if, and only if, it was, in fact,
voluntarily made. A confession may have been given voluntarily, although it
was made to police officers, while in custody, and in answer to an
examination conducted by them. But a confession obtained by compulsion
must be excluded whatever may have been the character of the compulsion,
20

and whether the compulsion was applied in a judicial proceeding or

otherwise. Bram v. United States, 168 U.S. 532.

his rights; the compelling atmosphere of the in-custody interrogation, and

not an independent decision on his part, caused the defendant to speak.

266 U.S. at 14-15. In addition to the expansive historical development of the

privilege and the sound policies which have nurtured [p463] its evolution,
judicial precedent thus clearly establishes its application to incommunicado
interrogation. In fact, the Government concedes this point as well established
in No. 761, Westover v. United States, stating:

A different phase of the Escobedo decision was significant in its attention to

the absence of counsel during the questioning. There, as in the cases today,
we sought a protective device to dispel the compelling atmosphere of the
interrogation. In Escobedo, however, the police did not relieve the defendant
of the anxieties which they had created in the interrogation rooms. Rather,
they denied his request for the assistance of counsel, 378 U.S. at 481, 488,
491. [n35] This heightened his dilemma, and [p466] made his later
statements the product of this compulsion. Cf. Haynes v. Washington, 373
U.S. 503, 514 (1963). The denial of the defendant's request for his attorney
thus undermined his ability to exercise the privilege -- to remain silent if he
chose or to speak without any intimidation, blatant or subtle. The presence of
counsel, in all the cases before us today, would he the adequate protective
device necessary to make the process of police interrogation conform to the
dictates of the privilege. His presence would insure that statements made in
the government-established atmosphere are not the product of compulsion.

We have no doubt . . . that it is possible for a suspect's Fifth Amendment

right to be violated during in-custody questioning by a law enforcement
officer. [n31]
Because of the adoption by Congress of Rule 5(a) of the Federal Rules of
Criminal Procedure, and this Court's effectuation of that Rule in McNabb v.
United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S.
449 (1957), we have had little occasion in the past quarter century to reach
the constitutional issues in dealing with federal interrogations. These
supervisory rules, requiring production of an arrested person before a
commissioner "without unnecessary delay" and excluding evidence obtained
in default of that statutory obligation, were nonetheless responsive to the
same considerations of Fifth Amendment policy that unavoidably face us
now as to the States. In McNabb, 318 U.S. at 343-344, and in Mallory, 354
U.S. at 455-456, we recognized both the dangers of interrogation and the
appropriateness of prophylaxis stemming from the very fact of interrogation
itself. [n32]
Our decision in Malloy v. Hogan, 378 U.S. 1 (1964), necessitates an
examination of the scope of the privilege in state cases as well.
In Malloy, we squarely held the [p464] privilege applicable to the States, and
held that the substantive standards underlying the privilege applied with full
force to state court proceedings. There, as in Murphy v. Waterfront
Comm'n, 378 U.S. 52 (1964), and Griffin v. California, 380 U.S. 609 (1965),
we applied the existing Fifth Amendment standards to the case before us.
Aside from the holding itself, the reasoning in Malloy made clear what had
already become apparent -- that the substantive and procedural safeguards
surrounding admissibility of confessions in state cases had become
exceedingly exacting, reflecting all the policies embedded in the privilege,
378 U.S. at 7-8. [n33] The voluntariness doctrine in the state cases,
as Malloy indicates, encompasses all interrogation practices which are likely
to exert such pressure upon an individual as to disable him
from [p465] making a free and rational choice. [n34] The implications of
this proposition were elaborated in our decision in Escobedo v. Illinois, 378
U.S. 478, decided one week after Malloy applied the privilege to the States.
Our holding there stressed the fact that the police had not advised the
defendant of his constitutional privilege to remain silent at the outset of the
interrogation, and we drew attention to that fact at several points in the
decision, 378 U.S. at 483, 485, 491. This was no isolated factor, but an
essential ingredient in our decision. The entire thrust of police interrogation
there, as in all the cases today, was to put the defendant in such an emotional
state as to impair his capacity for rational judgment. The abdication of the
constitutional privilege -- the choice on his part to speak to the police -- was
not made knowingly or competently because of the failure to apprise him of

It was in this manner that Escobedo explicated another facet of the pretrial
privilege, noted in many of the Court's prior decisions: the protection of
rights at trial. [n36] That counsel is present when statements are taken from
an individual during interrogation obviously enhances the integrity of the
factfinding processes in court. The presence of an attorney, and the warnings
delivered to the individual, enable the defendant under otherwise compelling
circumstances to tell his story without fear, effectively, and in a way that
eliminates the evils in the interrogation process. Without the protections
flowing from adequate warnings and the rights of counsel,
all the careful safeguards erected around the giving of testimony, whether by
an accused or any other witness, would become empty formalities in a
procedure where the most compelling possible evidence of guilt, a
confession, would have already been obtained at the unsupervised pleasure
of the police.
Mapp v. Ohio, 367 U.S. 643, 685 (1961) (HARLAN, J., dissenting). Cf.
Pointer v. Texas, 380 U.S. 400 (1965). [p467]
III
Today, then, there can be no doubt that the Fifth Amendment privilege is
available outside of criminal court proceedings, and serves to protect persons
in all settings in which their freedom of action is curtailed in any significant
way from being compelled to incriminate themselves. We have concluded
that, without proper safeguards, the process of in-custody interrogation of
persons suspected or accused of crime contains inherently compelling
pressures which work to undermine the individual's will to resist and to
compel him to speak where he would not otherwise do so freely. In order to
combat these pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be adequately and
effectively apprised of his rights, and the exercise of those rights must be
fully honored.

It is impossible for us to foresee the potential alternatives for protecting the

privilege which might be devised by Congress or the States in the exercise of
their creative rulemaking capacities. Therefore, we cannot say that the
Constitution necessarily requires adherence to any particular solution for the
inherent compulsions of the interrogation process as it is presently
conducted. Our decision in no way creates a constitutional straitjacket which
will handicap sound efforts at reform, nor is it intended to have this effect.
We encourage Congress and the States to continue their laudable search for
increasingly effective ways of protecting the rights of the individual while
promoting efficient enforcement of our criminal laws. However, unless we
are shown other procedures which are at least as effective in apprising
accused persons of their right of silence and in assuring a continuous
opportunity to exercise it, the following safeguards must be observed.
At the outset, if a person in custody is to be subjected to interrogation, he
must first be informed in clear and [p468] unequivocal terms that he has the
right to remain silent. For those unaware of the privilege, the warning is
needed simply to make them aware of it -- the threshold requirement for an
intelligent decision as to its exercise. More important, such a warning is an
absolute prerequisite in overcoming the inherent pressures of the
interrogation atmosphere. It is not just the subnormal or woefully ignorant
who succumb to an interrogator's imprecations, whether implied or expressly
stated, that the interrogation will continue until a confession is obtained or
that silence in the face of accusation is itself damning, and will bode ill when
presented to a jury. [n37] Further, the warning will show the individual that
his interrogators are prepared to recognize his privilege should he choose to
exercise it.
The Fifth Amendment privilege is so fundamental to our system of
constitutional rule, and the expedient of giving an adequate warning as to the
availability of the privilege so simple, we will not pause to inquire in
individual cases whether the defendant was aware of his rights without a
warning being given. Assessments of the knowledge the defendant
possessed, based on information [p469] as to his age, education, intelligence,
or prior contact with authorities, can never be more than speculation; [n38] a
warning is a clear-cut fact. More important, whatever the background of the
person interrogated, a warning at the time of the interrogation is
indispensable to overcome its pressures and to insure that the individual
knows he is free to exercise the privilege at that point in time.
The warning of the right to remain silent must be accompanied by the
explanation that anything said can and will be used against the individual in
court. This warning is needed in order to make him aware not only of the
privilege, but also of the consequences of forgoing it. It is only through an
awareness of these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege. Moreover, this
warning may serve to make the individual more acutely aware that he is
faced with a phase of the adversary system -- that he is not in the presence of
persons acting solely in his interest.
The circumstances surrounding in-custody interrogation can operate very
quickly to overbear the will of one merely made aware of his privilege by his
interrogators. Therefore, the right to have counsel present at the interrogation
21

is indispensable to the protection of the Fifth Amendment privilege under the

system we delineate today. Our aim is to assure that the individual's right to
choose between silence and speech remains unfettered throughout the
interrogation process. A once-stated warning, delivered by those who will
conduct the interrogation, cannot itself suffice to that end among those who
most require knowledge of their rights. A mere [p470] warning given by the
interrogators is not alone sufficient to accomplish that end. Prosecutors
themselves claim that the admonishment of the right to remain silent,
without more, "will benefit only the recidivist and the professional." Brief
for the National District Attorneys Association as amicus curiae, p. 14. Even
preliminary advice given to the accused by his own attorney can be swiftly
overcome by the secret interrogation process. Cf. Escobedo v. Illinois, 378
U.S. 478, 485, n. 5. Thus, the need for counsel to protect the Fifth
Amendment privilege comprehends not merely a right to consult with
counsel prior to questioning, but also to have counsel present during any
questioning if the defendant so desires.
The presence of counsel at the interrogation may serve several significant
subsidiary functions, as well. If the accused decides to talk to his
interrogators, the assistance of counsel can mitigate the dangers of
untrustworthiness. With a lawyer present, the likelihood that the police will
practice coercion is reduced, and, if coercion is nevertheless exercised, the
lawyer can testify to it in court. The presence of a lawyer can also help to
guarantee that the accused gives a fully accurate statement to the police, and
that the statement is rightly reported by the prosecution at trial. See Crooker
v. California, 357 U.S. 433, 443-448 (1958) (DOUGLAS, J., dissenting).
An individual need not make a pre-interrogation request for a lawyer. While
such request affirmatively secures his right to have one, his failure to ask for
a lawyer does not constitute a waiver. No effective waiver of the right to
counsel during interrogation can be recognized unless specifically made after
the warnings we here delineate have been given. The accused who does not
know his rights and therefore does not make a request [p471] may be the
person who most needs counsel. As the California Supreme Court has aptly
put it:
Finally, we must recognize that the imposition of the requirement for the
request would discriminate against the defendant who does not know his
rights. The defendant who does not ask for counsel is the very defendant
who most needs counsel. We cannot penalize a defendant who, not
understanding his constitutional rights, does not make the formal request,
and, by such failure, demonstrates his helplessness. To require the request
would be to favor the defendant whose sophistication or status had
fortuitously prompted him to make it.
People v. Dorado, 62 Cal.2d 338, 351, 398 P.2d 361, 369-370, 42 Cal.Rptr.
169, 177-178 (1965) (Tobriner, J.). In Carnley v. Cochran,369 U.S. 506, 513
(1962), we stated:
[I]t is settled that, where the assistance of counsel is a constitutional
requisite, the right to be furnished counsel does not depend on a request.
This proposition applies with equal force in the context of providing counsel
to protect an accused's Fifth Amendment privilege in the face of

interrogation. [n39] Although the role of counsel at trial differs from the role
during interrogation, the differences are not relevant to the question whether
a request is a prerequisite.
Accordingly, we hold that an individual held for interrogation must be
clearly informed that he has the right to consult with a lawyer and to have
the lawyer with him during interrogation under the system for protecting the
privilege we delineate today. As with the warnings of the right to remain
silent and that anything stated can be used in evidence against him, this
warning is an absolute prerequisite to interrogation. No amount
of [p472] circumstantial evidence that the person may have been aware of
this right will suffice to stand in its stead. Only through such a warning is
there ascertainable assurance that the accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any
interrogation occurs, the authorities cannot rationally ignore or deny his
request on the basis that the individual does not have or cannot afford a
retained attorney. The financial ability of the individual has no relationship
to the scope of the rights involved here. The privilege against selfincrimination secured by the Constitution applies to all individuals. The need
for counsel in order to protect the privilege exists for the indigent as well as
the affluent. In fact, were we to limit these constitutional rights to those who
can retain an attorney, our decisions today would be of little significance.
The cases before us, as well as the vast majority of confession cases with
which we have dealt in the past, involve those unable to retain counsel.
[n40] While authorities are not required to relieve the accused of his poverty,
they have the obligation not to take advantage of indigence in the
administration of justice. [n41] Denial [p473] of counsel to the indigent at
the time of interrogation while allowing an attorney to those who can afford
one would be no more supportable by reason or logic than the similar
situation at trial and on appeal struck down in Gideon v. Wainwright, 372
U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963).
In order fully to apprise a person interrogated of the extent of his rights
under this system, then, it is necessary to warn him not only that he has the
right to consult with an attorney, but also that, if he is indigent, a lawyer will
be appointed to represent him. Without this additional warning, the
admonition of the right to consult with counsel would often be understood as
meaning only that he can consult with a lawyer if he has one or has the funds
to obtain one. The warning of a right to counsel would be hollow if not
couched in terms that would convey to the indigent -- the person most often
subjected to interrogation -- the knowledge that he too has a right to have
counsel present. [n42] As with the warnings of the right to remain silent and
of the general right to counsel, only by effective and express explanation to
the indigent of this right can there be assurance that he was truly in a
position to exercise it. [n43]
Once warnings have been given, the subsequent procedure is clear. If the
individual indicates in any manner, [p474] at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must
cease. [n44] At this point, he has shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion, subtle or

otherwise. Without the right to cut off questioning, the setting of in-custody
interrogation operates on the individual to overcome free choice in
producing a statement after the privilege has been once invoked. If the
individual states that he wants an attorney, the interrogation must cease until
an attorney is present. At that time, the individual must have an opportunity
to confer with the attorney and to have him present during any subsequent
questioning. If the individual cannot obtain an attorney and he indicates that
he wants one before speaking to police, they must respect his decision to
remain silent.
This does not mean, as some have suggested, that each police station must
have a "station house lawyer" present at all times to advise prisoners. It does
mean, however, that, if police propose to interrogate a person, they must
make known to him that he is entitled to a lawyer and that, if he cannot
afford one, a lawyer will be provided for him prior to any interrogation. If
authorities conclude that they will not provide counsel during a reasonable
period of time in which investigation in the field is carried out, they may
refrain from doing so without violating the person's Fifth Amendment
privilege so long as they do not question him during that time. [p475]
If the interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to demonstrate
that the defendant knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed counsel. Escobedo v.
Illinois, 378 U.S. 478, 490, n. 14. This Court has always set high standards
of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S.
458 (1938), and we reassert these standards as applied to in-custody
interrogation. Since the State is responsible for establishing the isolated
circumstances under which the interrogation takes place, and has the only
means of making available corroborated evidence of warnings given during
incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and
does not want an attorney, followed closely by a statement, could constitute a
waiver. But a valid waiver will not be presumed simply from the silence of
the accused after warnings are given, or simply from the fact that a
confession was, in fact, eventually obtained. A statement we made in Carnley
v. Cochran, 369 U.S. 506, 516 (1962), is applicable here:
Presuming waiver from a silent record is impermissible. The record must
show, or there must be an allegation and evidence which show, that an
accused was offered counsel but intelligently and understandingly rejected
the offer. Anything less is not waiver.
See also Glasser v. United States, 315 U.S. 60 (1942). Moreover, where incustody interrogation is involved, there is no room for the contention that the
privilege is waived if the individual answers some questions or
gives [p476] some information on his own prior to invoking his right to
remain silent when interrogated. [n45]
Whatever the testimony of the authorities as to waiver of rights by an
accused, the fact of lengthy interrogation or incommunicado incarceration
before a statement is made is strong evidence that the accused did not validly
waive his rights. In these circumstances, the fact that the individual
22

eventually made a statement is consistent with the conclusion that the

compelling influence of the interrogation finally forced him to do so. It is
inconsistent with any notion of a voluntary relinquishment of the privilege.
Moreover, any evidence that the accused was threatened, tricked, or cajoled
into a waiver will, of course, show that the defendant did not voluntarily
waive his privilege. The requirement of warnings and waiver of rights is a
fundamental with respect to the Fifth Amendment privilege, and not simply a
preliminary ritual to existing methods of interrogation.
The warnings required and the waiver necessary in accordance with our
opinion today are, in the absence of a fully effective equivalent, prerequisites
to the admissibility of any statement made by a defendant. No distinction can
be drawn between statements which are direct confessions and statements
which amount to "admissions" of part or all of an offense. The privilege
against self-incrimination protects the individual from being compelled to
incriminate himself in any manner; it does not distinguish degrees of
incrimination. Similarly, [p477] for precisely the same reason, no distinction
may be drawn between inculpatory statements and statements alleged to be
merely "exculpatory." If a statement made were, in fact, truly exculpatory, it
would, of course, never be used by the prosecution. In fact, statements
merely intended to be exculpatory by the defendant are often used to
impeach his testimony at trial or to demonstrate untruths in the statement
given under interrogation, and thus to prove guilt by implication. These
statements are incriminating in any meaningful sense of the word, and may
not be used without the full warnings and effective waiver required for any
other statement. In Escobedo itself, the defendant fully intended his
accusation of another as the slayer to be exculpatory as to himself.
The principles announced today deal with the protection which must be
given to the privilege against self-incrimination when the individual is first
subjected to police interrogation while in custody at the station or otherwise
deprived of his freedom of action in any significant way. It is at this point
that our adversary system of criminal proceedings commences,
distinguishing itself at the outset from the inquisitorial system recognized in
some countries. Under the system of warnings we delineate today, or under
any other system which may be devised and found effective, the safeguards
to be erected about the privilege must come into play at this point.
Our decision is not intended to hamper the traditional function of police
officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492.
When an individual is in custody on probable cause, the police may, of
course, seek out evidence in the field to be used at trial against him. Such
investigation may include inquiry of persons not under restraint. General onthe-scene questioning as to facts surrounding a crime or other general
questioning of citizens in the factfinding process is not affected by our
holding. It is an act of [p478] responsible citizenship for individuals to give
whatever information they may have to aid in law enforcement. In such
situations, the compelling atmosphere inherent in the process of in-custody
interrogation is not necessarily present. [n46]
In dealing with statements obtained through interrogation, we do not purport
to find all confessions inadmissible. Confessions remain a proper element in
law enforcement. Any statement given freely and voluntarily without any

compelling influences is, of course, admissible in evidence. The fundamental

import of the privilege while an individual is in custody is not whether he is
allowed to talk to the police without the benefit of warnings and counsel, but
whether he can be interrogated. There is no requirement that police stop a
person who enters a police station and states that he wishes to confess to a
crime, [n47] or a person who calls the police to offer a confession or any
other statement he desires to make. Volunteered statements of any kind are
not barred by the Fifth Amendment, and their admissibility is not affected by
our holding today.
To summarize, we hold that, when an individual is taken into custody or
otherwise deprived of his freedom by the authorities in any significant way
and is subjected to questioning, the privilege against self-incrimination is
jeopardized. Procedural safeguards must be employed to [p479] protect the
privilege, and unless other fully effective means are adopted to notify the
person of his right of silence and to assure that the exercise of the right will
be scrupulously honored, the following measures are required. He must be
warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that, if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him throughout the
interrogation. After such warnings have been given, and such opportunity
afforded him, the individual may knowingly and intelligently waive these
rights and agree to answer questions or make a statement. But unless and
until such warnings and waiver are demonstrated by the prosecution at trial,
no evidence obtained as a result of interrogation can be used against
him. [n48]
IV
A recurrent argument made in these cases is that society's need for
interrogation outweighs the privilege. This argument is not unfamiliar to this
Court. See, e.g., Chambers v. Florida, 309 U.S. 227, 240-241 (1940). The
whole thrust of our foregoing discussion demonstrates that the Constitution
has prescribed the rights of the individual when confronted with the power
of government when it provided in the Fifth Amendment that an individual
cannot be compelled to be a witness against himself. That right cannot be
abridged. As Mr. Justice Brandeis once observed:
Decency, security and liberty alike demand that government officials shall be
subjected to the same [p480] rules of conduct that are commands to the
citizen. In a government of laws, existence of the government will be
imperilled if it fail to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the whole
people by its example. Crime is contagious. If the Government becomes a
lawbreaker, 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 . . . would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely set its face.
Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting
opinion). [n49] In this connection, one of our country's distinguished jurists
has pointed out: "The quality of a nation's civilization can be largely

measured by the methods it uses in the enforcement of its criminal

law." [n50]
If the individual desires to exercise his privilege, he has the right to do so.
This is not for the authorities to decide. An attorney may advise his client not
to talk to police until he has had an opportunity to investigate the case, or he
may wish to be present with his client during any police questioning. In
doing so an attorney is merely exercising the good professional judgment he
has been taught. This is not cause for considering the attorney a menace to
law enforcement. He is merely carrying out what he is sworn to do under his
oath -- to protect to the extent of his ability the rights of his client. [p481] In
fulfilling this responsibility, the attorney plays a vital role in the
administration of criminal justice under our Constitution.
In announcing these principles, we are not unmindful of the burdens which
law enforcement officials must bear, often under trying circumstances. We
also fully recognize the obligation of all citizens to aid in enforcing the
criminal laws. This Court, while protecting individual rights, has always
given ample latitude to law enforcement agencies in the legitimate exercise
of their duties. The limits we have placed on the interrogation process should
not constitute an undue interference with a proper system of law
enforcement. As we have noted, our decision does not in any way preclude
police from carrying out their traditional investigatory functions. Although
confessions may play an important role in some convictions, the cases before
us present graphic examples of the overstatement of the "need" for
confessions. In each case, authorities conducted interrogations ranging up to
five days in duration despite the presence, through standard investigating
practices, of considerable evidence against each defendant. [n51] Further
examples are chronicled in our prior cases. See, e.g., Haynes v.
Washington, 373 U.S. 503, 518-519 (1963); Rogers v. Richmond, 365 U.S.
534, 541 (1961); Malinski v. New York, 324 U.S. 401,402
(1945). [n52] [p482]
It is also urged that an unfettered right to detention for interrogation should
be allowed because it will often redound to the benefit of the person
questioned. When police inquiry determines that there is no reason to believe
that the person has committed any crime, it is said, he will be released
without need for further formal procedures. The person who has committed
no offense, however, will be better able to clear himself after warnings with
counsel present than without. It can be assumed that, in such circumstances,
a lawyer would advise his client to talk freely to police in order to clear
himself.
Custodial interrogation, by contrast, does not necessarily afford the innocent
an opportunity to clear themselves. A serious consequence of the present
practice of the interrogation alleged to be beneficial for the innocent is that
many arrests "for investigation" subject large numbers of innocent persons to
detention and interrogation. In one of the cases before us, No.
584, California v. Stewart, police held four persons, who were in the
defendant's house at the time of the arrest, in jail for five days until
defendant confessed. At that time, they were finally released. Police stated
that there was "no evidence to connect them with any crime." Available
statistics on the extent of this practice where it is condoned indicate that
23

these four are far from alone in being subjected to arrest, prolonged
detention,
and
interrogation
without
the
requisite
probable
cause. [n53] [p483]
Over the years, the Federal Bureau of Investigation has compiled an
exemplary record of effective law enforcement while advising any suspect or
arrested person, at the outset of an interview, that he is not required to make
a statement, that any statement may be used against him in court, that the
individual may obtain the services of an attorney of his own choice, and,
more recently, that he has a right to free counsel if he is unable to
pay. [n54] A letter received from the Solicitor General in response to a
question from the Bench makes it clear that the present pattern of warnings
and respect for the [p484] rights of the individual followed as a practice by
the FBI is consistent with the procedure which we delineate today. It states:
At the oral argument of the above cause, Mr. Justice Fortas asked whether I
could provide certain information as to the practices followed by the Federal
Bureau of Investigation. I have directed these questions to the attention of
the Director of the Federal Bureau of Investigation, and am submitting
herewith a statement of the questions and of the answers which we have
received.
(1) When an individual is interviewed by agents of the Bureau, what warning
is given to him?
The standard warning long given by Special Agents of the FBI to both
suspects and persons under arrest is that the person has a right to say nothing
and a right to counsel, and that any statement he does make may be used
against him in court. Examples of this warning are to be found in
the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., 337 F.2d 136
(1964), cert. den., 380 U.S. 935.
After passage of the Criminal Justice Act of 1964, which provides free
counsel for Federal defendants unable to pay, we added to our instructions to
Special Agents the requirement that any person who is under arrest for an
offense under FBI jurisdiction, or whose arrest is contemplated following the
interview, must also be advised of his right to free counsel if he is unable to
pay, and the fact that such counsel will be assigned by the Judge. At the same
time, we broadened the right to counsel warning [p485] to read counsel of
his own choice, or anyone else with whom he might wish to speak.
(2) When is the warning given?
The FBI warning is given to a suspect at the very outset of the interview, as
shown in the Westover case, cited above. The warning may be given to a
person arrested as soon as practicable after the arrest, as shown in
the Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844
(1964), cert. den., 379 U.S. 933, but, in any event, it must precede the
interview with the person for a confession or admission of his own guilt.
(3) What is the Bureau's practice in the event that (a) the individual requests
counsel and (b) counsel appears?
When the person who has been warned of his right to counsel decides that he
wishes to consult with counsel before making a statement, the interview is

terminated at that point, Shultz v. U.S., 351 F.2d 287 (1965). It may be
continued, however, as to all matters other than the person's own guilt or
innocence. If he is indecisive in his request for counsel, there may be some
question on whether he did or did not waive counsel. Situations of this kind
must necessarily be left to the judgment of the interviewing Agent. For
example, in Hiram v. U.S., 354 F.2d 4 (1965), the Agent's conclusion that the
person arrested had waived his right to counsel was upheld by the courts.

result from warning an individual of his rights or allowing him to exercise

them. Moreover, it is consistent with our legal system that we give at least as
much protection to these rights as is given in the jurisdictions described. We
deal in our country with rights grounded in a specific requirement of the
Fifth Amendment of the Constitution, [p490] whereas other jurisdictions
arrived at their conclusions on the basis of principles of justice not so
specifically defined. [n64]

A person being interviewed and desiring to consult counsel by telephone

must be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459
(1965). When counsel appears in person, he is permitted to confer with his
client in private. [p486]

It is also urged upon us that we withhold decision on this issue until state
legislative bodies and advisory groups have had an opportunity to deal with
these problems by rulemaking. [n65] We have already pointed out that the
Constitution does not require any specific code of procedures for protecting
the privilege against self-incrimination during custodial interrogation.
Congress and the States are free to develop their own safeguards for the
privilege, so long as they are fully as effective as those described above in
informing accused persons of their right of silence and in affording a
continuous opportunity to exercise it. In any event, however, the issues
presented are of constitutional dimensions, and must be determined by the
courts. The admissibility of a statement in the face of a claim that it was
obtained in violation of the defendant's constitutional rights is an issue the
resolution of which has long since been undertaken by this Court. See Hopt
v. Utah, 110 U.S. 574 (1884). Judicial solutions to problems of constitutional
dimension have evolved decade by decade. As courts have been presented
with the need to enforce constitutional rights, they have found means of
doing so. That was our responsibility when Escobedo was before us, and it is
our [p491] responsibility today. Where rights secured by the Constitution are
involved, there can be no rulemaking or legislation which would abrogate
them.

(4) What is the Bureau's practice if the individual requests counsel, but
cannot afford to retain an attorney?
If any person being interviewed after warning of counsel decides that he
wishes to consult with counsel before proceeding, further the interview is
terminated, as shown above. FBI Agents do not pass judgment on the ability
of the person to pay for counsel. They do, however, advise those who have
been arrested for an offense under FBI jurisdiction, or whose arrest is
contemplated following the interview, of a right to free counsel if they are
unable to pay, and the availability of such counsel from the Judge. [n55]
The practice of the FBI can readily be emulated by state and local
enforcement agencies. The argument that the FBI deals with different crimes
than are dealt with by state authorities does not mitigate the significance of
the FBI experience. [n56]
The experience in some other countries also suggests that the danger to law
enforcement in curbs on interrogation is overplayed. The English procedure,
since 1912 under the Judges' Rules, is significant. As
recently [p487] strengthened, the Rules require that a cautionary warning be
given an accused by a police officer as soon as he has evidence that affords
reasonable grounds for suspicion; they also require that any statement made
be given by the accused without questioning by police. [n57] [p488] The
right of the individual to consult with an attorney during this period is
expressly recognized. [n58]
The safeguards present under Scottish law may be even greater than in
England. Scottish judicial decisions bar use in evidence of most confessions
obtained through police interrogation. [n59] In India, confessions made to
police not in the presence of a magistrate have been excluded [p489] by rule
of evidence since 1872, at a time when it operated under British
law. [n60] Identical provisions appear in the Evidence Ordinance of Ceylon,
enacted in 1895. [n61] Similarly, in our country, the Uniform Code of
Military Justice has long provided that no suspect may be interrogated
without first being warned of his right not to make a statement, and that any
statement he makes may be used against him. [n62] Denial of the right to
consult counsel during interrogation has also been proscribed by military
tribunals.[n63] There appears to have been no marked detrimental effect on
criminal law enforcement in these jurisdictions as a result of these rules.
Conditions of law enforcement in our country are sufficiently similar to
permit reference to this experience as assurance that lawlessness will not

V
Because of the nature of the problem and because of its recurrent
significance in numerous cases, we have to this point discussed the
relationship of the Fifth Amendment privilege to police interrogation without
specific concentration on the facts of the cases before us. We turn now to
these facts to consider the application to these cases of the constitutional
principles discussed above. In each instance, we have concluded that
statements were obtained from the defendant under circumstances that did
not meet constitutional standards for protection of the privilege.
No. 759. Miranda v. Arizona
On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home
and taken in custody to a Phoenix police station. He was there identified by
the complaining witness. The police then took him to "Interrogation Room
No. 2" of the detective bureau. There he was questioned by two police
officers. The officers admitted at trial that Miranda was not advised that he
had a right to have an attorney present. [n66] Two hours later,
the [p492] officers emerged from the interrogation room with a written
confession signed by Miranda. At the top of the statement was a typed
paragraph stating that the confession was made voluntarily, without threats
or promises of immunity and "with full knowledge of my legal rights,
understanding any statement I make may be used against me." [n67]
24

At his trial before a jury, the written confession was admitted into evidence
over the objection of defense counsel, and the officers testified to the prior
oral confession made by Miranda during the interrogation. Miranda was
found guilty of kidnapping and rape. He was sentenced to 20 to 30 years'
imprisonment on each count, the sentences to run concurrently. On appeal,
the Supreme Court of Arizona held that Miranda's constitutional rights were
not violated in obtaining the confession, and affirmed the conviction. 98
Ariz. 18, 401 P.2d 721. In reaching its decision, the court emphasized
heavily the fact that Miranda did not specifically request counsel.
We reverse. From the testimony of the officers and by the admission of
respondent, it is clear that Miranda was not in any way apprised of his right
to consult with an attorney and to have one present during the interrogation,
nor was his right not to be compelled to incriminate himself effectively
protected in any other manner. Without these warnings, the statements were
inadmissible. The mere fact that he signed a statement which contained a
typed-in clause stating that he had "full knowledge" of his "legal rights" does
not approach the knowing and intelligent waiver required to relinquish
constitutional rights. Cf. Haynes v. Washington, 373 U.S. [p493] 503, 512513 (1963); Haley v. Ohio, 332 U.S. 596, 601 (1948) (opinion of MR
JUSTICE DOUGLAS).
No. 760. Vignera v. New York
Petitioner, Michael Vignera, was picked up by New York police on October
14, 1960, in connection with the robbery three days earlier of a Brooklyn
dress shop. They took him to the 17th Detective Squad headquarters in
Manhattan. Sometime thereafter, he was taken to the 66th Detective Squad.
There a detective questioned Vignera with respect to the robbery. Vignera
orally admitted the robbery to the detective. The detective was asked on
cross-examination at trial by defense counsel whether Vignera was warned
of his right to counsel before being interrogated. The prosecution objected to
the question, and the trial judge sustained the objection. Thus, the defense
was precluded from making any showing that warnings had not been given.
While at the 66th Detective Squad, Vignera was identified by the store
owner and a saleslady as the man who robbed the dress shop. At about 3
p.m., he was formally arrested. The police then transported him to still
another station, the 70th Precinct in Brooklyn, "for detention." At 11 p.m.,
Vignera was questioned by an assistant district attorney in the presence of a
hearing reporter, who transcribed the questions and Vignera's answers. This
verbatim account of these proceedings contains no statement of any
warnings given by the assistant district attorney. At Vignera's trial on a
charge of first degree robbery, the detective testified as to the oral
confession. The transcription of the statement taken was also introduced in
evidence. At the conclusion of the testimony, the trial judge charged the jury
in part as follows:
The law doesn't say that the confession is void or invalidated because the
police officer didn't advise the defendant as to his rights. Did you hear
what [p494] I said? I am telling you what the law of the State of New York
is.
Vignera was found guilty of first degree robbery. He was subsequently
adjudged a third-felony offender and sentenced to 30 to 60 years'

imprisonment. [n68] The conviction was affirmed without opinion by the

Appellate Division, Second Department, 21 App.Div.2d 752, 252 N.Y.S.2d
19, and by the Court of Appeals, also without opinion, 15 N.Y.2d 970, 207
N.E.2d 527, 259 N.Y.S.2d 857, remittitur amended,16 N.Y.2d 614, 209
N.E.2d 110, 261 N.Y. .2d 65. In argument to the Court of Appeals, the State
contended that Vignera had no constitutional right to be advised of his right
to counsel or his privilege against self-incrimination.
We reverse. The foregoing indicates that Vignera was not warned of any of
his rights before the questioning by the detective and by the assistant district
attorney. No other steps were taken to protect these rights. Thus, he was not
effectively apprised of his Fifth Amendment privilege or of his right to have
counsel present, and his statements are inadmissible.
No. 761. Westover v. United States
At approximately 9:45 p.m. on March 20, 1963, petitioner, Carl Calvin
Westover, was arrested by local police in Kansas City as a suspect in two
Kansas City robberies. A report was also received from the FBI that he was
wanted on a felony charge in California. The local authorities took him to a
police station and placed him in a line-up on the local charges, and, at about
11:45 p.m., he was booked. Kansas City police interrogated
Westover [p495] on the night of his arrest. He denied any knowledge of
criminal activities. The next day, local officers interrogated him again
throughout the morning. Shortly before noon, they informed the FBI that
they were through interrogating Westover and that the FBI could proceed to
interrogate him. There is nothing in the record to indicate that Westover was
ever given any warning as to his rights by local police. At noon, three special
agents of the FBI continued the interrogation in a private interview room of
the Kansas City Police Department, this time with respect to the robbery of a
savings and loan association and bank in Sacramento, California. After two
or two and one-half hours, Westover signed separate confessions to each of
these two robberies which had been prepared by one of the agents during the
interrogation. At trial, one of the agents testified, and a paragraph on each of
the statements states, that the agents advised Westover that he did not have to
make a statement, that any statement he made could be used against him, and
that he had the right to see an attorney.
Westover was tried by a jury in federal court and convicted of the California
robberies. His statements were introduced at trial. He was sentenced to 15
years' imprisonment on each count, the sentences to run consecutively. On
appeal, the conviction was affirmed by the Court of Appeals for the Ninth
Circuit. 342 F.2d 684.
We reverse. On the facts of this case, we cannot find that Westover
knowingly and intelligently waived his right to remain silent and his right to
consult with counsel prior to the time he made the statement. [n69] At
the [p496] time the FBI agents began questioning Westover, he had been in
custody for over 14 hours, and had been interrogated at length during that
period. The FBI interrogation began immediately upon the conclusion of the
interrogation by Kansas City police, and was conducted in local police
headquarters. Although the two law enforcement authorities are legally
distinct, and the crimes for which they interrogated Westover were different,
the impact on him was that of a continuous period of questioning. There is

no evidence of any warning given prior to the FBI interrogation, nor is there
any evidence of an articulated waiver of rights after the FBI commenced its
interrogation. The record simply shows that the defendant did, in fact,
confess a short time after being turned over to the FBI following
interrogation by local police. Despite the fact that the FBI agents gave
warnings at the outset of their interview, from Westover's point of view, the
warnings came at the end of the interrogation process. In these
circumstances, an intelligent waiver of constitutional rights cannot be
assumed.
We do not suggest that law enforcement authorities are precluded from
questioning any individual who has been held for a period of time by other
authorities and interrogated by them without appropriate warnings. A
different case would be presented if an accused were taken into custody by
the second authority, removed both in time and place from his original
surroundings, and then adequately advised of his rights and given an
opportunity to exercise them. But here, the FBI interrogation was conducted
immediately following the state interrogation in the same police station -- in
the same compelling surroundings. Thus, in obtaining a confession from
Westover [p497]the federal authorities were the beneficiaries of the pressure
applied by the local in-custody interrogation. In these circumstances, the
giving of warnings alone was not sufficient to protect the privilege.
No. 584. California v. Stewart
In the course of investigating a series of purse-snatch robberies in which one
of the victims had died of injuries inflicted by her assailant, respondent, Roy
Allen Stewart, was pointed out to Los Angeles police as the endorser of
dividend checks taken in one of the robberies. At about 7:15 p.m., January
31, 1963, police officers went to Stewart's house and arrested him. One of
the officers asked Stewart if they could search the house, to which he
replied, "Go ahead." The search turned up various items taken from the five
robbery victims. At the time of Stewart's arrest, police also arrested Stewart's
wife and three other persons who were visiting him. These four were jailed
along with Stewart, and were interrogated. Stewart was taken to the
University Station of the Los Angeles Police Department, where he was
placed in a cell. During the next five days, police interrogated Stewart on
nine different occasions. Except during the first interrogation session, when
he was confronted with an accusing witness, Stewart was isolated with his
interrogators.
During the ninth interrogation session, Stewart admitted that he had robbed
the deceased and stated that he had not meant to hurt her. Police then brought
Stewart before a magistrate for the first time. Since there was no evidence to
connect them with any crime, the police then released the other four persons
arrested with him.
Nothing in the record specifically indicates whether Stewart was or was not
advised of his right to remain silent or his right to counsel. In a number of
instances, [p498] however, the interrogating officers were asked to recount
everything that was said during the interrogations. None indicated that
Stewart was ever advised of his rights.
25

Stewart was charged with kidnapping to commit robbery, rape, and murder.
At his trial, transcripts of the first interrogation and the confession at the last
interrogation were introduced in evidence. The jury found Stewart guilty of
robbery and first degree murder, and fixed the penalty as death. On appeal,
the Supreme Court of California reversed. 62 Cal.2d 571, 400 P.2d 97, 43
Cal.Rptr. 201. It held that, under this Court's decision in Escobedo, Stewart
should have been advised of his right to remain silent and of his right to
counsel, and that it would not presume in the face of a silent record that the
police advised Stewart of his rights. [n70]
We affirm. [n71] In dealing with custodial interrogation, we will not
presume that a defendant has been effectively apprised of his rights and that
his privilege against self-incrimination has been adequately safeguarded on a
record that does not show that any warnings have been given or that any
effective alternative has been employed. Nor can a knowing and intelligent
waiver of [p499] these rights be assumed on a silent record. Furthermore,
Stewart's steadfast denial of the alleged offenses through eight of the nine
interrogations over a period of five days is subject to no other construction
than that he was compelled by persistent interrogation to forgo his Fifth
Amendment privilege.
Therefore, in accordance with the foregoing, the judgments of the Supreme
Court Of Arizona in No. 759, of the New York Court of Appeals in No. 760,
and of the Court of Appeals for the Ninth Circuit in No. 761, are reversed.
The judgment of the Supreme Court of California in No. 584 is affirmed.
It is so ordered.

26

Page 388 U. S. 219

United States v. Wade, 388 U.S. 218 (1967)
United States v. Wade
No. 334
Argued February 16, 1967
Decided June 12, 1967
388 U.S. 218
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Syllabus
Several weeks after respondent's indictment for robbery of a federally
insured bank and for conspiracy, respondent, without notice to his appointed
counsel, was placed in a lineup in which each person wore strips of tape on
his face, as the robber allegedly had done, and, on direction, repeated words
like those the robber allegedly had used. Two bank employees identified
respondent as the robber. At the trial, when asked if the robber was in the
courtroom, they identified respondent. The prior lineup identifications were
elicited on cross-examination. Urging that the conduct of the lineup violated
his Fifth Amendment privilege against self-incrimination and his Sixth
Amendment right to counsel, respondent filed a motion for judgment of
acquittal or, alternatively, to strike the courtroom identifications. The trial
court denied the motions, and respondent was convicted. The Court of
Appeals reversed, holding that, though there was no Fifth Amendment
deprivation, the absence of counsel at the lineup denied respondent his right
to counsel under the Sixth Amendment and required the grant of a new trial
at which the in-court identifications of those who had made lineup
identifications would be excluded.
Held:
1. Neither the lineup itself nor anything required therein violated
respondent's Fifth Amendment privilege against self-incrimination, since
merely exhibiting his person for observation by witnesses and using his
voice as an identifying physical characteristic involved no compulsion of the
accused to give evidence of a testimonial nature against himself which is
prohibited by that Amendment. Pp. 388 U. S. 221-223.
2. The Sixth Amendment guarantees an accused the right to counsel not only
at his trial but at any critical confrontation by the prosecution at pretrial
proceedings where the results might well determine his fate and where the
absence of counsel might derogate from his right to a fair trial. Pp. 388 U. S.
223-227.
3. The post-indictment lineup (unlike such preparatory steps as analyzing
fingerprints and blood samples) was a critical prosecutive stage at which
respondent was entitled to the aid of counsel. Pp. 388 U. S. 227-239.

(a) There is a great possibility of unfairness to the accused at that point, (1)
because of the manner in which confrontations for identification are
frequently conducted, (2) because of dangers inherent in eyewitness
identification and suggestibility' inherent in the context of the confrontations,
and (3) because of the likelihood that the accused will often be precluded
from reconstructing what occurred, and thereby obtaining a full hearing on
the identification issue at trial. Pp. 388 U. S. 229-235.
(b) This case illustrates the potential for improper influence on witnesses
through the lineup procedure, since the bank employees were allowed to see
respondent in the custody of FBI agents before the lineup began. Pp. 388 U.
S. 233-234.
(c) The presence of counsel at the lineup will significantly promote fairness
at the confrontation and a full hearing at trial on the issue of identification.
Pp. 388 U. S. 236-238.
4. In-court identification by a witness to whom the accused was exhibited
before trial in the absence of counsel must be excluded unless it can be
established that such evidence had an independent origin or that error in its
admission was harmless. Since it is not clear that the Court of Appeals
applied the prescribed rule of exclusion, and since the nature of the in-court
identifications here was not an issue in the trial and cannot be determined on
the record, the case must be remanded to the District Court for resolution of
these issues. Pp. 388 U. S. 239-243.

"put the money in the bag," the words allegedly uttered by the robber. Both
bank employees identified Wade in the lineup as the bank robber.
At trial, the two employees, when asked on direct examination if the robber
was in the courtroom, pointed to Wade. The prior lineup identification was
then elicited from both employees on cross-examination. At the close of
testimony, Wade's counsel moved for a judgment of acquittal or,
alternatively, to strike the bank officials' courtroom identifications on the
ground that conduct of the lineup, without notice to and in the absence of his
appointed counsel, violated his Fifth Amendment privilege against selfincrimination and his Sixth Amendment right to the assistance of counsel.
The motion was denied, and Wade was convicted. The
Page 388 U. S. 221
Court of Appeals for the Fifth Circuit reversed the conviction and ordered a
new trial at which the in-court identification evidence was to be excluded,
holding that, though the lineup did not violate Wade's Fifth Amendment
rights, "the lineup, held as it was, in the absence of counsel already chosen to
represent appellant, was a violation of his Sixth Amendment rights. . . ." 358
F.2d 557, 560. We granted certiorari, 385 U.S. 811, and set the case for oral
argument with No. 223, Gilbert v. California, post, p. 388 U. S. 263, and No.
254, Stovall v. Denno, post, p. 388 U. S. 293, which present similar
questions. We reverse the judgment of the Court of Appeals and remand to
that court with direction to enter a new judgment vacating the conviction and
remanding the case to the District Court for further proceedings consistent
with this opinion.

358 F.2d 557, vacated and remanded.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question here is whether courtroom identifications of an accused at trial

are to be excluded from evidence because the accused was exhibited to the
witnesses before trial at a post-indictment lineup conducted for

Neither the lineup itself nor anything shown by this record that Wade was
required to do in the lineup violated his privilege against self-incrimination.
We have only recently reaffirmed that the privilege

Page 388 U. S. 220

"protects an accused only from being compelled to testify against himself, or

otherwise provide the State with evidence of a testimonial or communicative
nature. . . ."

identification purposes without notice to, and in the absence of, the accused's
appointed counsel.
The federally insured bank in Eustace, Texas, was robbed on September 21,
1964. A man with a small strip of tape on each side of his face entered the
bank, pointed a pistol at the female cashier and the vice-president, the only
persons in the bank at the time, and forced them to fill a pillowcase with the
bank's money. The man then drove away with an accomplice who had been
waiting in a stolen car outside the bank. On March 23, 1965, an indictment
was returned against respondent, Wade, and two others for conspiring to rob
the bank, and against Wade and the accomplice for the robbery itself. Wade
was arrested on April 2, and counsel was appointed to represent him on April
26. Fifteen days later, an FBI agent, without notice to Wade's lawyer,
arranged to have the two bank employees observe a lineup made up of Wade
and five or six other prisoners and conducted in a courtroom of the local
county courthouse. Each person in the line wore strips of tape such as
allegedly worn by the robber, and, upon direction, each said something like

Schmerber v. California, 384 U. S. 757, 384 U. S. 761. We there held that

compelling a suspect to submit to a withdrawal of a sample of his blood for
analysis for alcohol content and the admission in evidence of the analysis
report were not compulsion to those ends. That holding was supported by the
opinion in Holt v. United States, 218 U. S. 245, in which case a question
arose as to whether a blouse belonged to the defendant. A witness testified at
trial that the defendant put on the blouse, and it had fit him. The defendant
argued that the admission of the testimony was error because compelling
him to put on the blouse was a violation of his privilege. The Court
Page 388 U. S. 222
rejected the claim as "an extravagant extension of the Fifth Amendment,"
Mr. Justice Holmes saying for the Court:
"[T]he prohibition of compelling a man in a criminal court to be witness
against himself is a prohibition of the use of physical or moral compulsion to
27

extort communications from him, not an exclusion of his body as evidence

when it may be material."

this case, it is urged that the assistance of counsel at the lineup was
indispensable

218 U.S. at 218 U. S. 252-253. The Court in Holt, however, put aside any
constitutional questions which might be involved in compelling an accused,
as here, to exhibit himself before victims of or witnesses to an alleged crime;
the Court stated, "we need not consider how far a court would go in
compelling a man to exhibit himself." Id. at 218 U. S. 253. [Footnote 1]

Page 388 U. S. 224

We have no doubt that compelling the accused merely to exhibit his person
for observation by a prosecution witness prior to trial involves no
compulsion of the accused to give evidence having testimonial significance.
It is compulsion of the accused to exhibit his physical characteristics, not
compulsion to disclose any knowledge he might have. It is no different from
compelling Schmerber to provide a blood sample or Holt to wear the blouse,
and, as in those instances, is not within the cover of the privilege. Similarly,
compelling Wade to speak within hearing distance of the witnesses, even to
utter words purportedly uttered by the robber, was not compulsion to utter
statements of a "testimonial" nature; he was required to use his voice as an
identifying

The Framers of the Bill of Rights envisaged a broader role for counsel than
under the practice then prevailing in England of merely advising his client in
"matters of law," and eschewing any responsibility for "matters of fact."
[Footnote 2] The constitutions in at least 11 of the 13 States expressly or
impliedly abolished this distinction. Powell v. Alabama, 287 U. S. 45,287 U.
S. 60-65; Note, 73 Yale L.J. 1000, 1030-1033 (1964).

Page 388 U. S. 223

physical characteristic, not to speak his guilt. We held in Schmerber,
supra, at 384 U. S. 761, that the distinction to be drawn under the Fifth
Amendment privilege against self-incrimination is one between an accused's
"communications," in whatever form, vocal or physical, and "compulsion
which makes a suspect or accused the source of real or physical
evidence,'" Schmerber, supra, at 384 U. S. 764. We recognized that
"both federal and state courts have usually held that . . . [the privilege] offers
no protection against compulsion to submit to fingerprinting, photography,
or measurements, to write or speak for identification, to appear in court, to
stand, to assume a stance, to walk, or to make a particular gesture."
Id. at 384 U. S. 764. None of these activities becomes testimonial within the
scope of the privilege because required of the accused in a pretrial lineup.
Moreover, it deserves emphasis that this case presents no question of the
admissibility in evidence of anything Wade said or did at the lineup which
implicates his privilege. The Government offered no such evidence as part of
its case, and what came out about the lineup proceedings on Wade's crossexamination of the bank employees involved no violation of Wade's
privilege.
II
The fact that the lineup involved no violation of Wade's privilege against
self-incrimination does not, however, dispose of his contention that the
courtroom identifications should have been excluded because the lineup was
conducted without notice to, and in the absence of, his counsel. Our rejection
of the right to counsel claim in Schmerber rested on our conclusion in that
case that "[n]o issue of counsel's ability to assist petitioner in respect of any
rights he did possess is presented." 384 U.S. at 384 U. S. 766. In contrast, in

to protect Wade's most basic right as a criminal defendant -- his right to a fair
trial at which the witnesses against him might be meaningfully crossexamined.

it appeared that they were overheard by federal agents who, without notice to
the defendant's lawyer, arranged a meeting between the defendant and an
accomplice turned informant. We said, quoting a concurring opinion
in Spano v. New York, 360 U. S. 315, 360 U. S. 326, that
"[a]nything less . . . might deny a defendant 'effective representation by
counsel at the only stage when legal aid and advice would help him.'"
377 U.S. at 377 U. S. 204.
In Escobedo v. Illinois, 378 U. S. 478, we drew upon the rationale
of Hamilton and Massiah in holding that the right to counsel was guaranteed
at the point where the accused, prior to arraignment, was subjected to secret
interrogation despite repeated requests to see his lawyer. We again noted the
necessity of counsel's presence

"Though the colonial provisions about counsel were in accord on few things,
they agreed on the necessity of abolishing the facts-law distinction; the
colonists appreciated that, if a defendant were forced to stand alone against
the state, his case was foredoomed."

Page 388 U. S. 226

73 Yale L.J., supra, at 1033-1034. This background is reflected in the scope

given by our decisions to the Sixth Amendment's guarantee to an accused of
the assistance of counsel for his defense. When the Bill of Rights was
adopted, there were no organized police forces as we know them today.
[Footnote 3] The accused confronted the prosecutor and the witnesses
against him, and the evidence was marshalled, largely at the trial itself. In
contrast, today's law enforcement machinery involves critical confrontations
of the accused by the prosecution at pretrial proceedings where the results
might well settle the accused's fate and reduce the trial itself to a mere
formality. In recognition of these realities of modern criminal prosecution,
our cases have construed the Sixth Amendment guarantee to apply to
"critical" stages of the proceedings. The guarantee reads:

"The rule sought by the State here, however, would make the trial no more
than an appeal from the interrogation, and the "right to use counsel at the
formal trial [would be] a very hollow thing [if], for all practical purposes, the
conviction is already assured by pretrial examination." . . . "One can imagine
a cynical prosecutor saying: Let them have the most illustrious counsel, now.
They can't escape the noose. There is nothing that counsel can do for them at
the trial.'""

"In all criminal

Of course, nothing decided or said in the opinions in the cited cases links the
right to counsel only to protection of Fifth Amendment rights. Rather, those
decisions "no more than reflect a constitutional principle established as long
ago as Powell v. Alabama. . . ." Massiah v. United States, supra, at 377 U. S.
205. It is central to that principle that, in addition to counsel's presence at
trial, [Footnote 4] the accused is guaranteed that he need not stand alone
against the State at any stage of the prosecution, formal or informal, in court
or out, where counsel's absence might derogate from the accused's right to a
fair trial. [Footnote 5] The security of that right is as much the aim of the
right to counsel as it is of the other guarantees of the

Page 388 U. S. 225

prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence."
(Emphasis supplied.) The plain wording of this guarantee thus encompasses
counsel's assistance whenever necessary to assure a meaningful "defence."
As early as Powell v. Alabama, supra, we recognized that the period from
arraignment to trial was "perhaps the most critical period of the proceedings .
. . ," id. at 287 U. S. 57, during which the accused "requires the guiding hand
of counsel . . . ," id. at 287 U. S. 69, if the guarantee is not to prove an empty
right. That principle has since been applied to require the assistance of
counsel at the type of arraignment -- for example, that provided by Alabama
-- where certain rights might be sacrificed or lost: "What happens there may
affect the whole trial. Available defenses may be irretrievably lost, if not then
and there asserted. . . ." Hamilton v. Alabama, 368 U. S. 52, 368 U. S.
54. See White v. Maryland, 373 U. S. 59. The principle was also applied
in Massiah v. United States, 377 U. S. 201, where we held that incriminating
statements of the defendant should have been excluded from evidence when

if the accused was to have a fair opportunity to present a defense at the trial
itself:

378 U.S. at 378 U. S. 487-488. Finally, in Miranda v. Arizona, 384 U. S. 436,

the rules established for custodial interrogation included the right to the
presence of counsel. The result was rested on our finding that this and the
other rules were necessary to safeguard the privilege against selfincrimination from being jeopardized by such interrogation.

Page 388 U. S. 227

Sixth Amendment -- the right of the accused to a speedy and public trial by
an impartial jury, his right to be informed of the nature and cause of the
accusation, and his right to be confronted with the witnesses against him and
to have compulsory process for obtaining witnesses in his favor. The
presence of counsel at such critical confrontations, as at the trial itself,
operates to assure that the accused's interests will be protected consistently
with our adversary theory of criminal prosecution. Cf. Pointer v. Texas, 380
U. S. 400.
28

In sum, the principle of Powell v. Alabama and succeeding cases requires

that we scrutinize any pretrial confrontation of the accused to determine
whether the presence of his counsel is necessary to preserve the defendant's
basic right to a fair trial as affected by his right meaningfully to crossexamine the witnesses against him and to have effective assistance of
counsel at the trial itself. It calls upon us to analyze whether potential
substantial prejudice to defendant's rights inheres in the particular
confrontation and the ability of counsel to help avoid that prejudice.
III
The Government characterizes the lineup as a mere preparatory step in the
gathering of the prosecution's evidence, not different -- for Sixth Amendment
purposes -- from various other preparatory steps, such as systematized or
scientific analyzing of the accused's fingerprints, blood sample, clothing,
hair, and the like. We think there are differences which preclude such stages'
being characterized as critical stages at which the accused has the right to the
presence of his counsel. Knowledge of the techniques of science and
technology is sufficiently available, and the variables in techniques few
enough, that the accused has the opportunity for a meaningful confrontation
of the Government's case at
Page 388 U. S. 228
trial through the ordinary processes of cross-examination of the
Government's expert witnesses and the presentation of the evidence of his
own experts. The denial of a right to have his counsel present at such
analyses does not therefore violate the Sixth Amendment; they are not
critical stages, since there is minimal risk that his counsel's absence at such
stages might derogate from his right to a fair trial.
IV
But the confrontation compelled by the State between the accused and the
victim or witnesses to a crime to elicit identification evidence is peculiarly
riddled with innumerable dangers and variable factors which might seriously,
even crucially, derogate from a fair trial. The vagaries of eyewitness
identification are well known; the annals of criminal law are rife with
instances of mistaken identification. [Footnote 6] Mr. Justice Frankfurter
once said:
"What is the worth of identification testimony even when uncontradicted?
The identification of strangers is proverbially untrustworthy. The hazards of
such testimony are established by a formidable number of instances in the
records of English and American trials. These instances are recent -- not due
to the brutalities of ancient criminal procedure."
The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the
high incidence of miscarriage of justice from mistaken identification has
been the degree of suggestion inherent in the manner in which the
prosecution presents the suspect to witnesses for pretrial identification. A
commentator

Page 388 U. S. 229

has observed that
"[t]he influence of improper suggestion upon identifying witnesses probably
accounts for more miscarriages of justice than any other single factor -perhaps it is responsible for more such errors than all other factors
combined."
Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be
created intentionally or unintentionally in many subtle ways. [Footnote 7]
And the dangers for the suspect are particularly grave when the witness'
opportunity for observation was insubstantial, and thus his susceptibility to
suggestion the greatest.
Moreover,
"[i]t is a matter of common experience that, once a witness has picked out
the accused at the line-up, he is not likely to go back on his word later on, so
that, in practice, the issue of identity may (in the absence of other relevant
evidence) for all practical purposes be determined there and then, before the
trial. [Footnote 8]"
The pretrial confrontation for purpose of identification may take the form of
a lineup, also known as an "identification parade" or "showup," as in the
present case, or presentation of the suspect alone to the witness, as in Stovall
v. Denno, supra. It is obvious that risks of suggestion attend either form of
confrontation, and increase the dangers inhering in eyewitness identification.
[Footnote 9] But,
Page 388 U. S. 230
as is the case with secret interrogations, there is serious difficulty in
depicting what transpires at lineups and other forms of identification
confrontations. "Privacy results in secrecy, and this, in turn, results in a gap
in our knowledge as to what, in fact, goes on. . . ." Miranda v. Arizona,
supra, at 384 U. S. 448. For the same reasons, the defense can seldom
reconstruct the manner and mode of lineup identification for judge or jury at
trial. Those participating in a lineup with the accused may often be police
officers; [Footnote 10] in any event, the participants' names are rarely
recorded or divulged at trial. [Footnote 11] The impediments to an objective
observation are increased when the victim is the witness. Lineups are
prevalent in rape and robbery prosecutions, and present a particular hazard
that a victim's understandable outrage may excite vengeful or spiteful
motives. [Footnote 12] In any event, neither witnesses nor lineup
participants are apt to be alert for conditions prejudicial to the suspect. And if
they were, it would likely be of scant benefit to the suspect, since neither
witnesses nor lineup participants are likely to be schooled in the detection of
suggestive influences. [Footnote 13] Improper influences
Page 388 U. S. 231
may go undetected by a suspect, guilty or not, who experiences the
emotional tension which we might expect in one being confronted with
potential accusers. [Footnote 14] Even when he does observe abuse, if he has
a criminal record, he may be reluctant to take the stand and open up the

admission of prior convictions. Moreover, any protestations by the suspect of

the fairness of the lineup made at trial are likely to be in vain; [Footnote 15]
the jury's choice is between the accused's unsupported version and that of the
police officers present. [Footnote 16] In short, the accused's
Page 388 U. S. 232
inability effectively to reconstruct at trial any unfairness that occurred at the
lineup may deprive him of his only opportunity meaningfully to attack the
credibility of the witness' courtroom identification.
What facts have been disclosed in specific cases about the conduct of pretrial
confrontations for identification illustrate both the potential for substantial
prejudice to the accused at that stage and the need for its revelation at trial. A
commentator provides some striking examples:
"In a Canadian case . . . the defendant had been picked out of a line-up of six
men, of which he was the only Oriental. In other cases, a black-haired
suspect was placed among a group of light-haired persons, tall suspects have
been made to stand with short non-suspects, and, in a case where the
perpetrator of the crime was known to be a youth, a suspect under twenty
was placed in a line-up with five other persons, all of whom were forty or
over. [Footnote 17]"
Similarly state reports, in the course of describing prior identifications
admitted as evidence of guilt, reveal
Page 388 U. S. 233
numerous instances of suggestive procedures, for example, that all in the
lineup but the suspect were known to the identifying witness, [Footnote 18]
that the other participants in a lineup were grossly dissimilar in appearance
to the suspect, [Footnote 19] that only the suspect was required to wear
distinctive clothing which the culprit allegedly wore, [Footnote 20] that the
witness is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail, [Footnote
21] that the suspect is pointed out before or during a lineup, [Footnote 22]
and that the participants in the lineup are asked to try on an article of
clothing which fits only the suspect. [Footnote 23]
The potential for improper influence is illustrated by the circumstances,
insofar as they appear, surrounding the prior identifications in the three cases
we decide today. In the present case, the testimony of the identifying
Page 388 U. S. 234
witnesses elicited on cross-examination revealed that those witnesses were
taken to the courthouse and seated in the courtroom to await assembly of the
lineup. The courtroom faced on a hallway observable to the witnesses
through an open door. The cashier testified that she saw Wade "standing in
the hall" within sight of an FBI agent. Five or six other prisoners later
appeared in the hall. The vice-president testified that he saw a person in the
hall in the custody of the agent who "resembled the person that we identified
as the one that had entered the bank." [Footnote 24]
29

The lineup in Gilbert, supra, was conducted in an auditorium in which some

100 witnesses to several alleged state and federal robberies charged to
Gilbert made wholesale identifications of Gilbert as the robber in each
other's presence, a procedure said to be fraught with dangers of suggestion.
[Footnote 25] And the vice of suggestion created by the identification
in Stovall, supra, was the presentation to the witness of the suspect alone
handcuffed to police officers. It is hard to imagine a situation more clearly
conveying the suggestion to the witness that the one presented is believed
guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32.
The few cases that have surfaced therefore reveal the existence of a process
attended with hazards of serious unfairness to the criminal accused, and
strongly suggest the plight of the more numerous defendants who are unable
to ferret out suggestive influences in the
Page 388 U. S. 235
secrecy of the confrontation. We do not assume that these risks are the result
of police procedures intentionally designed to prejudice an accused. Rather,
we assume they derive from the dangers inherent in eyewitness identification
and the suggestibility inherent in the context of the pretrial identification.
Williams & Hammelmann, in one of the most comprehensive studies of such
forms of identification, said,

since presence of counsel itself can often avert prejudice and assure a
meaningful confrontation at trial, [Footnote 26] there can be
Page 388 U. S. 237
little doubt that, for Wade, the post-indictment lineup was a critical stage of
the prosecution at which he was "as much entitled to such aid [of
counsel] . . . as at the trial itself." Powell v. Alabama, 287 U. S. 45, 287 U. S.
57. Thus, both Wade and his counsel should have been notified of the
impending lineup, and counsel's presence should have been a requisite to
conduct of the lineup, absent an "intelligent waiver." See Carnley v.
Cochran, 369 U. S. 506. No substantial countervailing policy considerations
have been advanced against the requirement of the presence of counsel.
Concern is expressed that the requirement will forestall prompt
identifications and result in obstruction of the confrontations. As for the first,
we note that, in the two cases in which the right to counsel is today held to
apply, counsel had already been appointed, and no argument is made in
either case that notice to counsel would have prejudicially delayed the
confrontations. Moreover, we leave open the question whether the presence
of substitute counsel might not suffice where notification and presence of the
suspect's own counsel would result in prejudicial delay. [Footnote 27] And to
refuse to recognize the right to counsel for fear that counsel will obstruct the
course of justice is contrary to the

"[T]he fact that the police themselves have, in a given case, little or no doubt
that the man put up for identification has committed the offense, and that
their chief preoccupation is with the problem of getting sufficient proof
because he has not''come clean,' involves a danger that this persuasion may
communicate itself even in a doubtful case to the witness in some way. . . ."

Page 388 U. S. 238

Identification Parades, Part I, [1963] Crim.L.Rev. 479, 483.

"[A]n attorney is merely exercising the good professional judgment he has

been taught. This is not cause for considering the attorney a menace to law
enforcement. He is merely carrying out what he is sworn to do under his oath
-- to protect to the extent of his ability the rights of his client. In fulfilling
this responsibility, the attorney plays a vital role in the administration of
criminal justice under our Constitution."

Insofar as the accused's conviction may rest on a courtroom identification, in

fact, the fruit of a suspect pretrial identification which the accused is helpless
to subject to effective scrutiny at trial, the accused is deprived of that right of
cross-examination which is an essential safeguard to his right to confront the
witnesses against him. Pointer v. Texas, 380 U. S. 400. And even though
cross-examination is a precious safeguard to a fair trial, it cannot be viewed
as an absolute assurance of accuracy and reliability. Thus, in the present
context, where so many variables and pitfalls exist, the first line of defense
must be the prevention of unfairness and the lessening of the hazards of
eyewitness identification at the lineup itself. The trial which might determine
the accused's fate may well not be that in the courtroom but that at the
pretrial confrontation, with the State aligned against the accused, the witness
the sole jury, and the accused unprotected against the overreaching,
intentional or unintentional, and with little or no
Page 388 U. S. 236
effective appeal from the judgment there rendered by the witness -- "that's
the man."
Since it appears that there is grave potential for prejudice, intentional or not,
in the pretrial lineup, which may not be capable of reconstruction at trial, and

basic assumptions upon which this Court has operated in Sixth Amendment
cases. We rejected similar logic in Miranda v. Arizona concerning presence
of counsel during custodial interrogation, 384 U.S. at 384 U. S. 480-481:

In our view, counsel can hardly impede legitimate law enforcement; on the
contrary, for the reasons expressed, law enforcement may be assisted by
preventing the infiltration of taint in the prosecution's identification
evidence. [Footnote 28] That result cannot help the guilty avoid conviction,
but can only help assure that the right man has been brought to justice.
[Footnote 29]
Page 388 U. S. 239
Legislative or other regulations, such as those of local police departments,
which eliminate the risks of abuse and unintentional suggestion at lineup
proceedings and the impediments to meaningful confrontation at trial may
also remove the basis for regarding the stage as "critical." [Footnote 30] But
neither Congress nor the federal authorities have seen fit to provide a
solution. What we hold today "in no way creates a constitutional straitjacket
which will handicap sound efforts at reform, nor is it intended to have this
effect." Miranda v. Arizona, supra, at 384 U. S. 467.

V
We come now to the question whether the denial of Wade's motion to strike
the courtroom identification by the bank witnesses at trial because of the
absence of his counsel at the lineup required, as the Court of Appeals held,
the grant of a new trial at which such evidence is
Page 388 U. S. 240
to be excluded. We do not think this disposition can be justified without first
giving the Government the opportunity to establish by clear and convincing
evidence that the in-court identifications were based upon observations of
the suspect other than the lineup identification. See Murphy v. Waterfront
Commission, 378 U. S. 52, 378 U. S. 79, n. 18. [Footnote 31] Where, as
here, the admissibility of evidence of the lineup identification itself is not
involved, a per se rule of exclusion of courtroom identification would be
unjustified. [Footnote 32] See Nardone v. United States, 308 U. S. 338, 308
U. S. 341. A rule limited solely to the exclusion of testimony concerning
identification at the lineup itself, without regard to admissibility of the
courtroom identification, would render the right to counsel an empty one.
The lineup is most often used, as in the present case, to crystallize the
witnesses' identification of the defendant for future reference. We have
already noted that the lineup identification will have that effect. The State
may then rest upon the witnesses' unequivocal courtroom identification, and
not mention the pretrial identification as part of the State's case at trial.
Counsel is then in the predicament in which Wade's counsel found himself -realizing that possible unfairness at the lineup may be the sole means of
attack upon the unequivocal courtroom identification, and having to probe in
the dark
Page 388 U. S. 241
in an attempt to discover and reveal unfairness, while bolstering the
government witness' courtroom identification by bringing out and dwelling
upon his prior identification. Since counsel's presence at the lineup would
equip him to attack not only the lineup identification, but the courtroom
identification as well, limiting the impact of violation of the right to counsel
to exclusion of evidence only of identification at the lineup itself disregards
a critical element of that right.
We think it follows that the proper test to be applied in these situations is that
quoted in Wong Sun v. United States, 371 U. S. 471, 371 U. S. 488,
"'[W]hether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.' Maguire, Evidence of Guilt 221 (1959)."
See also Hoffa v. United States, 385 U. S. 293, 385 U. S. 309. Application of
this test in the present context requires consideration of various factors; for
example, the prior opportunity to observe the alleged criminal act, the
existence of any discrepancy between any pre-lineup description and the
defendant's actual description, any identification prior to lineup of another
person, the identification by picture of the defendant prior to the lineup,
failure to identify the defendant on a prior occasion, and the lapse of time
30

between the alleged act and the lineup identification. It is also relevant to
consider those facts which, despite the absence of counsel, are disclosed
concerning the conduct of the lineup. [Footnote 33]
Page 388 U. S. 242
We doubt that the Court of Appeals applied the proper test for exclusion of
the in-court identification of the two witnesses. The court stated that
"it cannot be said with any certainty that they would have recognized
appellant at the time of trial if this intervening lineup had not occurred,"
and that the testimony of the two witnesses "may well have been colored by
the illegal procedure, [and] was prejudicial." 358 F.2d at 560. Moreover, the
court was persuaded, in part, by the "compulsory verbal responses made by
Wade at the instance of the Special Agent." Ibid. This implies the erroneous
holding that Wade's privilege against self-incrimination was violated, so that
the denial of counsel required exclusion.
On the record now before us, we cannot make the determination whether the
in-court identifications had an independent origin. This was not an issue at
trial, although there is some evidence relevant to a determination. That
inquiry is most properly made in the District Court. We therefore think the
appropriate procedure to be followed is to vacate the conviction pending a
hearing to determine whether the in-court identifications had an independent
source or whether, in any event, the introduction of the evidence was
harmless error, Chapman v. California, 386 U. S. 18, and for the District
Court to reinstate the conviction or order a new trial, as may be proper. See
United States v. Shotwell Mfg. Co., 355 U. S. 233,355 U. S. 245-246.
Page 388 U. S. 243
The judgment of the Court of Appeals is vacated, and the case is remanded
to that court with direction to enter a new judgment vacating the conviction
and remanding the case to the District Court for further proceedings
consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE joins the opinion of the Court except for 388 U.
S. from which he dissents for the reasons expressed in the opinion of MR.
JUSTICE FORTAS.
MR. JUSTICE DOUGLAS joins the opinion of the Court except for 388 U.
S. On that phase of the case, he adheres to the dissenting views in Schmerber
v. California, 384 U. S. 757, 384 U. S. 772-779, since he believes that
compulsory lineup violates the privilege against self-incrimination contained
in the Fifth Amendment.

31

MR. JUSTICE FORTAS took no part in the consideration or decision of this

case.

Decided March 25, 1969

officers, petitioner was not free to go where he pleased, but was "under
arrest." The officers asked him if he had been to the El Farleto restaurant that
night and when he answered "yes" he was asked if he owned a pistol.
Petitioner admitted owning one. After being asked a second time where the
pistol was located, he admitted that it was in the washing machine in a back
room of the boardinghouse. Ballistics tests indicated that the gun found in
the washing machine was the gun that fired the fatal shot. At petitioner's
trial, held after the effective date [Footnote 2] of this Court's decision
in Miranda v. Arizona, 384 U. S. 436 (1966), the trial court allowed one of
the officers,

394 U.S. 324

Page 394 U. S. 326

See Johnson v. New Jersey, 384 U. S. 719 (1966).

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

over the objection of petitioner's lawyer, [Footnote 3] to relate the statements

made by petitioner concerning the gun and petitioner's presence at the scene
of the shooting. The trial testimony clearly shows that the officers questioned
petitioner about incriminating facts without first informing him of his right
to remain silent, his right to have the advice of a lawyer before making any
statement, and his right to have a lawyer appointed to assist him if he could
not afford to hire one. The Texas Court of Criminal Appeals held, with one
judge dissenting, that the admission of testimony concerning the statements
petitioner had made without the above warnings was not precluded
by Miranda. We disagree, and hold that the use of these admissions obtained
in the absence of the required warnings was a flat violation of the SelfIncrimination Clause of the Fifth Amendment as construed in Miranda.

[Footnote 3]

Orozco v. Texas, 394 U.S. 324 (1969)

Orozco v. Texas
No. 641
Argued February 26, 1969

Syllabus
Use of admissions at petitioner's trial for murder which were obtained by
officers who, while he was in their custody in his bedroom at the
boardinghouse where he lived, questioned him about incriminating facts
without first informing him of his rights to remain silent, to have a lawyer's
advice before making a statement, and to have lawyer appointed to assist
him if he could not afford to hire one, held to have violated SelfIncrimination Clause of Fifth Amendment made applicable to the States by
the Fourteenth. Miranda v. Arizona, 384 U. S. 436 (1966). Pp. 394 U. S. 326327.
428 S.W.2d 666, reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, Reyes Arias Orozco, was convicted in the Criminal District
Court of Dallas County, Texas, of murder without malice and was sentenced
to serve in the state prison not less than two nor more than 10 years. The
Court of Criminal Appeals of Texas affirmed the conviction, rejecting
petitioner's contention that a material part of the evidence against him was
obtained in violation of the provision of the Fifth Amendment to the United
States Constitution, made applicable to the States by the Fourteenth
Amendment, that: "No person
Page 394 U. S. 325
. . . shall be compelled in any criminal case to be a witness against himself."
[Footnote 1]
The evidence introduced at trial showed that petitioner and the deceased had
quarreled outside the El Farleto Cafe in Dallas shortly before midnight on
the date of the shooting. The deceased had apparently spoken to petitioner's
female companion inside the restaurant. In the heat of the quarrel outside, the
deceased is said to have beaten petitioner about the face and called him
"Mexican Grease." A shot was fired killing the deceased. Petitioner left the
scene and returned to his boardinghouse to sleep. At about 4 a.m. four police
officers arrived at petitioner's boardinghouse, were admitted by an
unidentified woman, and were told that petitioner was asleep in the bedroom.
All four officers entered the bedroom and began to question petitioner. From
the moment he gave his name, according to the testimony of one of the

The State has argued here that, since petitioner was interrogated on his own
bed, in familiar surroundings, our Mirandaholding should not apply. It is true
that the Court did say in Miranda that
"compulsion to speak in the isolated setting of the police station may well be
greater than in courts or other official investigations, where there are often
impartial observers to guard against intimidation or trickery."
384 U.S. at 384 U. S. 461. But the opinion iterated and reiterated the
absolute necessity for officers interrogating people "in custody" to give the
described warnings. See Mathis v. United States, 391 U. S. 1
Page 394 U. S. 327
(1968). According to the officer's testimony, petitioner was under arrest, and
not free to leave, when he was questioned in his bedroom in the early hours
of the morning. The Miranda opinion declared that the warnings were
required when the person being interrogated was "in custody at the station or
otherwise deprived of his freedom of action in any significant way." 384
U.S. at 384 U. S. 477. (Emphasis supplied.) The decision of this Court
in Miranda was reached after careful consideration, and lengthy opinions
were announced by both the majority and dissenting Justices. There is no
need to canvass those arguments again. We do not, as the dissent implies,
expand or extend to the slightest extent our Mirandadecision. We do adhere
to our well considered holding in that case, and therefore reverse [Footnote
4] the conviction below.
Reversed.

[Footnote 1]
The state court also rejected a contention that use of the evidence also
violated the Fourth Amendment's provision against unreasonable searches
and seizures. Our holding makes it unnecessary for us to consider that
contention.
[Footnote 2]

The State appears to urge that petitioners Miranda claim is unreviewable in

this Court because the objection made by trial counsel to the officer's
testimony was not sufficiently "specific." We fail to perceive how this could
be an adequate state ground in view of the fact that the Texas Court of
Criminal Appeals specifically decided that the introduction of petitioners
statement made to the officers "was not precluded under Miranda v. State of
Arizona," 428 S.W.2d 666, 672, while the dissenting judge thought that it
was.
[Footnote 4]
In light of some apparent misunderstanding on this point, it is perhaps
appropriate to point out once again that a reversal by this Court of a
conviction based in part on unconstitutional evidence leaves the State free to
retry the defendant without the tainted evidence.
MR. JUSTICE HARLAN, concurring.
The passage of time has not made the Miranda case any more palatable to
me than it was when the case was decided. Seemy dissenting opinion, and
that of MR. JUSTICE WHITE, in Miranda v. Arizona, 384 U. S. 436, 384 U.
S. 504, 384 U. S. 526(1966).
Yet, despite my strong inclination to join in the dissent of my Brother
WHITE, I can find no acceptable avenue of escape from Miranda in judging
this case, especially in light of Mathis v. United States, 391 U. S. 1 (1968),
which has already extended the Miranda rules beyond the
Page 394 U. S. 328
police station, over the protest of JUSTICES STEWART, WHITE, and
myself, id. at 391 U. S. 5-8. Therefore, and purely out of respect for stare
decisis, I reluctantly feel compelled to acquiesce in today's decision of the
Court, at the same time observing that the constitutional condemnation of
this perfectly understandable, sensible, proper, and indeed commendable
piece of police work highlights the unsoundness of Miranda.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins,
dissenting.
This decision carries the rule of Miranda v. Arizona, 384 U. S. 436 (1966), to
a new and unwarranted extreme. I continue to believe that the original rule
32

amounted to a "constitutional straitjacket" on law enforcement which was

justified neither by the words or history of the Constitution, nor by any
reasonable view of the likely benefits of the rule as against its disadvantages.
384 U.S. at 384 U. S. 526. Even accepting Miranda, the Court extends the
rule here and draws the straitjacket even tighter.
The opinion of the Court in Miranda was devoted in large part to an
elaborate discussion of the subtle forms of psychological pressure which
could be brought to bear when an accused person is interrogated at length in
unfamiliar surroundings. The "salient features" of the cases decided
in Miranda were "incommunicado interrogation of individuals in a policedominated atmosphere." 384 U.S. at 384 U. S. 445. The danger was that, in
such circumstances the confidence of the prisoner could be eroded by
techniques such as successive interrogations by police acting out friendly or
unfriendly roles. These techniques are best developed in "isolation and
unfamiliar surroundings," 384 U.S. at 384 U. S. 450. And they take time:
"the major qualities an interrogator should possess are patience and
perseverance." Ibid. The techniques
Page 394 U. S. 329
of an extended period of isolation, repeated interrogation, cajolery, and
trickery often enough produced admissions which were actually coerced in
the traditional sense so that new safeguards were deemed essential.
It is difficult to believe that the requirements there laid down were essential
to prevent compulsion in every conceivable case of station house
interrogation. Where the defendant himself as a lawyer, policeman,
professional criminal, or otherwise has become aware of what his right to
silence is, it is sheer fancy to assert that his answer to every question asked
him is compelled unless he is advised of those rights with which he is
already intimately familiar. If there is any warrant to Miranda at all, it rests
on the likelihood that, in a sufficient number of cases exposure to station
house practices will result in compelled confessions and that additional
safeguards should be imposed in all cases to prevent possible erosion of
Fifth
Amendment
values.
Hence,
the
detailed
ritual
which Miranda fashioned.
The Court now extends the same rules to all instances of in-custody
questioning outside the station house. Once arrest occurs, the application
of Miranda is automatic. The rule is simple but it ignores the purpose
of Miranda to guard against what was thought to be the corrosive influence
of practices which station house interrogation makes feasible. The Court
wholly ignores the question whether similar hazards exist or even are
possible when police arrest and interrogate on the spot, whether it be on the
street corner or in the home, as in this case. No predicate is laid for believing
that practices outside the station house are normally prolonged, carried out in
isolation, or often productive of the physical or psychological coercion made
so much of in Miranda. It is difficult to imagine the police duplicating in a
person's home or on the street those conditions and practices
Page 394 U. S. 330

which the Court found prevalent in the station house and which were thought
so threatening to the right to silence. Without such a
demonstration, Miranda hardly reaches this case or any cases similar to it.
Here, there was no prolonged interrogation, no unfamiliar surroundings, no
opportunity for the police to invoke those procedures which moved the
majority in Miranda. In fact, the conversation was, by all accounts, a very
brief one. According to uncontradicted testimony, petitioner was awake
when the officers entered his room, and they asked him four questions: his
name, whether he had been at the El Farleto, whether he owned a pistol, and
where it was. He gave his name, said he had been at the El Farleto, and
admitted he owned a pistol without hesitation. He was slow in telling where
the pistol was, and the question was repeated. He then took the police to the
nearby washing machine where the gun was hidden.

lawyer, just to discover his name. Even if the man is innocent, the process
will be an unpleasant one.
Since the Court's extension of Miranda's rule takes it into territory where
even what rationale there originally was disappears, I dissent.
Memorandum of MR. JUSTICE STEWART.
Although there is much to be said for MR. JUSTICE HARLAN's position, I
join my Brother WHITE in dissent. It seems to me that those of us who
dissented in Miranda v. Arizona, 384 U. S. 436, remain free not only to
express our continuing disagreement with that decision, but also to oppose
any broadening of its impact.

It is unquestioned that this sequence of events in their totality would not

constitute coercion in the traditional sense or lead any court to view the
admissions as involuntary within the meaning of the rules by which we even
now adjudicate claims of coercion relating to pre-Miranda trials. And,
realistically, had Orozco refused to answer the questions asked of him, it
seems most unlikely that prolonged interrogation would have followed in
petitioner's own quarters; nothing similar to the station house model invoked
by the court would have occurred here. The police had petitioner's name and
description, had ample evidence that he had been at the night club and
suspected that he had a gun. Surely, had he refused to give his name or
answer any other questions, they would have arrested him anyway, searched
the house and found the gun, which would have been clearly admissible
under all relevant authorities. But the Court insists that this case be reversed
for failure to give Miranda warnings.
I cannot accept the dilution of the custody requirements of Miranda to this
level, where the hazards to the
Page 394 U. S. 331
right to silence are so equivocal and unsupported by experience in a
recurring number of cases. Orozco was apprehended in the most familiar
quarters, the questioning was brief, and no admissions were made which
were not backed up by other evidence. This case does not involve the
confession of an innocent man, or even of a guilty man from whom a
confession has been wrung by physical abuse or the modern psychological
methods discussed in Miranda. These are simply the terse remarks of a man
who has been caught, almost in the act. Even if there were reason to
encourage suspects to consult lawyers to tell them to be silent before
quizzing at the station house, there is no reason why police in the field
should have to preface every casual question of a suspect with the full
panoply of Miranda warnings. The same danger of coercion is simply not
present in such circumstances, and the answers to the questions may as often
clear a suspect as help convict him. If the Miranda warnings have their
intended effect, and the police are able to get no answers from suspects,
innocent or guilty, without arresting them, then a great many more innocent
men will be making unnecessary trips to the station house. Ultimately it may
be necessary to arrest a man, bring him to the police station, and provide a
33

Communications Ass'n v. Douds, 339 U. S. 382, where the Court upheld

9(h) of the National
United States v. Brown, 381 U.S. 437 (1965)

Page 381 U. S. 438

United States v. Brown

Labor Relations Act, the predecessor of 504, the Court erroneously

assumed that only a law visiting retribution for past acts could constitute a
bill of attainder, and misread the statute involved in United States v.
Lovett, 328 U. S. 303, which it sought to distinguish from 9(h), as being in
that category. Pp. 381 U. S. 456-460.

No. 399
Argued March 29, 1965
Decided June 7, 1965
381 U.S. 437
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
Respondent was convicted under 504 of the Labor-Management Reporting
and Disclosure Act of 1959, which makes it a crime for one who belongs to
the Communist Party or who has been a member thereof during the
preceding five years wilfully to serve as a member of the executive board of
a labor organization. The Court of Appeals reversed, holding 504 violative
of the First and Fifth Amendments.
Held: Section 504 constitutes a bill of attainder, and is therefore
unconstitutional. Pp. 381 U. S. 441-462.
(a) The Bill of Attainder Clause, Art. I, 9, cl. 3, was intended to implement
the separation of powers among the three branches of the Government by
guarding against the legislative exercise of judicial power. Pp. 381 U. S. 441446.
(b) The Bill of Attainder Clause is to be liberally construed in the light of its
purpose to prevent legislative punishment of designated persons or
groups. Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall.
333; United States v. Lovett, 328 U. S. 303. Pp. 381 U. S. 447-449.
(c) In designating Communist Party members as those persons who cannot
hold union office, Congress has exceeded its Commerce Clause power to
enact generally applicable legislation disqualifying from positions affecting
interstate commerce persons who may use such positions to cause political
strikes. Pp. 381 U. S. 449-452.
(d) Section 504 is distinguishable from such conflict of interest statutes as
32 of the Banking Act, where Congress was legislating with respect to
general characteristics, rather than with respect to the members of a specific
group. Pp. 381 U. S. 453-455.
(e) The designation of Communist Party membership cannot be justified as
an alternative, "shorthand" expression for the characteristics which render
men likely to incite political strikes. Pp. 381 U. S. 455-456.
(f) A statute which inflicts its deprivation upon named or described persons
or groups constitutes a bill of attainder whether its aim is retributive,
punishing past acts, or preventive, discouraging future conduct. In America

(g) The legislative specification of those to whom the enacted sanction is to

apply invalidates a provision as a bill of attainder whether the individuals are
designated by name, as in Lovett, or by description, as here. Pp. 381 U. S.
461-462.

Respondent urges -- in addition to the grounds relied on by the court below

-- that the statute under which he was convicted is a bill of attainder, and
therefore violates Art. I, 9, of the Constitution. [Footnote 5] We agree that
504 is void as a bill of attainder. and affirm the decision of the Court of
Appeals on that basis. We therefore find it unnecessary to consider the First
and Fifth Amendment arguments.
Page 381 U. S. 441
I
The provisions outlawing bills of attainder were adopted by the
Constitutional Convention unanimously, and without debate. [Footnote 6]

334 F.2d 488, affirmed.

"No Bill of Attainder or ex post facto Law shall be passed (by the
Congress)."

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

Art. I, 9, cl. 3.

In this case, we review for the first time a conviction under 504 of the
Labor-Management Reporting and Disclosure Act of 1959, which makes it a
crime for a member of the Communist Party to serve as an officer or (except
in clerical or custodial positions) as an employee of a labor union. [Footnote
1] Section 504, the purpose of which is to protect

"No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts. . . ."

Page 381 U. S. 439

the national economy by minimizing the danger of political strikes,
[Footnote 2] was enacted to replace 9(h) of the National Labor Relations
Act, as amended by the Taft-Hartley Act, which conditioned a union's access
to the National Labor Relations Board upon the filing of affidavits by all of
the union's officers attesting that they were not members of or affiliated with
the Communist Party. [Footnote 3]
Page 381 U. S. 440
Respondent has been a working longshoreman on the San Francisco docks,
and an open and avowed Communist, for more than a quarter of a century.
He was elected to the Executive Board of Local 10 of the International
Longshoremen's and Warehousemen's Union for consecutive one-year terms
in 1959, 1960, and 1961. On May 24, 1961, respondent was charged in a
one-count indictment returned in the Northern District of California with
"knowingly and wilfully serv[ing] as a member of an executive board of a
labor organization . . . while a member of the Communist Party, in wilful
violation of Title 29, United States Code, Section 504."
It was neither charged nor proven that respondent at any time advocated or
suggested illegal activity by the union, or proposed a political strike.
[Footnote 4] The jury found respondent guilty, and he was sentenced to six
months' imprisonment. The Court of Appeals for the Ninth Circuit, sitting en
banc, reversed and remanded with instructions to set aside the conviction and
dismiss the indictment, holding that 504 violates the First and Fifth
Amendments to the Constitution. 334 F.2d 488. We granted certiorari, 379
U.S. 899.

Art. I, 10. A logical starting place for an inquiry into the meaning of the
prohibition is its historical background. The bill of attainder, a parliamentary
act sentencing to death one or more specific persons, was a device often
resorted to in sixteenth, seventeenth and eighteenth century England for
dealing with persons who had attempted, or threatened to attempt, to
overthrow the government. [Footnote 7] In addition to the death sentence,
attainder generally carried with it a "corruption of blood," which meant that
the attainted party's heirs could not inherit his property. [Footnote 8] The
"bill of pains and penalties" was identical to the bill of attainder, except that
it prescribed a penalty short of death, [Footnote 9] e.g., banishment,
[Footnote 10] deprivation of the right to
Page 381 U. S. 442
vote, [Footnote 11] or exclusion of the designated party's sons from
Parliament. [Footnote 12] Most bills of attainder and bills of pains and
penalties named the parties to whom they were to apply; a few, however,
simply described them. [Footnote 13] While some left the designated parties
a way of escaping the penalty, others did not. [Footnote 14] The use of bills
of attainder and bills of pains and penalties was not limited to England.
During the American Revolution, the legislatures of all thirteen States passed
statutes directed against the Tories; among these statutes were a large
number of bills of attainder and bills of pains and penalties. [Footnote 15]
While history thus provides some guidelines, the wide variation in form,
purpose and effect of ante-Constitution bills of attainder indicates that the
proper scope of the Bill of Attainder Clause, and its relevance to
contemporary problems, must ultimately be sought by attempting to discern
the reasons for its inclusion in the Constitution, and the evils it was designed
to eliminate. The best available evidence, the writings of the architects of our
constitutional system, indicates that the Bill of Attainder Clause was
intended not as a narrow, technical (and therefore soon to be outmoded)
prohibition, but rather as an implementation of the separation of powers, a
34

general safeguard against legislative exercise of the judicial function, or,

more simply, trial by legislature.
The Constitution divides the National Government into three branches -Legislative, Executive and Judicial.
Page 381 U. S. 443
This "separation of powers" was obviously not instituted with the idea that it
would promote governmental efficiency. It was, on the contrary, looked to as
a bulwark against tyranny. For if governmental power is fractionalized, if a
given policy can be implemented only by a combination of legislative
enactment, judicial application, and executive implementation, no man or
group of men will be able to impose its unchecked will. James Madison
wrote:
"The accumulation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of
tyranny. [Footnote 16]"
The doctrine of separated powers is implemented by a number of
constitutional provisions, some of which entrust certain jobs exclusively to
certain branches, while others say that a given task is not to be performed by
a given branch. For example, Article III's grant of "the judicial Power of the
United States" to federal courts has been interpreted both as a grant of
exclusive authority over certain areas. Marbury v. Madison, 1 Cranch 137,
and as a limitation upon the judiciary, a declaration that certain tasks are not
to be performed by courts, e.g., Muskrat v. United States, 219 U. S.
346. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579.
The authors of the Federalist Papers took the position that, although under
some systems of government (most notably, the one from which the United
States had just broken), the Executive Department is the branch most likely
to forget the bounds of its authority,

pleasure by general descriptions, it may soon confine all the votes to a small
number of partisans, and establish an aristocracy or an oligarchy; if it may
banish at discretion all those whom particular circumstances render
obnoxious, without hearing or trial, no man can be safe, nor know when he
may be the innocent victim of a prevailing faction. The name of liberty
applied to such a government would be a mockery of common sense.
[Footnote 18] "
Page 381 U. S. 445
Thus, the Bill of Attainder Clause not only was intended as one
implementation of the general principle of fractionalized power, but also
reflected the Framers' belief that the Legislative Branch is not so well suited
as politically independent judges and juries to the task of ruling upon the
blameworthiness, of, and levying appropriate punishment upon, specific
persons.
"Everyone must concede that a legislative body, from its numbers and
organization, and from the very intimate dependence of its members upon
the people, which renders them liable to be peculiarly susceptible to popular
clamor, is not properly constituted to try with coolness, caution, and
impartiality a criminal charge, especially in those cases in which the popular
feeling is strongly excited -- the very class of cases most likely to be
prosecuted by this mode. [Footnote 19] "
Page 381 U. S. 446
By banning bills of attainder, the Framers of the Constitution sought to guard
against such dangers by limiting legislatures to the task of rulemaking.
"It is the peculiar province of the legislature to prescribe general rules for the
government of society; the application of those rules to individuals in society
would seem to be the duty of other departments."
Fletcher v. Peck, 6 Cranch 87, 10 U. S. 136. [Footnote 20]

"in a representative republic . . . where the legislative power is exercised by

an assembly . . . which is sufficiently numerous to feel all the passions which
actuate a multitude; yet

Page 381 U. S. 447

Page 381 U. S. 444

It is in this spirit that the Bill of Attainder Clause was consistently

interpreted by this Court -- until the decision in American Communications
Ass'n v. Douds, 339 U. S. 382, which we shall consider hereafter. In 1810,
Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch
87, 10 U. S. 138, stated that "[a] bill of attainder may affect the life of an
individual, or may confiscate his property, or may do both." This means, of
course, that what were known at common law as bills of pains and penalties
are outlawed by the Bill of Attainder Clause. The Court's pronouncement
therefore served notice that the Bill of Attainder Clause was not to be given a
narrow historical reading (which would exclude bills of pains and penalties),
but was instead to be read in light of the evil the Framers had sought to bar:
legislative punishment, of any form or severity, of specifically designated
persons or groups. See also Ogden v. Saunders, 12 Wheat. 213, 25 U. S. 286.

not so numerous as to be incapable of pursuing the objects of its passions . . .

,"
barriers had to be erected to ensure that the legislature would not overstep
the bounds of its authority and perform the functions of the other
departments. [Footnote 17] The Bill of Attainder Clause was regarded as
such a barrier. Alexander Hamilton wrote:
"Nothing is more common than for a free people, in times of heat and
violence, to gratify momentary passions by letting into the government
principles and precedents which afterwards prove fatal to themselves. Of this
kind is the doctrine of disqualification, disfranchisement, and banishment by
acts of the legislature. The dangerous consequences of this power are
manifest. If the legislature can disfranchise any number of citizens at

The approach which Chief Justice Marshall had suggested was followed in
the twin post-Civil War cases of Cummings v. Missouri, 4 Wall. 277, and Ex
parte Garland, 4 Wall. 333. Cummings involved the constitutionality of
amendments to the Missouri Constitution of 1865 which provided that no
one could engage in a number of specified professions (Cummings was a
priest) unless he first swore that he had taken no part in the rebellion against
the Union. At issue in Garland was a federal statute which required attorneys
to take a similar oath before they could practice in federal courts. This Court
struck down both provisions as bills of attainder on the ground that they
were legislative acts inflicting punishment on a specific group: clergymen
and lawyers who had taken part in the rebellion and therefore could not
truthfully take the oath. In reaching its result, the Court emphatically rejected
the argument that the constitutional
Page 381 U. S. 448
prohibition outlawed only a certain class of legislatively imposed penalties:
"The deprivation of any rights, civil or political, previously enjoyed, may be
punishment, the circumstances attending and the causes of the deprivation
determining this fact. Disqualification from office may be punishment, as in
cases of conviction upon impeachment. Disqualification from the pursuits of
a lawful avocation, or from positions of trust, or from the privilege of
appearing in the courts, or acting as an executor, administrator, or guardian,
may also, and often has been, imposed as punishment."
4 Wall. at 71 U. S. 320.
The next extended discussion of the Bill of Attainder Clause [Footnote 21]
came in 1946, in United States v. Lovett, 328 U. S. 303, where the Court
invalidated 304 of the Urgent Deficiency Appropriation Act, 1943, 57 Stat.
431, 450, which prohibited payment of further salary to three named federal
employees, [Footnote 22] as a bill of attainder.
"[L]egislative acts, no matter what their form, that apply either to named
individuals or to easily ascertainable
Page 381 U. S. 449

II

members of a group in such a way as to inflict punishment on them without a

judicial trial are bills of attainder prohibited by the Constitution. . . . This
permanent proscription from any opportunity to serve the Government is
punishment, and of a most severe type. . . . No one would think that
Congress could have passed a valid law, stating that after investigation it had
found Lovett, Dodd, and Watson 'guilty' of the crime of engaging in
'subversive activities,' defined that term for the first time, and sentenced
them to perpetual exclusion from any government employment. Section 304,
while it does not use that language, accomplishes that result."
Id. at 328 U. S. 315-316. [Footnote 23]

35

III
Under the line of cases just outlined, 504 of the Labor-Management
Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress
undoubtedly possesses power under the Commerce Clause to enact
Page 381 U. S. 450
legislation designed to keep from positions affecting interstate commerce
persons who may use such positions to bring about political strikes. In 504,
however, Congress has exceeded the authority granted it by the Constitution.
The statute does not set forth a generally applicable rule decreeing that any
person who commits certain acts or possesses certain characteristics (acts
and characteristics which, in Congress' view, make them likely to initiate
political strikes) shall not hold union office, and leave to courts and juries the
job of deciding what persons have committed the specified acts or possess
the specified characteristics. Instead, it designates in no uncertain terms the
persons who possess the feared characteristics and therefore cannot hold
union office without incurring criminal liability -- members of the
Communist Party. [Footnote 24]
Communist Party v. Subversive Activities Control Board, 367 U. S. 1, lends
support to our conclusion. That case involved an appeal from an order by the
Control Board ordering the Communist Party to register as a "Communist
action organization," under the Subversive Activities Control Act of 1950, 64
Stat. 987, 50 U.S.C. 781 et seq. (1958 ed.). The definition of "Communist
action organization" which the Board is to apply is set forth in 3 of the Act:
"[A]ny organization in the United States . . . which (i) is substantially
directed, dominated, or controlled by the foreign government or foreign
organization controlling the world Communist movement referred to in
section 2 of this title, and (ii) operates primarily to advance the objectives of
such world
Page 381 U. S. 451
Communist movement. . . ."
64 Stat. 989, 50 U.S.C. 782 (1958 ed.). A majority of the Court rejected the
argument that the Act was a bill of attainder, reasoning that 3 does not
specify the persons or groups upon which the deprivations set forth in the
Act are to be imposed, but instead sets forth a general definition. Although
the Board had determined in 1953 that the Communist Party was a
"Communist action organization," the Court found the statutory definition
not to be so narrow as to insure that the Party would always come within it:
"In this proceeding, the Board has found, and the Court of Appeals has
sustained its conclusion, that the Communist Party, by virtue of the activities
in which it now engages, comes within the terms of the Act. If the Party
should at any time choose to abandon these activities, after it is once
registered pursuant to 7, the Act provides adequate means of relief."
367 U.S. at 367 U. S. 87. The entire Court did not share the view of the
majority that 3's definition constituted rulemaking, rather than
specification. [Footnote 25] See also Garner v. Los Angeles Board, 341 U. S.

716, 341 U. S. 723. However, language incorporated in the majority opinion

indicates that there was agreement on one point: by focusing upon
"the crucial constitutional significance of what Congress did when it rejected
the approach of outlawing the Party by name, and accepted instead a
statutory program regulating not enumerated organizations but designated
activities,"
367 U.S. at 367 U. S. 84-85, the majority clearly implied that, if the Act had
applied to the Communist Party by name, it would have been a bill of
attainder:
"The Act is not a bill of attainder. It attaches not to specified organizations,
but to described activities
Page 381 U. S. 452
in which an organization may or may not engage. . . . The Subversive
Activities Control Act . . . requires the registration only of organizations
which, after the date of the Act, are found to be under the direction,
domination, or control of certain foreign powers and to operate primarily to
advance certain objectives. This finding must be made after full
administrative hearing, subject to judicial review which opens the record for
the reviewing court's determination whether the administrative findings as to
fact are supported by the preponderance of the evidence."
Id. at 367 U. S. 86-87. [Footnote 26] In this case, no disagreement over
whether the statute in question designates a particular organization can arise,
for 504, in terms, inflicts its disqualification upon members of the
Communist Party. The moment 504 was enacted, respondent was given the
choice of declining a leadership position in his union or incurring criminal
liability.
Page 381 U. S. 453
The Solicitor General points out that, in Board of Governors v. Agnew, 329
U. S. 441, this Court applied 32 of the Banking Act of 1933, which
provides:
"No officer, director, or employee of any corporation or unincorporated
association, no partner or employee of any partnership, and no individual,
primarily engaged in the issue, flotation, underwriting, public sale, or
distribution at wholesale or retail, or through syndicate participation, of
stocks, bonds, or other similar securities, shall serve the same time as an
officer, director, or employee of any member bank except in limited classes
of cases in which the Board of Governors of the Federal Reserve System
may allow such service by general regulations when, in the judgment of the
said Board, it would not unduly influence the investment policies of such
member bank or the advice it gives its customers regarding investments.
[Footnote 27]"
He suggests that, for purposes of the Bill of Attainder Clause, such conflict
of interest laws [Footnote 28] are not meaningfully distinguishable from the
statute before us. We find this argument without merit. First, we note that
504, unlike 32 of the Banking Act, inflicts its deprivation upon the
members of a political group thought to present a threat to the national

security. As we noted above, such groups were the targets of the

overwhelming majority of English and early American bills of attainder.
Second, 32 incorporates no judgment censuring or condemning
Page 381 U. S. 454
any man or group of men. In enacting it, Congress relied upon its general
knowledge of human psychology, and concluded that the concurrent holding
of the two designated positions would present a temptation to any man -- not
just certain men or members of a certain political party. Thus, insofar as 32
incorporates a condemnation, it condemns all men. Third, we cannot accept
the suggestion that 32 constitutes an exercise in specification, rather than
rulemaking. It seems to us clear that 32 establishes an objective standard of
conduct. Congress determined that a person who both (a) held a position in a
bank which could be used to influence the investment policies of the bank or
its customers, and (b) was in a position to benefit financially from
investment in the securities handled by a particular underwriting house,
might well be tempted to
"use his influence in the bank to involve it or its customers in securities
which his underwriting house has in its portfolio or has committed itself to
take."
329 U.S. at 329 U. S. 447. In designating bank officers, directors and
employees as those persons in position (a), and officers, directors, partners
and employees of underwriting houses as those persons in position (b),
Congress merely expressed the characteristics it was trying to reach in an
alternative, shorthand way. [Footnote 29] That Congress was legislating with
Page 381 U. S. 455
respect to general characteristics, rather than with respect to a specific group
of men, is well demonstrated by the fact that 32 provides that the
prescribed disqualification should not obtain whenever the Board of
Governors determined that
"it would not unduly influence the investment policies of such member bank
or the advice it gives its customers regarding investments."
We do not suggest that such an escape clause is essential to the
constitutionality of 32, but point to it only further to point up the infirmity
of the suggestion that 32, like 504, incorporates an empirical judgment
of, and inflicts its deprivation upon, a particular group of men.
It is argued, however, that, in 504, Congress did no more than it did in
enacting 32: it promulgated a general rule to the effect that persons
possessing characteristics which make them likely to incite political strikes
should not hold union office, and simply inserted in place of a list of those
characteristics an alternative, shorthand criterion -- membership in the
Communist Party. Again, we cannot agree. The designation of Communists
as those persons likely to cause political strikes is not the substitution of a
semantically equivalent phrase; on the contrary, it rests, as the Court
in Douds explicitly recognized, 339 U.S. at 339 U. S. 389, upon an empirical
investigation by Congress of the acts, characteristics and propensities of
Communist Party members. In a number of decisions, this Court has pointed
36

out the fallacy of the suggestion that membership in the Communist Party, or
any other political organization, can be regarded as an alternative, but
equivalent, expression for a list of undesirable characteristics. For, as the
Court noted in Schneiderman v. United States, 320 U. S. 118, 320 U. S. 136,
"under our traditions, beliefs are personal, and not a matter of mere
association, and . . . men, in adhering to a political party or other
organization, notoriously do not subscribe unqualifiedly
Page 381 U. S. 456
to all of its platforms or asserted principles. [Footnote 30]"
Just last Term, in Aptheker v. Secretary of State, 378 U. S. 500, we held 6
of the Subversive Activities Control Act to violate the Constitution because it
"too broadly and indiscriminately" restricted constitutionally protected
freedoms. One of the factors which compelled us to reach this conclusion
was that 6 inflicted its deprivation upon all members of the Communist
organizations without regard to whether there existed any demonstrable
relationship between the characteristics of the person involved and the evil
Congress sought to eliminate. Id. at 378 U. S. 509-511. These cases are
relevant to the question before us. Even assuming that Congress had reason
to conclude that some Communists would use union positions to bring about
political strikes, "it cannot automatically be inferred that all members shar[e]
their evil purposes or participat[e] in their illegal conduct." Schware v. Board
of Bar Examiners, 353 U. S. 232, 353 U. S. 246. In utilizing the term
"members of the Communist Party" to designate those persons who are
likely to incite political strikes, it plainly is not the case that Congress has
merely substituted a convenient shorthand term for a list of the
characteristics it was trying to reach. [Footnote 31]
IV
The Solicitor General argues that 504 is not a bill of attainder, because the
prohibition it imposes does not constitute "punishment." In support of this
conclusion, he urges that the statute was enacted for preventive, rather
Page 381 U. S. 457
than retributive reasons -- that its aim is not to punish Communists for what
they have done in the past, but rather to keep them from positions where they
will in the future be able to bring about undesirable events. He relies
on American Communications Ass'n v. Douds, 339 U. S. 382, which upheld
9(h) of the National Labor Relations Act, the predecessor of the statute
presently before us. In Douds, the Court distinguished Cummings,
Garland, and Lovett on the ground that, in those cases
"the individuals involved were in fact being punished for past actions,
whereas, in this case, they are subject to possible loss of position only
because there is substantial ground for the congressional judgment that their
beliefs and loyalties will be transformed into future conduct."
Id. at 339 U. S. 413.

This case is not necessarily controlled by Douds. For, to prove its assertion
that 9(h) was preventive, rather than retributive, in purpose, [Footnote 32]
the Court in Douds focused
Page 381 U. S. 458
on the fact that members of the Communist Party could escape from the
class of persons specified by Congress simply by resigning from the Party:
"Here, the intention is to forestall future dangerous acts; there is no one who
may not by a voluntary alteration of the loyalties which impel him to action,
become eligible to sign the affidavit. We cannot conclude that this section is
a bill of attainder."
Id. at 339 U. S. 414.
Section 504, unlike 9(h), disqualifies from the holding of union office not
only present members of the Communist Party, but also anyone who has,
within the past five years, been a member of the Party. However, even if we
make the assumption that the five-year provision was inserted not out of
desire to visit retribution, but purely out of a belief that failure to include it
would lead to pro forma resignations from the Party which would not
decrease the threat of political strikes, it still clearly appears that 504
inflicts "punishment" within the meaning of the Bill of Attainder Clause. It
would be archaic to limit the definition of "punishment" to "retribution."
Punishment serves several purposes; retributive, rehabilitative, deterrent -and preventive. One of the reasons society imprisons those convicted of
crimes is to keep them from inflicting future harm, but that does not make
imprisonment any the less punishment.
Historical considerations by no means compel restriction of the bill of
attainder ban to instances of retribution. A number of English bills of
attainder were enacted for preventive purposes -- that is, the legislature made
a judgment, undoubtedly based largely on past acts and associations (as
504 is), [Footnote 33] that a given person or group was likely to cause
trouble (usually, overthrow the
Page 381 U. S. 459
government), and therefore inflicted deprivations upon that person or group
in order to keep it from bringing about the feared event. [Footnote 34] It is
also clear that many of the early American bills attainting the Tories were
passed in order to impede their effectively resisting the Revolution.
"In the progress of the conflict, and particularly in its earliest periods,
attainder and confiscation had been resorted to generally, throughout the
continent, as a means of war. But it is a fact important to the history of the
revolting colonies that the acts prescribing penalties usually offered to the
persons against whom they were directed the option of avoiding them by
acknowledging their allegiance to the existing governments."
"It was a preventive, not a vindictive, policy. In the same humane spirit, as
the contest approached its close, and the necessity of these severities
diminished, many of the states passed laws offering pardons
Page 381 U. S. 460

to those who had been disfranchised, and restoring them to the enjoyment of
their property. . . . [Footnote 35]"
Thus, Justice Iredell was on solid historical ground when he observed,
in Calder v. Bull, 3 Dall. 386, 3 U. S. 399-400, that "attainders, on the
principle of retaliation and proscription, have marked all the vicissitudes of
party triumph." (Emphasis supplied.)
We think that the Court in Douds misread United States v. Lovett when it
suggested, 339 U.S. at 339 U. S. 413, that that case could be distinguished
on the ground that the sanction there imposed was levied for purely
retributive reasons. In Lovett,the Court, after reviewing the legislative
history of 304 of the Urgent Deficiency Appropriation Act, 328 U.S. at 328
U. S. 308-313, concluded that the statute was the product of a congressional
drive to oust from government persons whose (congressionally determined)
"subversive" tendencies made their continued employment dangerous to the
national welfare:
"the purpose of all who sponsored Section 304 . . . clearly was to 'purge' the
then existing and all future lists of Government employees of those whom
Congress deemed guilty of 'subversive activities,' and therefore 'unfit' to hold
a federal job."
Id. at 328 U. S. 314. Similarly, the purpose of the statute before us is to
purge the governing boards of labor unions of those whom Congress regards
as guilty of subversive acts and associations, and therefore unfit to fill
positions which might affect interstate commerce. [Footnote 36]
Page 381 U. S. 461
The Solicitor General urges us to distinguish Lovett on the ground that the
statute struck down there "singled out three identified individuals." It is, of
course, true that 504 does not contain the words "Archie Brown," and that
it inflicts its deprivation upon more than three people. However, the
decisions of this Court, as well as the historical background of the Bill of
Attainder Clause, make it crystal clear that these are distinctions without a
difference. It was not uncommon for English acts of attainder to inflict their
deprivations upon relatively large groups of people, [Footnote 37] sometimes
by description, rather than name. [Footnote 38] Moreover, the statutes
voided in Cummings and Garland were of this nature. [Footnote 39] We
cannot agree that the fact that 504 inflicts its deprivation upon the
membership of the Communist Party, rather than upon a list of named
individuals, takes it out of the category of bills of attainder.
We do not hold today that Congress cannot weed dangerous persons out of
the labor movement, any more than the Court held in Lovett that subversives
must be permitted to hold sensitive government positions. Rather, we make
again the point made in Lovett: that Congress must accomplish such results
by rules of general applicability. It cannot specify the people upon whom the
sanction it prescribes is to be levied. Under our Constitution, Congress
possesses full legislative authority, but the task of adjudication must be left
to other tribunals.
Page 381 U. S. 462
37

This Court is always reluctant to declare that an Act of Congress violates the
Constitution, but, in this case, we have no alternative. As Alexander
Hamilton observed:
"By a limited constitution, I understand one which contains certain specified
exceptions to the legislative authority; such, for instance, as that it shall pass
no bills of attainder, no ex post facto laws, and the like. Limitations of this
kind can be preserved in practice no other way than through the medium of
the courts of justice, whose duty it must be to declare all acts contrary to the
manifest tenor of the constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing. [Footnote 40]"
The judgment of the Court of Appeals is
Affirmed.

38

EN
[G.R.

BANC
No.

116437.

March

3,

1997.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PABLITO

ANDAN
y
HERNANDEZ
@
BOBBY, Accused-Appellant.
The

Solicitor

General

for Plaintiff-Appellee.

Miguel P. Pineda for Accused-Appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF THE

ACCUSED UNDER CUSTODIAL INVESTIGATION; RATIONALE FOR
THE EXCLUSION RULE THEREON. Any person under investigation
for the commission of an offense shall have the right (1) to remain silent; (2)
to have competent and independent counsel preferably of his own choice;
and (3) to be informed of such rights. These rights cannot be waived except
in writing and in the presence of counsel. Any confession or admission
obtained in violation of this provision is inadmissible in evidence against
him. The exclusionary rule is premised on the presumption that the
defendant is thrust into an unfamiliar atmosphere and runs through menacing
police interrogation procedures where the potentiality for compulsion,
physical and psychological, is forcefully apparent. The incommunicado
character of custodial interrogation or investigation also obscure a later
judicial
determination
of
what
really
transpired.
2. ID.; ID.; ID.; BEGINS WHEN THE INVESTIGATION STARTS TO
FOCUS ON A PARTICULAR PERSON AS A SUSPECT. It should be
stressed that the rights under Section 12 are accorded to" [a]ny person under
investigation for the commission of an offense." An investigation begins
when it is no longer a general inquiry into an unsolved crime but starts to
focus on a particular person as a suspect, i.e., when the police investigator
starts interrogating or exacting a confession from the suspect in connection
with an alleged offense. As intended by the 1971 Constitutional Convention,
this covers "investigation conducted by police authorities which will include
investigations conducted by the municipal police, the PC and the NBI and
such other police agencies in our government."cralaw virtua1aw library
3. ID.; ID.; ID.; EXCLUSIONARY RULE; NOT APPLICABLE TO THE
SPONTANEOUS STATEMENT MADE BY THE ACCUSED WHICH
WERE NOT ELICITED THROUGH QUESTIONING BY THE
AUTHORITIES; CASE AT BAR. Under the circumstances in this case, it
cannot be successfully claimed that appellants confession before the mayor
is inadmissible. It is true that a municipal mayor has "operational supervision
and control" over the local police and may arguably be deemed a law
enforcement officer for purposes of applying Section 12 (1) and (3) of

Article III of the Constitution. However, appellants confession to the mayor

was not made in response to any interrogation by the latter. In fact, the
mayor did not question appellant at all. No police authority ordered appellant
to talk to the mayor. It was appellant himself who spontaneously, freely and
voluntarily sought the mayor for a private meeting. The mayor did not know
that appellant was going to confess his guilt to him. When appellant talked
with the mayor as a confidant and not as a law enforcement officer, his
uncounseled confession to him did not violate his constitutional rights. Thus,
it has been held that the constitutional procedures on custodial investigation
do not apply to a spontaneous statement, not elicited through questioning by
the authorities, but given in an ordinary manner whereby appellant orally
admitted having committed the crime. What the Constitution bars is the
compulsory disclosure of incriminating facts or confessions. The rights
under Section 12 are guaranteed to preclude the slightest use of coercion by
the state as would lead the accused to admit something false, not to prevent
him from freely and voluntarily telling the truth. Hence, we hold that
appellants confession to the mayor was correctly admitted by the trial court.
4. ID.; ID.; ID.; ID.; NOT APPLICABLE TO CONFESSIONS MADE BY
THE ACCUSED IN RESPONSE TO QUESTIONS BY NEWS
REPORTERS; CASE AT BAR. Appellants confessions to the media
were likewise properly admitted. The confessions were made in response to
questions by news reporters, not by the police or any other investigating
officer. We have held that statements spontaneously made by a suspect to
news reporters on a televised interview are deemed voluntary and are
admissible in evidence. Clearly, appellants confessions to the news reporters
were given free from any undue influence from the police authorities. The
news reporters acted as news reporters when they interviewed appellant.
They were not acting under the direction and control of the police. They
were there to check appellants confession to the mayor. They did not force
appellant to grant them an interview and reenact the commission of the
crime. In fact, they asked his permission before interviewing him. They
interviewed him on separate days not once did appellant protest his
innocence. Instead, he repeatedly confessed his guilt to them. He even
supplied all the details in the commission of the crime, and consented to its
reenactment. All his confessions to the news reporters were witnessed by his
family and other relatives. There was no coercive atmosphere in the
interview
of
appellant
by
the
news
reporters.
5. ID.; ID.; ID.; ID.; ID.; RATIONALE. We rule that appellants verbal
confessions to the newsmen are not covered by Section 12 (1) and (3) of
Article III of the Constitution. The Bill of Rights does not concern itself with
the relation between a private individual and another individual. It governs
the relationship between the individual and the State. The prohibitions
therein are primarily addressed to the State and its agents. They confirm that
certain rights of the individual exist without need of any governmental grant,
rights that may not be taken away by government, rights that government has
the duty to protect. Governmental power is not unlimited and the Bill of
Rights lays down these limitations to protect the individual against
aggression and unwarranted interference by any department of government
and
its
agencies.

6. CRIMINAL LAW; RAPE; ABSENCE OF SPERMATOZOA DOES NOT

NEGATE THE COMMISSION THEREOF. We have also ruled in the
past that the absence of spermatozoa in the vagina does not negate the
commission of rape nor does the lack of complete penetration or rupture of
the hymen. What is essential is that there be penetration of the female organ
no matter how slight.

DECISION

PER CURIAM:

Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of

the crime of rape with homicide committed as follows:
"That on or about the 19th day of February 1994, in the municipality of
Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd design, by means of
violence and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of one Marianne Guevarra y Reyes
against her will and without her consent; and the above-named accused in
order to suppress evidence against him and delay (sic) the identity of the
victim, did then and there wilfully, unlawfully and feloniously, with intent to
kill the said Marianne Guevarra y Reyes, attack, assault and hit said victim
with concrete hollow blocks in her face and in different parts of her body,
thereby inflicting upon her mortal wounds which directly caused her death.
Contrary

to

Law."

The prosecution established that on February 19, 1994 at about 4:00 P.M., in
Concepcion Subdivision, Baliuag, Bulacan, Marianne Guevarra, twenty
years of age and a second-year student at the Fatima School of Nursing, left
her home for her school dormitory in Valenzuela, Metro Manila. She was to
prepare for her final examinations on February 21, 1994. Marianne wore a
striped blouse and faded denim pants and brought with her two bags
containing her school uniforms, some personal effects and more than
P2,000.00
in
cash.
Marianne was walking along the subdivision when appellant invited her
inside his house. He used the pretext that the blood pressure of his wifes
grandmother should be taken. Marianne agreed to take her blood pressure as
the old woman was her distant relative. She did not know that nobody was
inside the house. Appellant then punched her in the abdomen, brought her to
the kitchen and raped her. His lust sated, appellant dragged the unconscious
girl to an old toilet at the back of the house and left her there until dark.
Night came and appellant pulled Marianne, who was still unconscious, to
their backyard. The yard had a pigpen bordered on one side by a six-foot
high concrete fence. On the other side was a vacant lot. Appellant stood on a
39

bench beside the pigpen and then lifted and draped the girls body over the
fence to transfer it to the vacant lot. When the girl moved, he hit her head
with a piece of concrete block. He heard her moan and hit her again on the
face. After silence reigned, he pulled her body to the other side of the fence,
dragged it towards a shallow portion of the lot and abandoned it. 2
At 11:00 A.M. of the following day, February 20, 1994, the body of
Marianne was discovered. She was naked from the chest down with her
brassiere and T-shirt pulled toward her neck. Nearby was found a panty with
a
sanitary
napkin.

5.1

"1.

Abrasions:chanrob1es

virtual

1aw

Abrasions/contusions:chanrob1es

virtual

1aw

library

2.1

temple,

right.

2.2

cheek,

right.

2.3

upper

and

2.4

breast,

upper

2.5

breast,

upper

lower
inner

jaws,

right.

quadrant,

right.

outer

quadrant,

left.

2.6 abdomen, just above the umbilicus, rectangular, approximate 3 inches in

width,
from
right
MCL
to
left
AAL.
2.7.
3.
3.1
3.2
3.3
4.
4.1

elbow

joint,

Hematoma:chanrob1es
upper
temple,

and

lateral

upper
Lacerated
eyebrow,

to

posterior,
virtual
lower

the

and

outer

1aw

of

lower

wounds:chanrob1es
lateral

bilateral.
library

eyelids,
edge

6. Cerebral contusions, inferior surface, temporal and frontal lobes, right.

7.

border,

eyebrow,

right.

1aw

right,

right.

1/2

library
inch.

4.2 face, from right cheek below the zygoma to midline lower jaw, 4 inches.
5.

Fractures:chanrob1es

virtual

External
minimal

genitalia
blood

present.

7.2 no signs of recent physical injuries noted on both labia, introitus and
exposed
vaginal
wall.
8. Laboratory examination of smear samples from the vaginal cavity showed
negative for spermatozoa (Bulacan Provincial Hospital, February 22, 1994,
by
Dr.
Wilfredo
S.
de
Vera).
CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions
due
to
Traumatic
Injuries,
Face."
3
Mariannes gruesome death drew public attention and prompted Mayor
Cornelio Trinidad of Baliuag to form a crack team of police officers to look
for the criminal. Searching the place where Mariannes body was found, the
policemen recovered a broken piece of concrete block stained with what
appeared to be blood. They also found a pair of denim pants and a pair of
shoes
which
were
identified
as
Mariannes.
4
Appellants nearby house was also searched by the police who found
bloodstains on the wall of the pigpen in the backyard. They interviewed the
occupants of the house and learned from Romano Calma, the stepbrother of
appellants wife, that accused-appellant also lived there but that he, his wife
and son left without a word. Calma surrendered to the police several articles
consisting of pornographic pictures, a pair of wet short pants with some
reddish brown stain, a towel also with the stain, and a wet T-shirt. The
clothes were found in the laundry hamper inside the house and allegedly
belonged
to
appellant.
5

bilateral.

jaws,
virtual

right.

library

1.1 chest and abdomen, multiple, superficial, linear, generally oblique from
right
to
left.
2.

bone,

5.2 mandible, multiple, complete, right, with avulsion of 1st and 2nd
incisors.

7.1
The autopsy conducted by Dr. Alberto Bondoc revealed that Marianne died
of
"traumatic
injuries"
sustained
as
follows:

maxillary

1aw

library

The police tried to locate appellant and learned that his parents live in
Barangay Tangos, Baliuag, Bulacan. On February 24 at 11:00 P.M., a police
team led by Mayor Trinidad traced appellant in his parents house. They took
him aboard the patrol jeep and brought him to the police headquarters where
he was interrogated. Initially, appellant denied any knowledge of Mariannes
death. However, when the police confronted him with the concrete block, the
victims clothes and the bloodstains found in the pigpen, appellant relented
and said that his neighbors, Gilbert Larin and Reynaldo Dizon, killed
Marianne and that he was merely a lookout. He also said that he knew where
Larin and Dizon hid the two bags of Marianne. 6 Immediately, the police
took appellant to his house. Larin and Dizon, who were rounded up earlier,
were likewise brought there by the police. Appellant went to an old toilet at

the back of the house, leaned over a flower pot and retrieved from a canal
under the pot, two bags which were later identified as belonging to
Marianne. Thereafter, photographs were taken of appellant and the two other
suspects
holding
the
bags.
7
Appellant and the two suspects were brought back to the police headquarters.
The following day, February 25, a physical examination was conducted on
the suspects by the Municipal Health Officer, Dr. Orpha Patawaran. 8
Appellant
was
found
to
sustain:
"HEENT: with multiple scratches on the neck Rt side. Chest and back: with
abrasions (scratches at the back). Extremities: freshly-healed wound along
index
finger
1.5
cm.
in
size
Lt."
9
By this time, people and media representatives were already gathered at the
police headquarters awaiting the results of the investigation. Mayor Trinidad
arrived and proceeded to the investigation room. Upon seeing the mayor,
appellant approached him and whispered a request that they talk privately.
The mayor led appellant to the office of the Chief of Police and there,
appellant broke down and said "Mayor, patawarin mo ako! I will tell you the
truth. I am the one who killed Marianne." The mayor opened the door of the
room to let the public and media representatives witness the confession. The
mayor first asked for a lawyer to assist appellant but since no lawyer was
available he ordered the proceedings photographed and videotaped. 10 In the
presence of the mayor, the police, representatives of the media and
appellants own wife and son, appellant confessed his guilt. He disclosed
how he killed Marianne and volunteered to show them the place where he
hid her bags. He asked for forgiveness from Larin and Dizon whom he
falsely implicated saying he did it because of ill-feelings against them. 11 He
also said that the devil entered his mind because of the pornographic
magazines and tabloid he read almost everyday. 12 After his confession,
appellant hugged his wife and son and asked the mayor to help him. 13 His
confession was captured on videotape and covered by the media nationwide.
14
Appellant was detained at the police headquarters. The next two days,
February 26 and 27, more newspaper, radio and television reporters came.
Appellant was again interviewed and he affirmed his confession to the
mayor
and
reenacted
the
crime.
15
On arraignment, however, appellant entered a plea of "not guilty." He
testified that in the afternoon of February 19, 1994 he was at his parents
house in Barangay Tangos attending the birthday party of his nephew. He,
his wife and son went home after 5:00 P.M. His wife cooked dinner while he
watched their one-year old son. They all slept at 8:00 P.M. and woke up the
next day at 6:00 in the morning. His wife went to Manila to collect some
debts while he and his son went to his parents house where he helped his
father cement the floor of the house. His wife joined them in the afternoon
and they stayed there until February 24, 1994 when he was picked up by the
police.
16
40

Appellant was brought by the police to a hotel at Bagong Nayon, Baliuag. In

one of the rooms, the policemen covered his face with a bedsheet and kicked
him repeatedly. They coerced him to confess that he raped and killed
Marianne. When he refused, they pushed his head into a toilet bowl and
injected something into his buttocks. Weakened, appellant confessed to the
crime. Thereafter, appellant was taken to his house where he saw two of his
neighbors, Larin and Dizon. He was ordered by the police to go to the old
toilet at the back of the house and get two bags from under the flower pot.
Fearing for his life, appellant did as he was told. 17awlibrary
In a decision dated August 4, 1994, the trial court convicted appellant and
sentenced him to death pursuant to Republic Act No. 7659. The trial court
also ordered appellant to pay the victims heirs P50,000.00 as death
indemnity, P71,000.00 as actual burial expenses and P100,000.00 as moral
damages,
thus:

news reporters to whom appellant gave his extrajudicial oral confessions. It

was also based on photographs and video footages of appellants confessions
and
reenactments
of
the
commission
of
the
crime.
Accused-appellant assails the admission of the testimonies of the policemen,
the mayor and the news reporters because they were made during custodial
investigation without the assistance of counsel. Section 12, paragraphs (1)
and
(3)
of
Article
III
of
the
Constitution
provides:
"SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel 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

SO

ORDERED."

18

This case is before us on automatic review in accordance with Section 22 of

Republic Act No. 7659 amending Article 47 of the Revised Penal Code.
Appellant

contends

that:

"I THE LOWER COURT ERRED IN ADMITTING AND USING AS

BASIS OF JUDGMENT OF CONVICTION THE TESTIMONIES OF THE
POLICE INVESTIGATORS, REPORTERS AND THE MAYOR ON THE
ALLEGED ADMISSION OF THE ACCUSED DURING THE
CUSTODIAL INVESTIGATION, THE ACCUSED NOT BEING
ASSISTED BY COUNSEL IN VIOLATION OF THE CONSTITUTION;
II THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE
WHEN THERE IS NO EVIDENCE OF ANY KIND TO SUPPORT IT;
III THE LOWER COURT ERRED IN MAKING A FINDING OF
CONVICTION WHEN THE EVIDENCE IN ITS TOTALITY SHOWS
THAT THE PROSECUTION FAILED TO PROVE BEYOND
REASONABLE DOUBT THE GUILT OF THE ACCUSED." 19
The trial court based its decision convicting appellant on the testimonies of
the three policemen of the investigating team, the mayor of Baliuag and four

(2)

WITNESS First, the place where Marianne was last found is at the backyard
of the house of the accused. Second, there were blood stains at the pigpen,
and third, when we asked Romano Calma who were his other companions in
the house, he said that, it was Pablito Andan who cannot be found at that
time
and
whose
whereabouts
were
unknown,
sir.
Q

So

you

."cralaw

virtua1aw

possible

suspect?

Yes,
You

went

had

looking

sir.
for

Pablito

Andan?

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

hereof
shall
be
inadmissible
in
evidence
against
him.
(4)

viz:

"COURT How did you come about in concluding that it was accused who
did
this
act?

Q
"WHEREFORE, in view of the foregoing, Pablito Andan y Hernandez alias
"Bobby" is found guilty by proof beyond a scintilla of doubt of the crime
charged in the Information (Rape with Homicide) and penalized in
accordance with R.A. No. 7659 (Death Penalty Law) Sec. 11, Par. 8,
classifying this offense as one of the heinous crimes and hereby sentences
him to suffer the penalty of DEATH; to indemnify the family of Marianne
Guevarra the amount of P50,000.00 for the death of Marianne Guevarra and
P71,000.00 as actual burial and incidental expenses and P100,000.00 as
moral damages. After automatic review of this case and the decision
becomes final and executory, the sentence be carried out.

crime,

library

Plainly, any person under investigation for the commission of an offense

shall have the right (1) to remain silent; (2) to have competent and
independent counsel preferably of his own choice; and (3) to be informed of
such rights. These rights cannot be waived except in writing and in the
presence of counsel. 20 Any confession or admission obtained in violation of
this provision is inadmissible in evidence against him. 21 The exclusionary
rule is premised on the presumption that the defendant is thrust into an
unfamiliar atmosphere and runs through menacing police interrogation
procedures where the potentiality for compulsion, physical and
psychological, is forcefully apparent. 22 The incommunicado character of
custodial interrogation or investigation also obscures a later judicial
determination
of
what
really
transpired.
23
It should be stressed that the rights under Section 12 are accorded to" [a]ny
person under investigation for the commission of an offense." An
investigation begins when it is no longer a general inquiry into an unsolved
crime but starts to focus on a particular person as a suspect, i.e., when the
police investigator starts interrogating or exacting a confession from the
suspect in connection with an alleged offense. 24 As intended by the 1971
Constitutional Convention, this covers "investigation conducted by police
authorities which will include investigations conducted by the municipal
police, the PC and the NBI and such other police agencies in our
government."25cralaw:red
When the police arrested appellant, they were no longer engaged in a general
inquiry about the death of Marianne. Indeed, appellant was already a prime
suspect even before the police found him at his parents house. This is clear
from the testimony of SPO4 Danilo S. Bugay, the police chief investigator of

Yes,
And

then,

what

sir.
else

did

you

do?

A We tried to find out where we can find him and from information we
learned that his parents live in Barangay Tangos in Baliuag. We went there,
found him there and investigated him and in fact during the investigation he
admitted
that
he
was
the
culprit."
26
Appellant was already under custodial investigation when he confessed to
the police. It is admitted that the police failed to inform appellant of his
constitutional rights when he was investigated and interrogated. 27 His
confession is therefore inadmissible in evidence. So too were the two bags
recovered from appellants house. SPO2 Cesar Canoza, a member of the
investigating
team
testified:
"Atty. Valmores: You told the court that you were able to recover these bags
marked as Exhs. B and B-1 because accused pointed to them, where did he
point
these
bags?
A At the police station, sir, he told us that he hid the two (2) bags beneath the
canal
of
the
toilet.
Q In other words, you were given information where these two (2) bags were
located?
A

Yes,

sir.

Q And upon being informed where the two (2) bags could be located what
did
you
do?
A We proceeded to the place together with the accused so that we would
know
where
the
two
(2)
bags
were
hidden,
sir.
41

Q And did you see actually those two (2) bags before the accused pointed to
the
place
where
the
bags
were
located?
A After he removed the broken pots with which he covered the canal, he
really showed where the bags were hidden underneath the canal, sir." 28
The victims bags were the fruits of appellants uncounselled confession to
the police. They are tainted evidence, hence also inadmissible. 29
The police detained appellant after his initial confession. The following day,
Mayor Trinidad visited the appellant. Appellant approached the mayor and
requested for a private talk. They went inside a room and appellant
confessed that he alone committed the crime. He pleaded for forgiveness.
Mayor
Trinidad
testified,
viz:
"Mayor Trinidad: . . . During the investigation when there were already
many people from the media, Andan whispered something to me and
requested that he be able to talk to me alone, so what I did was that, I
brought him inside the office of the chief of police.
Private Prosecutor Principe: And so what happened inside the office of the
Chief
of
Police,
mayor?
A While inside the office of the headquarters he told me "Mayor patawarin
mo ako,! I will tell you the truth. I am the one who killed Marianne." So
when he was telling this to me, I told him to wait a while, then I opened the
door to allow the media to hear what he was going to say and I asked him
again whether he was the one who did it, he admitted it, sir. This was even
covered by a television camera." 30
x

Q During that time that Pablito Andan whispered to you that he will tell you
something and then you responded by bringing him inside the office of the
Chief of Police and you stated that he admitted that he killed Marianne . . .
Court:

He

said

to

you

the

following

words

Atty. Principe: He said to you the following words "Mayor, patawarin mo

ako! Ako ang pumatay kay Marianne," was that the only admission that he
told
you?
A The admission was made twice. The first one was, when we were alone
and the second one was before the media people, sir.
Q What else did he tell you when you were inside the room of the Chief of
Police?
A These were the only things that he told me, sir. I stopped him from making
further admissions because I wanted the media people to hear what he was

going

to

say,

sir."

31

Under these circumstances, it cannot be successfully claimed that appellants

confession before the mayor is inadmissible. It is true that a municipal mayor
has "operational supervision and control" over the local police 32 and may
arguably be deemed a law enforcement officer for purposes of applying
Section 12 (1) and (3) of Article III of the Constitution. However, appellants
confession to the mayor was not made in response to any interrogation by
the latter. 33 In fact, the mayor did not question appellant at all. No police
authority ordered appellant to talk to the mayor. It was appellant himself who
spontaneously, freely and voluntarily sought the mayor for a private meeting.
The mayor did not know that appellant was going to confess his guilt to him.
When appellant talked with the mayor as a confidant and not as a law
enforcement officer, his uncounselled confession to him did not violate his
constitutional rights. 34 Thus, it has been held that the constitutional
procedures on custodial investigation do not apply to a spontaneous
statement, not elicited through questioning by the authorities, but given in an
ordinary manner whereby appellant orally admitted having committed the
crime. 35 What the Constitution bars is the compulsory disclosure of
incriminating facts or confessions. The rights under Section 12 are
guaranteed to preclude the slightest use of coercion by the state as would
lead the accused to admit something false, not to prevent him from freely
and voluntarily telling the truth. 36 Hence we hold that appellants
confession to the mayor was correctly admitted by the trial court.

for raping and killing the victim, sir. And then I asked him whether his
admission was voluntary or that there was a threat, intimidation or violence
that was committed on his person because I knew that there were five other
suspects in this case and he said that he was admitting it voluntarily to the
policemen. I asked him whether he was under the influence of drugs but he
said
no,
and
"nakainom
lang,"
sir.
Q You mentioned earlier that the uncle of the accused was present, was the
uncle beside him at the time that you asked the question?
A The uncle was there including the barangay captain whose name I cannot
recall anymore. A barangay captain of the place, I dont know if it is the
place of the crime scene or in the place where Marianne Guevarra resides but
. . . All throughout the scene inside the office of the Station Commander,
there was no air of any force or any threatening nature of investigation that
was being done on the suspect, that is why, I was able to talk to him freely
and in a voluntary manner he admitted to me that he was the one who raped
and killed, so we went to the next stage of accompanying me to the scene of
the crime where the reenactment and everything that transpired during the
killing
of
Marianne
Guevarra.
Q Before you started that interview, did you inform or ask permission from
the accused Pablito Andan that you were going to interview him?
A Yes, sir.

Appellants confessions to the media were likewise properly admitted. The

confessions were made in response to questions by news reporters, not by
the police or any other investigating officer. We have held that statements
spontaneously made by a suspect to news reporters on a televised interview
are deemed voluntary and are admissible in evidence. 37
The records show that Alex Marcelino, a television reporter for "Eye to Eye"
on Channel 7, interviewed appellant on February 27, 1994. The interview
was recorded on video and showed that appellant made his confession
willingly, openly and publicly in the presence of his wife, child and other
relatives. 38 Orlan Mauricio, a reporter for "Tell the People" on Channel 9
also interviewed appellant on February 25, 1994. He testified that:
"Atty. Principe: You mentioned awhile ago that you were able to reach the
place where the body of Marianne was found, where did you start your
interview,
in
what
particular
place?
Mr. Mauricio: Actually, I started my news gathering and interview inside the
police station of Baliuag and I identified myself to the accused as I have
mentioned earlier, sir. At first, I asked him whether he was the one who
raped and killed the victim and I also learned from him that the victim was
his
cousin.
Q

And

what

was

the

response

of

Pablito

Andan?

A His response was he is a cousin of the victim and that he was responsible

Q You mentioned that after interviewing the accused at the office of the
Baliuag PNP, you also went to the scene of the crime?
A
Q

Yes,
Who

sir.
accompanied

you?

A I was accompanied by some Baliuag policemen including Mayor Trinidad

and
some
of
the
relatives
of
the
accused.
Q At this time, did you see the wife of the accused, Pablito Andan?
A Yes, sir, I saw her at the place where the body of Guevarra was recovered.
Q How many relatives of accused Pablito Andan were present, more or less?
A There were many, sir, because there were many wailing, weeping and
crying at that time when he was already taken in the patrol jeep of the
Baliuag
police,
sir.
Q Now, Mr. Mauricio, upon reaching the scene of the crime in Concepcion,
Baliuag,
Bulacan,
what
transpired?
42

Court:
A I started my work as a reporter by trying to dig deeper on how the crime
was committed by the accused, so we started inside the pigpen of that old
house where I tried to accompany the accused and asked him to narrate to
me and show me how he carried out the rape and killing of Marianne
Guevarra,
sir.
Q
A

Did
Yes,

sir,

he
in

fact,

voluntarily
I

have

it

on

comply?
my

Yes,

sir.

39

Journalist Berteni Causing of "Peoples Journal Tonite" likewise covered the

proceedings for three successive days. 40 His testimony is as follows:
"Atty. Principe: You mentioned that you had your own inquiries?
A We asked first permission from the mayor to interrupt their own
investigation so that we can have a direct interview with the suspect.
Q

Were

there

people?

A The people present before the crowd that included the mayor, the deputy
chief of police, several of the policemen, the group of Inday Badiday and
several other persons. I asked the suspect after the mayor presented the
suspect to us and after the suspect admitted that he was the one who killed
Marianne. I reiterated the question to the suspect. Are you aware that this
offense which is murder with . . . rape with murder is a capital offense? And
you could be sentenced to death of this? And he said, Yes. So do you really
admit that you were the one who did it and he repeated it, I mean, say the
affirmative
answer.
Q And that was in the presence of the crowd that you mentioned a while
ago?
A Yes, yes, sir. And if I remember it right, as I took my camera to take some
pictures of the suspect, the mayor, the policemen and several others, I heard
the group of Inday Badiday asking the same questions from the suspect and
the
suspect
answered
the
same.
Q Also in the presence of so many people that you mentioned?
A

The

same

group

of

people

who

were

the

vernacular.
Q And when he allowed you to interview him, who were present?

A I asked him the question, after asking him the question," Ikaw ba talaga
and gumawa ng pagpatay at pag-rape sa kay Marianne? Ang sagot nya,
"Oo." "Alam mo ba itong kasalanang ito, kamatayan ang hatol, inaamin mo
pa ba na ikaw ang gumawa sa pagpatay at pag-rape kay Marianne?" Sagot pa
rin siya ng "Oo."cralaw virtua1aw library

A The first person that I saw there was Mayor Trinidad, policemen from
Baliuag, the chief investigator, SPO4 Bugay, and since Katipunan, the chief
of police was suspended, it was the deputy who was there, sir.

Q Were they the only persons who were present when you interviewed the
accused?

Did

videotape.

Q It is clear, Mr. Mauricio, that from the start of your interview at the PNP
Baliuag up to the scene of the crime, all the stages were videotaped by you?
A

Use

there,

sir.

Q You mentioned that the answer was just the same as the accused answered
you affirmatively, what was the answer, please be definite?

you

ask

him,

why

did

you

kill

Marianne?

A There were many people there, sir. The place was crowded with people.
There were people from the PNP and people from Baliuag, sir.

A I asked him, your Honor and the reason he told me was because a devil
gripped his mind and because of that according to him, your Honor, were the
pornographic magazines, pornographic tabloids which he, according to him,
reads
almost
everyday
before
the
crime.

Atty. Principe: At the time of your interview, Mr. Reporter, will you tell the
court and the public what was the physical condition of accused Pablito
Andan?

A As I observed him that time there was no sign on his body that he was
really down physically and I think he was in good condition.

Q You stated that the accused allowed you to interview him, was his wife
also
present?

Court:

A Yes, sir, and even the son was there but I am not very sure if she was really
the wife but they were hugging each other and she was crying and from the
questions that I asked from the people there they told me that she is the wife,
sir.

So
He

he

was

not

even

Court:

happy

about

admitted

it,

He

the

incident?

your

Honor.

was

happy?

How

about

the

other

representatives

from

the

media?

A Roy Reyes, Orlan Mauricio arrived but he arrived late and there were
people
from
the
radio
and
from
TV
Channel
9.
How

about

Channel

7?

A They came late. I was the one who got the scoop first, sir.

it.

Q How about the other members of the family of the accused, were they
around?

crying?

A I do not know the others, sir, but there were many people there, sir.

A As I observed, your Honor, the tears were only apparent but there was no
tear
that
fell
on
his
face.

Q Now, according to you, you made a news item about the interview. May
we know what question did you ask and the answer.

Court:

A My first question was, is he Pablito Andan and his answer was

"Yes."cralaw
virtua1aw
library

He

admitted

it.

Court:

As

He

was

not

happy

Was

Was
I

observed

doing

he

he
it,

after

it

feeling
was

x"

only

slightly,

remorseful?
your

Honor.
41

Another journalist, Rey Domingo, of "Bandera" interviewed appellant on

February
26,
1994.
42
He
also
testified
that:
"Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give you
the
permission
that
you
asked
from
him?
A

Yes,

sir.

What

was

the

next

question?

A I asked him how he did the crime and he said that, he saw the victim
aboard a tricycle. He called her up. She entered the house and he boxed her
on
the
stomach.
Q

What

was

the

next

question

that

you

asked

him?

A He also said that he raped her and he said that the reason why he killed the
victim was because he was afraid that the incident might be discovered, sir.
43

Q Now, after the interview, are we correct to say that you made a news item
on
that?
A Yes, sir, based on what he told me. Thats what I did.
Q

Were

there

other

questions

propounded

by

Yes,

you?
sir.

"Ano

iyon?"

A He said that he threw the cadaver to the other side of the fence, sir.
Q Did he mention how he threw the cadaver of Marianne to the other side of
the
fence?
A

cannot

remember

the

others,

In his second assigned error, appellant questions the sufficiency of the

medical evidence against him. Dr. Alberto Bondoc, a Medical Specialist with
the Provincial Health Office, conducted the first autopsy and found no
spermatozoa and no recent physical injuries in the hymen. 49 Allegedly, the
minimal blood found in her vagina could have been caused by her
menstruation.
50

sir.

We are unpersuaded. A second autopsy was conducted on March 1, 1994 by

Dr. Dominic L. Aguda, a medico-legal officer of the National Bureau of
Investigation. His findings affirmed the absence of spermatozoa but revealed
that
the
victims
hymen
had
lacerations,
thus:
"Hymen contracted, tall, thin with fresh lacerations with clotted blood at
6 and 3 oclock positions corresponding to the walls of the clock." 51
Dr. Aguda testified that the lacerations were fresh and that they may have
been caused by an object forcibly inserted into the vagina when the victim
was still alive, indicating the possibility of penetration. 52 His testimony is
as
follows:

Yes,

sir.

Q This clotted blood, according to you, found at the edges of the lacerated
wounds, now will you kindly go over the sketch you have just drawn and
indicate the edges of the lacerated wounds where you found the clotted
blood?
A This is the lacerated wound at 3 oclock and this is the lacerated wound at
6 oclock. I found the blood clot at this stage. The clotted blood are found on
the
edges
of
the
lacerated
wounds,
sir.
Q

What

could

have

caused

those

lacerations?

A Well, it could have been caused by an object that is forcibly inserted into
that small opening of the hymen causing lacerations on the edges of the
hymen,
sir.
Q If the victim had sexual intercourse, could she sustain those lacerations?

Q But can you produce the news item based on that interview?
A
x

I
x

have
x"

xerox

copy

here,

sir.

"Witness: When I exposed the hymen, I found lacerations in this 3 oclock

and 6 oclock position corresponding to the walls of the clock. . . .

43

Court:

Clearly, appellants confessions to the news reporters were given free from
any undue influence from the police authorities. The news reporters acted as
news reporters when they interviewed appellant. 44 They were not acting
under the direction and control of the police. They were there to check
appellants confession to the mayor. They did not force appellant to grant
them an interview and reenact the commission of the crime. 45 In fact, they
asked his permission before interviewing him. They interviewed him on
separate days not once did appellant protest his innocence. Instead, he
repeatedly confessed his guilt to them. He even supplied all the details in the
commission of the crime, and consented to its reenactment. All his
confessions to the news reporters were witnessed by his family and other
relatives. There was no coercive atmosphere in the interview of appellant by
the
news
reporters.
We rule that appellants verbal confessions to the newsmen are not covered
by Section 12 (1) and (3) of Article III of the Constitution. The Bill of Rights
does not concern itself with the relation between a private individual and
another individual. 46 It governs the relationship between the individual and
the State. The prohibitions therein are primarily addressed to the State and its
agents. They confirm that certain rights of the individual exist without need
of any governmental grant, rights that may not be taken away by
government, rights that government has the duty to protect. 47
Governmental power is not unlimited and the Bill of Rights lays down these
limitations to protect the individual against aggression and unwarranted
interference by any department of government and its agencies. 48

Include

the

descriptive

word,

fresh.

Witness: I put it in writing that this is fresh because within the edges of the
lacerations, I found blood clot, that is why I put it into writing as fresh.
Atty. Valmonte: Now, Doctor, you told the Court that what you did on the
cadaver was merely a re-autopsy, that means, doctor the body was autopsied
first
before
you
did
you
re-autopsy?
A

Yes,

sir.

Q Could it not be, doctor, that these injuries you found in the vagina could
have been sustained on account of the dilation of the previous autopsy?
A Well, we presumed that if the first doctor conducted the autopsy on the
victim which was already dead, no amount of injury or no amount of
lacerated wounds could produce blood because there is no more circulation,
the circulation had already stopped. So, I presumed that when the doctor
examined the victim with the use of forceps or retractor, vaginal retractor,
then I assumed that the victim was already dead. So it is impossible that the
lacerated wounds on the hymen were caused by those instruments because
the victim was already dead and usually in a dead person we do not produce
any
bleeding.
Q What you would like to tell the Court is this: that the lacerations with
clotted blood at 6 and 3 oclock positions corresponding to the walls of the
clock could have been inflicted or could have been sustained while the
victim
was
alive?

It

is

possible,

sir.

53

We have also ruled in the past that the absence of spermatozoa in the vagina
does not negate the commission rape 54 nor does the lack of complete
penetration or rupture of the hymen. 55 What is essential is that there be
penetration of the female organ no matter how slight. 56 Dr. Aguda testified
that the fact of penetration is proved by the lacerations found in the victims
vagina. The lacerations were fresh and could not have been caused by any
injury
in
the
first
autopsy.
Dr. Agudas finding and the allegation that the victim was raped by appellant
are supported by other evidence, real and testimonial, obtained from an
investigation of the witnesses and the crime scene, viz:chanrob1es virtual
1aw
library
(1) The victim, Marianne, was last seen walking along the subdivision road
near
appellants
house;
57
(2) At that time, appellants wife and her step brother and grandmother were
not
in
their
house;
58
(3) A bloodstained concrete block was found over the fence of appellants
house, a meter away from the wall. Bloodstains were also found on the grass
nearby and at the pigpen at the back of appellants house; 59
(4) The victim sustained bruises and scars indicating that her body had been
dragged over a flat rough surface. 60 This supports the thesis that she was
thrown over the fence and dragged to where her body was found;
(5) Appellants bloodstained clothes and towel were found in the laundry
hamper
in
his
house;
44

(6) The reddish brown stains in the towel and T-shirt of appellant were found
positive for the presence of blood type "B," the probable blood type of the
victim. 61 Mariannes exact blood type was not determined but her parents
had type "A" and type "AB." 62 The victims pants had bloodstains which
were found to be type "O," appellants blood type; 63
(7) Appellant had scratch marks and bruises in his body which he failed to
explain;
64
(8) For no reason, appellant and his wife left their residence after the incident
and were later found at his parents house in Barangay Tangos, Baliuag,
Bulacan;
65
In fine, appellants extrajudicial confessions together with the other
circumstantial
evidence
justify
the
conviction
of Appellant.
Appellants defense of alibi cannot overcome the prosecution evidence. His
alibi cannot even stand the test of physical improbability at the time of the
commission of the crime. Barangay Tangos is only a few kilometers away
from Concepcion Subdivision and can be traversed in less than half an hour.
66
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15,
Malolos, Bulacan in Criminal Case No. 1109-M-94 is affirmed and accusedappellant Pablito Andan y Hernandez is found guilty of the special complex
crime of rape with homicide under Section 11 of Republic Act No. 7659
amending Article 335 of the Revised Penal Code and is sentenced to the
penalty of death, with two (2) members of the Court, however, voting to
impose reclusion perpetua. Accused-appellant is also ordered to indemnify
the heirs of the victim, Marianne Guevarra, the sum of P50,000.00 as civil
indemnity for her death and P71,000.00 as actual damages.
In accordance with Section 25 of Republic Act No. 7659 amending Article
83 of the Revised Penal Code, upon finality of this decision, let the records
of this case be forthwith forwarded to the Office of the President for possible
exercise
of
the
pardoning
power.
SO

ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,

Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban
and Torres, Jr., JJ., concur.

45

SECOND DIVISION
G.R. No. 133026. February 20, 2001
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDWARD
ENDINO (at large) and GERRY GALGARIN alias TOTO, accused.
GERRY GALGARIN alias TOTO, Accused-Appellant.
DECISION
BELLOSILLO, J.:
YIELDING to mans brutish instinct for revenge, Edward Endino, with the
aid of Gerry Galgarin alias Toto, slew Dennis Aquino in the presence of a
lady whose love they once shared.
On a busy street in Puerto Princesa City in the evening of 16 October 1991,
an emboldened Gerry Galgarin, uncle of accused Edward Endino, suddenly
and without warning lunged at Dennis and stabbed him repeatedly on the
chest. Dennis girlfriend Clara Agagas who was with him, stunned by the
unexpected attack, pleaded to Galgarin to stop. Dennis struggled and
succeeded momentarily to free himself from his attacker. Dennis dashed
towards the nearby Midtown Sales but his escape was foiled when from out
of nowhere Edward Endino appeared and fired at Dennis. As Dennis
staggered for safety, the two (2) assailants fled in the direction of the airport.
Meanwhile, Dennis, wounded and bleeding, sought refuge inside the Elohim
Store where he collapsed on the floor. He was grasping for breath and near
death. Clara with the help of some onlookers took him to the hospital but
Dennis expired even before he could receive medical attention. According to
the autopsy report of Dr. Josephine Goh-Cruz, cause of death was "cardiorespiratory arrest secondary to hypovolemic shock secondary to a stab
wound which penetrated the heart." 1crlwvirtualibrry
On 18 October 1991, an Information for the murder of Dennis Aquino was
filed against Edward Endino and accused-appellant Gerry Galgarin and
warrants were issued for their arrest. However, as both accused remained at
large, the trial court issued on 26 December 1991 an order putting the case in
the archives without prejudice to its reinstatement upon their apprehension.
On 19 November 1992, Gerry Galgarin was arrested through the combined
efforts of the Antipolo and Palawan police forces at a house in Sitio Sto. Nio,
Antipolo, Rizal. He was immediately taken into temporary custody by the
Antipolo Police. Early in the evening of the following day, he was fetched
from the Antipolo Police Station by PO3 Gaudencio Manlavi and PO3
Edwin Magbanua of the Palawan police force to be taken to Palawan and be
tried accordingly.
On their way to the airport, they stopped at the ABS-CBN television station
where accused Galgarin was interviewed by reporters. Video footages of the
interview were taken showing Galgarin admitting his guilt while pointing to
his nephew Edward Endino as the gunman. According to Galgarin, after

attacking Aquino, they left for Roxas, Palawan, where his

sister Langging who is Edward's mother, was waiting. Langging gave them
money for their fare for Manila. They took the boat for Batangas, where they
stayed for a few days, and proceeded to Manila where they separated, with
him heading for Antipolo. Galgarin appealed for Edward to give himself up
to the authorities. His interview was shown over the ABS-CBN evening
news program TV Patrol.
The case against accused-appellant Gerry Galgarin was established through
the testimony of Clara Agagas who said that she was with the victim Dennis
Aquino standing outside theSoundlab Recording Studio, a barhouse owned
by him, when Galgarin suddenly approached them and without any prior
warning stabbed Dennis. Dennis tried to run away, but Edward, a spurned
lover who harbored ill-feelings towards her and Dennis, shot Dennis. She
recognized Edward and Gerry because the street was sufficiently
lighted. 2crlwvirtualibrry
The testimony of Clara Agagas was corroborated by Anita Leong, next-door
neighbor of Dennis, who testified that a little past six oclock in the evening
of 16 October 1991 Gerry Galgarin together with a companion went to her
house looking for Dennis. She instructed them to proceed to the Soundlab
Recording Studio as Dennis might still be there. But a few minutes later she
heard a Instinctively, she instructed her two (2) young daughters to duck for
cover while she anxiously waited for her seven (7)-year old daughter
Josephine who was out of the house for an errand for her. Soon enough she
heard Josephine knocking at their door. She was crying because she said
her Kuya Dennis had been shot and stabbed. 3crlwvirtualibrry
Josephine confirmed her mothers testimony and even said that she had seen
Gerry Galgarin stab her Kuya Dennis and she could remember Gerry very
well because of the mole below his nose. 4crlwvirtualibrry
For his part, accused-appellant Gerry Galgarin disclaimed having taking part
in the slaying of Dennis. Gerry asserted that on 14 October 1991 he was in
Antipolo to help his common-law wife Maria Marasigan give birth to their
first born. He stayed with her until the 16th of October when she was
discharged from the Pedragoza Maternity Clinic. 5crlwvirtualibrry
Clarita Florentino Pedragoza, the midwife who delivered his son, supported
the alibi of accused-appellant. However, she admitted that when she
registered the childs birth on 13 December 1993 or more than two (2) years
after the delivery, she informed the civil registrar that the childs father was
"unknown." 6 His story was also confirmed by Dolores Arciaga and Maria
Tomenio, his co-workers at the Kainan sa Kubo Sing Along Restaurant, who
testified that accused-appellant was fetched by a neighbor from the
restaurant in the early afternoon of 14 October with the news that his wife
was having labor pains. 7crlwvirtualibrry
Accused-appellant disowned the confession which he made over TV
Patrol and claimed that it was induced by the threats of the arresting police
officers. He asserted that the videotaped confession was constitutionally

infirmed and inadmissible under the exclusionary rule provided in Sec.12,

Art. III, of the Constitution. 8crlwvirtualibrry
The trial court however admitted the video footages on the strength of the
testimony of the police officers that no force or compulsion was exerted on
accused-appellant and upon a finding that his confession was made before a
group of newsmen that could have dissipated any semblance of hostility
towards him. The court gave credence to the arresting officers assertion that
it was even accused-appellant who pleaded with them that he be allowed to
air his appeal on national television for Edward to surrender.
The alibi of Galgarin was likewise rejected since there was no convincing
evidence to support his allegation that he was not at the locus criminis on the
evening of 16 October 1991. Accordingly, accused-appellant Gerry Galgarin
was convicted of murder qualified by treachery 9 and sentenced to reclusion
perpetua. Additionally, he was ordered to indemnify the heirs of Dennis
Aquino P50,000.00 as compensatory damages and P72,725.35 as actual
damages. The case against his nephew and co-accused Edward Endino
remained in the archives without prejudice to its reinstatement as soon as he
could be arrested. 10crlwvirtualibrry
In his Appellants Brief, Gerry Galgarin assails the trial court for rejecting his
alibi and admitting his videotaped confession as evidence against him.
The argument that accused-appellant could not be at the scene of the crime
on 16 October 1991 as he was in Antipolo assisting his wife who was giving
birth on the 14th of that month, is not persuasive. Alibi is a weak defense.
The testimony of CornelioTejero Jr., 11 Philippine Airlines Load Controller
of the Puerto Princesa City, that the name of "Gerry Galgarin" did not appear
on their passenger manifest for the 16 October 1991 Manila-Puerto Princesa
flight, could not be relied upon inasmuch as he himself admitted that they
could not be sure of their passengers real identities. The testimonies of
accused-appellants co-workers that he was in Antipolo on 14 October 1991
did not fortify his defense either since these witnesses did not categorically
state that they saw him in Antipolo in the evening of 16 October 1991.
With accused-appellant having been positively identified by the prosecution
witnesses as the one who stabbed Dennis, his bare denial proves futile and
unavailing. Josephine Leongs identification of accused-appellant was given
in a very categorical and spontaneous manner. Her confidence as to the
attackers identity was clearly shown by her vivid recollection of him having
a mole below his nose, which is correct. Moreover, it is inconceivable for
Josephine and Anita to implicate accused-appellant, a complete stranger to
them, if there was no truth to their assertion. As for Clara, her naming of
accused-appellant as her boyfriends assailant was not done out of spite, but
was impelled by her desire to seek justice for Dennis.
Corroborating further accused-appellants guilt, probably with intense
incriminating effect, were his immediate flight after the slaying, and his
attempt at jailbreak 12 revealing a guilty conscience, hence, his persistent
effort to evade the clutches of the law.
46

Apropos the court a quos admission of accused-appellants videotaped

confession, we find such admission proper. The interview was recorded on
video and it showed accused-appellant unburdening his guilt willingly,
openly and publicly in the presence of newsmen. Such confession does not
form part of custodial investigation as it was not given to police officers but
to media men in an attempt to elicit sympathy and forgiveness from the
public. Besides, if he had indeed been forced into confessing, he could have
easily sought succor from the newsmen who, in all likelihood, would have
been symphatetic with him. As the trial court stated in its Decision 13-

WHEREFORE , the Decision of the court a quo finding accused-appellant

GERRY GALGARIN alias Toto guilty of Murder qualified by Treachery,
sentencing him to reclusion perpetua, and ordering him to indemnify the
heirs of Dennis Aquino in the amount of P50,000.00 as compensatory
damages and P72,725.35 as actual damages, is AFFIRMED with the
MODIFICATIONthat accused-appellant is further ordered to compensate the
decedents heirs P50,000.00 as moral damages for their emotional and mental
anguish. Costs against accused-appellant.

Furthermore, accused, in his TV interview (Exh. H), freely admitted that he

had stabbed Dennis Aquino, and that Edward Endino had shot him (Aquino).
There is no showing that the interview of accused was coerced or against his
will. Hence, there is basis to accept the truth of his statements therein.

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

SO ORDERED.

Endnotes:

We agree. However, because of the inherent danger in the use of television

as a medium for admitting ones guilt, and the recurrence of this phenomenon
in several cases, 14 it is prudent that trial courts are reminded that extreme
caution must be taken in further admitting similar confessions. For in all
probability, 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. Such a situation would be detrimental to the
guaranteed rights of the accused and thus imperil our criminal justice
system.
We do not suggest that videotaped confessions given before media men by
an accused with the knowledge of and in the presence of police officers are
impermissible. Indeed, the line between proper and invalid police techniques
and conduct is a difficult one to draw, particularly in cases such as this where
it is essential to make sharp judgments in determining whether a confession
was given under coercive physical or psychological atmosphere.
A word of counsel then to lower courts: we should never presume that all
media confessions described as voluntary have been freely given. This type
of confession always remains suspect and therefore should be thoroughly
examined and scrutinized. Detection of coerced confessions is admittedly a
difficult and arduous task for the courts to make. It requires persistence and
determination in separating polluted confessions from untainted ones. We
have a sworn duty to be vigilant and protective of the rights guaranteed by
the Constitution.
With all the evidence tightly ringed around accused-appellant, the question
that next presents itself is whether the trial court correctly denominated the
crime as murder qualified by treachery. Doubtless, the crime committed is
one of murder considering that the victim was stabbed while he was simply
standing on the pavement with his girlfriend waiting for a ride, blissfully
oblivious of the accused's criminal design. The suddenness of the assault on
an unsuspecting victim, without the slightest provocation from him who had
no opportunity to parry the attack, certainly qualifies the killing to
murder. 15crlwvirtualibrry
47

EN BANC
G.R. No. L-38975 January 17, 1980
THE PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON.
EDUARDO P. CAGUIOA Judge, Court of First Instance of Bulacan,
Branch VII, and PAQUITO YUPO, Respondents.
Assistant Provincial Fiscal Amando C. Vicente for petitioner.chanrobles
virtual law library
Edelmiro A. Amante for private respondent.
FERNANDO, C.J.:
It is not easy to make out a case of improvident exercise of authority on
the part of a lower court when the assailed actuation was clearly inspired
by a desire to adhere to the literal and explicit mandate of the
Constitution. That is the difficulty confronting the prosecution when it
filed this certiorari proceeding resulting from respondent Judge Eduardo
P. Caguioa sustaining the objection of the defense to questions asked a
witness based on an alleged extrajudicial admission by an accused
private respondent Paquito Yupo, during a police interrogation conducted
on July 18, 1973, without his having been assisted by counsel. There
was, in the opinion of respondent Judge, a clear failure to abide by the
express prohibition in the fundamental law against the possibility of any
confession obtained from a person under investigation without his
having been informed of his right to keep silent and to have the benefit
of counsel. 1 Clearly then, the leading case of Magtoto v.

and to be assisted by a counsel of his own choice was taken. 6 After this
witness had Identified the statement of the accused and the waiver, he
was questioned on the incriminating answers in such statement to the
police, but there was an objection on the part of the defense counsel
based on the ground of such statement being inadmissible in evidence, as
the statement was taken by the police without any counsel assisting the
accused in the investigation. 7 Respondent Judge sustained the objection
of the defense on the view that such judicial confession of the accused is
inadmissible in evidence for being unconstitutional, it appearing that the
accused was not assisted by a counsel when it was given. 8He likewise
stated that such right could not be waived. 9 Upon his refuse to
reconsider such ruling, this petition was filed.
Certiorari does not lie. The petition must be dismissed. It was not shown
that the alleged waiver was given freely and voluntarily. The questioning
was rather perfunctory. An even more telling circumstance against such
alleged waiver being given credence was that private respondent, a
native of Samar, then nineteen years old, was interrogated extensively in
Tagalog, no showing having been made that his acquaintance with the
language was such that he could fully understand the import of what was
asked him. On the specific question of whether or not the right to
counsel during custodial interrogation interrogation may be waived, the
Court rules that there is no bar to such a waiver if made intelligently and
voluntarily,
with
full
understanding
of
its
consequences.chanroblesvirtualawlibrary chanrobles virtual law library

Manguera 2 does not apply. the interrogation having taken place six
months after the effectivity Of the present Constitution. The prosecution
would deny its applicability, contending that there was a waiver.
Respondent Judge was of the view that this innovation in the
Constitution, intended to buttress and fortify the right against selfincrimination, was not susceptible of waiver. When he remained firm in
his stand, the petition was filed, a grave abuse of discretion being
imputed to him.chanroblesvirtualawlibrary chanrobles virtual law library

1. As far back as Abriol v. Homeres, 10 a 1949 decision, decided under

the 1935 Constitution, which did not contain a provision similar to
Section 20 which adopted the Miranda doctrine, this Court, through
Justice Ozaeta, relying on the leading American case of Johnson v.
Zerbst, 11made clear that while there could be a waiver of the rights of

According to the petition, the Provincial Fiscal of Bulacan filed on

September 14, 1973, in the Court of First Instance of Bulacan, an
information for murder against Paquito Yupo y Gonzales, which was
docketed as Criminal Case No. 146-V-73, with the case, after the raffle,
being assigned to Branch VIII, presided by respondent Judge. 3 Upon

Arizona, 13 decided in 1966, as noted above, the source of this

constitutional provision, emphasized that statements made during the
period of custodial interrogation to be admissible require a clear
intelligent waiver of constitutional rights, the suspect being warned prior
to questioning that he has a right to remain silent, that any utterance may
be used against him and that he has the right to the presence of a counsel,
either retained or appointed. In the language of Chief Justice Warren:
"Our holding win be spelled out with some specificity in the pages
which follow, but briefly stated, it is this: the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated

arraignment on October 5, 1973, the accused pleaded not guilty. 4 The

trial of the case then proceeded, the prosecution having presented six
witnesses, including the father of the deceased, Miguel Tribol, and his
common-law wife, Lydia Begnotia who allegedly received the ante
mortem statement of the victim, Rodolfo Tribol. 5Then, at the hearing on
June 3, 1974, the prosecution presented Corporal Conrado Roca of the
Meycauayan Police Department, before whom a written statement of the
accused Paquito Yupo and his alleged waiver of his right to remain silent

an accused, it must be intelligently waived, otherwise a court's

jurisdiction starting at the banning of the trial may be lost in the course
of the proceeding. 12 The landmark opinion of Miranda v.

by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. As
for the procedural safeguards to be employed, unless other fully effective
means are devised to inform accused persons of their right of silence and
to assure a continuous opportunity to exercise it, the following measures
are required. Prior to any questioning, the person must be warned that he
has a right to remain silent, that any statement he does not make may be
used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed. The defendant may waive
effectuation of those rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he indicates in any manner and
at any stage of the process that he wishes to consult with an attorney
before speaking, there can be no questioning. Likewise, if the individual
is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may
have answered some questions or volunteered some statements on his
own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter
consents to be questioned." 14 chanrobles virtual law library
2. Tested by such a clear and unequivocal standard, the alleged waiver
falls far short. It is clearly inadmissible. There was a perfunctory
opening statement asked by a certain Corporal Conrado B. Roca of the
Police Force of Meycauayan, worded thus: "Ipinaaalam ko sa iyo na
ikaw ay sinisiyasat tungkol sa isang paglabag sa batas na iyong ginawa,
bago ko ipagpatuloy ang pagtatanong sa iyo, ikaw ay may karapatan na
huwag magsalita kung ayaw mo at may karapatan ka rin na magkaroon
ng abogado na iyong gusto at dapat mo ring mabatid na anuman ang
sabihin mo dito ay maaaring gamitin ng ayon o laban sa iyo,
magsasalaysay ka pa rin ba?" 15 Then came the monosyllabic answer
Opo. That was ala Even the very annex submitted to the petition merely
stated that there were signatures of private respondent Yupo, the
aforesaid Roca, and a certain Roberto Sales. The day when it was
subscribed and sworn to, allegedly before Municipal Judge Mariano
Mendieta was not even specified. Again, there was a statement that it
was a certified true copy by a certain Teresita M. Tecson, whose
connection with the case or with the court was not even shown. There
was no signature. There were only illegible letters, perhaps indicating
that they were the initials. The doubt that must have occurred to the
police officials of Meycauayan is evident from their submitting a onepage statement, presumably signed by the same people and certified by
the same Tecson, reading in fun as follows: "[Sa sinumang Kinauukulan
lpinabasa, ipinaalam at naintindihan ni Paquito Yupo y Gonzales], 19 na
taong gulang, binata tubo sa San Policarpio, Eastern Samar ang nasa
ibaba nito '[Ikaw ay sinisiyasat ngayon dahilan sa paglabag sa batas.
Karapatan mo ang huwag magsalita. Anumang iyong sasabihin ay
maaring gamiting katibayan laban sa iyo. At ikaw ay may karapatan sa
tulong at sa pagharap ng abogado na iyong napipisil sa habila ng
kabatiran ni [Paquito Yupo ng mga nilalaman ng nasa itaas, siya ay
48

nagbigay pa rin ng salaysay.," 16 Could it be their way of trying to

impress on a court the fact that there was an in waiver? If so, it did not
cure
the
fatal
infirmity.
Rather
the
contrary.chanroblesvirtualawlibrary chanrobles virtual law library
3. People v. Bacong 17stands as a warning against imputing to an
accused an understanding of the proceeding when the language used is
one with which he is not familiar. The point at issue was whether there
was an improvident plea of guilt. It was stressed in the brief filed on
behalf of the accused that he " 'is an ignorant and illiterate person, a
neophyte in the national penitentiary, and one fully conversant [only]
with his native Visayan. This is apparent from his statement thus: "26. T
Marunong ka bang bumasa at sumulat ng wikang tagalog? & Naka
uunawa po ako sir, pero hindi po ako masyadong marunong, ang tangi
ko pong naiisulat ay ang aking pangalan " ... An observation and closer
look [at] his signature indeed reveals that the accused is an illiterate and
unschooled person. The strokes of his signature are irregular, halting,
and show a difficult and laborious effort to write the letters of his
name. ... In his signature on file with this Honorable Court, the same
observations can be made. ... Admittedly, the accused is a Visayan and
still a neophyte in the national penitentiary who does not understand well
Tagalog. ... We cannot expect the accused to have fully understood the
legal signification of these qualifying circumstances, which allegations
had been the subject of various interpretations of our courts. ...' " 18 As a
matter of fact in that case, Solicitor General Estelito P. Mendoza, in lieu
of appellant's brief filed a manifestation admitting that there was an
improvident plea of guilt and that judgment should be set aside. In that
case, there was an effort to ascertain whether the accused could read and
write in Tagalog' In this case, the private respondent, a Visayan, was
asked a kilometric question in Tagalog, and the interrogator was satisfied
with the monosyllabic Opo. Also, the failure to submit to this Court the
alleged signature of private respondent may be indicative of the fear on
the part of counsel for petitioner that the absence of education of the
nineteen-year old private respondent would be apparent. At any rate, it
cannot be denied that to predicate a waiver under the circumstances
disclosed would be to nullify the plain command of the constitutional
provision requiring that a confession to be admissible must be given only
if the accused were informed of his right to remain silent and to counsel;
otherwise, it is "inadmissible in character." The lower court, therefore,
acted in accordance with the plain dictate of the Constitution. To quote
from that eminent civil libertarian Justice Douglas: "Formulas of respect
for constitutional safeguards cannot prevail over the facts of life which
contradict them. They may not become a cloak for inquisitorial practices
and make an empty form of [constitutional rights]." 19 chanrobles virtual
law library
WHEREFORE, the petition for certiorari is dismissed. The trial of the
case is ordered to be resumed forthwith No costs.

Makasiar, Concepcion Jr., Santos, Fernandez, Guerrero, Abad Santos,

De
Castro
and
Melencio-Herrera,
JJ.,
concur.chanroblesvirtualawlibrarychanrobles virtual law library
Teehankee,
J.,
concur
in
result.chanroblesvirtualawlibrarychanrobles virtual law library

the

ayon o laban sa iyo, magsasalaysay ka pa rin ba? chanrobles virtual law

library
Opo.

Antonio,
J.,
concur
in
the
dissent
of
Justice
Aquino.chanroblesvirtualawlibrary chanrobles virtual law library

(b) A subsequent statement apparently taken by the Meycauayan police

evidently purported o cure the apparent inadequacy of the waiver
evidence by the question and answer just quoted was introduced in
evidence. Said statement reads as follows: chanrobles virtual law library

chanrobles virtual law library

TANGGAPAN NG PUNO NG PULISYA

Separate Opinions

Ika -18 ng Hulyo, 1973

BARREDO, J., concurs

in
a
separate
opinion.chanroblesvirtualawlibrary chanrobles virtual law library

SA SINUMANG KINAUUKULAN:

I would like to underline, however, the important point that the Court
rejects unanimously the view on which respondent judge based his ruling
under review, that the right to silence and to counsel during custodial
investigation is not subject to waiver. Both the main opinion of our
eminent Chief Justice as well as the dissenting opinion of our other
distinguished colleagues Justices Aquino and Antonio underscore the
point that said rights are indeed subject to waiver, the only requirement
in that regard being that such waiver must be proven to have been made
voluntarily
and
intelligently.chanroblesvirtualawlibrary chanrobles
virtual law library
But it is as to the legal significance or import of the "waiver made by the
accused Paquito Yupo, herein private respondent, that the dissenters
disagree with the main opinion. The dissenters feel that there is enough
showing in the record that said accused had freely and conscientiously
waived his right to silence and to counsel before he was interrogated by
Corporal Roca, the investigator. On my part, I agree with the Chief
Justice that merely informing a person under custody of his
constitutional rights under the circumstances hereinunder to be stated
and thereafter taking down his statement does not sufficiently safeguard
those rights.chanroblesvirtualawlibrary chanrobles virtual law library
Thus, in the particular case at bar, the prosecution would deduce free and
intelligent waiver from no more than the following: chanrobles virtual
law library
(a) The perfunctory opening question and answer, which has been the
usual form ordinarily followed by practically all police investigators
reading thus: chanrobles virtual law library
Ipinaaalam ko sa iyo na ikaw ay sinisiyasat tungkol sa isang paglabag sa
batas na iyong ginawa, bago ko ipagpatuloy ang pagtatanong sa iyo,
ikaw ay may karapatan na huwag magsalita kung ayaw mo at may
karapatan ka rin na magkaroon ng abogado na iyong gusto at dapat mo
ring mabatid na anuman ang sabihin mo dito ay maaaring gamitin ng

Ipinabasa, ipinaalam at naintindihan ni PAQUITO YUPO Y

GONZALES, 19 na taong gulang, binata tubo sa San Policarpio, Eastern
Samar ang nasa ibaba nito:
'IKAW AY SINISIYASAT NGAYON DAHILAN SA PAGLABAG SA
BATAS. KARAPATAN MO ANG HUWAG PAGSALITA. ANUMANG
IYONG SASABIHIN AY MAARING GAMITING KATIBAYAN
LABAN SA IYO. AT IKAW AY MAY KARAPATAN SA TULONG AT
SA PAGHARAP NG ABOGADO NA IYONG NAPIPISIL.' chanrobles
virtual law library
Sa kabila ng kabatiran ni PAQUITO YUPO ng mga nalalaman ng nasa
itaas nito, siya ay nagbigay pa rin ng salaysay.
(SGD.) PAQUITO YUPO
NILAGDAAN SA HARAP NINA: chanrobles virtual law library
(SGD.) CONRADOB. ROCA SGD ROBERTO SALES
In the light of these evidence, it is important to keep in mind that the
pertinent constitutional provision ordains unequivocally that: chanrobles
virtual law library
Sec. 20. No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel and to be informed of such
right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained
in violation of this section shall be inadmissible in evidence.
It is thus emphasized that "any person under investigation for the
commission of an offense" does not only have the right to remain silent
and to have the assistance of counsel, he must in addition be informed of
such rights. And it is my considered view that it is not enough that he be
told he has those rights. To give meaning and substance to the manifest
spirit and intent of the constitutional mandate, he must perforce be asked
pointedly and unequivocally whether or not he wants to exercise them.
Not every ordinary person, particularly the unschooled or one who is
49

addressed in a language or dialect he does not sufficiently command,

would readily comprehend to the extent intended by the fundamental law
of the land the exact import of the bare information that he owns a right.
To dispel any doubt, which is what I am certain the Constitution
contemplates, and to best serve the ends of justice as it is understood by
the common man it is imperative that the investigator should go one step
further, as I have just indicated. What would be lost doing it anyway? I
may have a right and may be reminded thereof, but if in my inadequate
circumstances of education and means of intelligent communication, and
because of the obvious anxiety and apprehension usually felt by one
under questioning about his possible participation in a criminal offense, I
am not made clearly aware when and how I can avail of such right, of
what use would such right and reminder be to me? In my humble
opinion, it behooves every police investigator who conducts a custodial
investigation to possess definite knowledge of the constitutional rights of
all persons being subjected by him to any inquiry relative to the
commission of any offense, and what is more, he must see to it that the
person being interrogated by him is not only informed of such rights but
that he is specifically asked in the language the latter adequately
understands whether or not he desires to exercise them, and only when
such person definitely, categorically and freely answers affirmatively
may the investigator proceed to conduct his inquiry and take the
statement of the person detained, with the implicit understanding yet that
even such initial waiver is not definitely final, for the person under
investigation may still invoke at his option the same rights at any further
stage of the interrogation.chanroblesvirtualawlibrary chanrobles virtual
law library
Justice Aquino makes reference in his dissent to the prevailing practice
whereby the ruling on the admissibility of a confession or of any
document, for that matter, is done at the closing of the evidence of the
party offering the same. In point of fact, Justice Aquino is correct. But in
view of the express adoption by our Constitution of the Miranda ruling
thereby raising it to an unalterable constitutional status as distinguished
from a mere jurisprudential dictamen I would like to take this
opportunity to suggest that trial fiscals and judges adopt special
procedures that can best guarantee the enforcement of the constitutional
rights to silence and to counsel of persons under custodial investigation.
I have practiced the law profession long enough - more than forty-three
years, to be exact - to know that the present practice pointed out by
Justice Aquino would not, I regret to say, carry out faithfully the full
significance
of
her
rights
under
discussion.chanroblesvirtualawlibrary chanrobles virtual law library
Let us not overlook that the last sentence of Section 20 of the Bill of
Rights above-quoted commands in no uncertain terms that "any
confession obtained in violation of this section shall be inadmissible in
evidence." This provision characterizes in bold relief the sanctity of the
rights enshrined in the provision. To my mind, as a matter of principle,
this constitutional mandate has at least the effect of equating the

violation thus mentioned with the infringement of the right of an accused

prohibiting the use of illegally seized evidence against him. And in this
connection, it will be recalled that the Moncado ruling (1) which
replaced Uy Kheytin vs. Villareal (2) was itself reversed in Stonehill vs.
Diokno (3) Thus, under the prevailing rule now, upon proper indication
or suggestion by the accused that the evidence intended to be offered
against him at the trial had been illegally seized from him, he is entitled
to a preliminary hearing as to the legally of such seizure and the
evidence may be presented only if the court is satisfied that it had been
legally taken or seized. In fact, the proceeding in this regard may be held
before the trial proper. Such being the case with evidence allegedly
illegally seized, why may not a confession, which is evidence of the
highest degree be not given the same if not more than deserved
importance and properly accorded the same procedure? chanrobles
virtual law library
In other words, I feel very strongly that with the new constitutional
developments in criminal procedure I have pointed out, there must be
corresponding innovations in our trial practices to give bone, flesh and
sinew to the additional rights of persons under custodial investigation or
accused mandated by the new provisions of the fundamental law of the
land. Accordingly, it is my view that before any confession is ever
marked or Identified, upon timely objection of the accused, the court
must first hold a separate proceeding solely for the purpose of satisfying
itself that the same was taken with due regard to the constitutional rights
of the accused discussed earlier in this opinion. The advantage of this
procedure is that the court may not even see the incriminatory parts, if
any, of the purported confession until after it is satisfied of the legality of
its taking, hence any possible danger of the mind of the court being
"poisoned" factually by illegal evidence, human as the judge is, is
thereby eliminated, should the confession be denied stated does not
mean that failure to timely object at the stage entry into the records. But,
of course, what has just been just indicated already precludes the accused
him questioning the legality of the confession at any other later stage of
the proceeding.chanroblesvirtualawlibrary chanrobles virtual law library
I realize that practical considerations, - usually in the mind of over
anxious and expeditiousness inclined, albeit possibly well intentioned,
law enforcers - may be invoked to argue against the somewhat
cumbersome procedure contemplated in this opinion. If practical
considerations may indeed be sometimes of great or indispensable
assistance in the prosecution of offenses specially because of the
seriously deteriorating crime situation in the country, I can just say that
the Constitution may not be assumed to have overlooked the imperatives
of efficient crime prosecution and law enforcement when, in the interest
of the more sacred rights of the people, for whom it speaks, it
surrounded persons under custodial investigation or accused of criminal
offenses with safeguards insuring, as much as it is humanly possible to
do so, that no innocent person is placed in jeopardy of losing his life or
liberty, without having had due opportunity to invoke them, and that

even a guilty person is not railroaded to his deserved punishment, much

less improvidently imposed a higher penalty than the law provides. Even
the paramount need to defend the safety and security of the people in
general and the community at large cannot justify less solicitousness
founded on the inherent minimum standards for respect of basic human
rights.
Aquino, J., dissent. "A defendant may waive effectuation of his rights to
remain silent and to be assisted by counsel at a custodial police
interrogation, provided the waiver is made voluntarily, knowingly, and
intelligently" (Syllabus, Miranda vs. Arizona, 16 L. Ed. 2d,
694,697).chanroblesvirtualawlibrary chanrobles virtual law library
In the Miranda case, it was spelled out that the accused, who is in police
custody, "must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. (Opportunity to exercise these rights must
be afforded to him throughout the interrogation". The Court
added: chanrobles virtual law library
After such warning have been given, and such opportunity afforded him,
the individual may y and intelligently weave these rights and agree to
answer
questions
or
make
a
statement.chanroblesvirtualawlibrarychanrobles virtual law library
But unless and until such warnings and waiver are demonstrated by the
prosecution at the trialno evidence obtained as a result of interrogation
can be used against him (lbid page 726).
In the instant case, the accused, Paquito Yupo, while in police custody,
executed the following waiver of his constitutional rights to remain
silent, not to incriminate himself, and to be assisted by
counsel: chanrobles virtual law library
Republika
ng
Lalawigan
ng
Bayan ng Meykawayan chanrobles virtual law library

Pilipinas
Bulakan

TANGGAPAN NG PUNO NG PULISYA

Ika -18 ng Hulyo, 1973
SA SINUMANG KINAUUKULAN:
Ipinabasa, ipinaalam at naintindihan ni PAQUITO YUPO Y
GONZALES, 19 na taong gulang, binata tubo sa San Policarpio, Eastern
Samar ang nasa ibaba nito:
IKAW AY SINISIYASAT NGAYON
DAHILAN SA PAGLABAG SA BATAS.
KARAPATAN MO ANG HUWAG
MAGSALITA. ANUMANG IYONG
50

SASABIHIN
AY
MAARING
GAMITING KATIBAYAN LABAN SA
IYO. AT IKAW AY MAY KARAPATAN
SA TULONG AT SA PAGHARAP NG
ABOGADO NA IYONG NAPIPISIL.
Sa kabila ng kabatiran ni PAQUITO YUPO ng mga
nalalaman ng nasa itaas nito, siya ay nagbigay pa rin ng
salaysay.
(SGD.) PAQUITO YUPO
NILAGDAAN SA HARAP NINA:
(SGD.) CONRADO B. ROCA (SGD.)
ROBERTO SALES"
On that same date, July 18, 1973, when Paquito Yupo executed the
waiver of his constitutional rights, his statement was taken by Corporal
Conrado B. Roca of the Meycauayan, Bulacan, police. That statement or
extrajudicial confession also contains a warning to Yupo as to his
constitutional rights to remain silent, not to incriminate himself and to be
assisted by counsel. The warning and waiver read as follows:
1.-Tanong: Ipinaalam ko sa iyo na ikaw ay sinisiyasat tungkol sa isang
paglabag sa batas na iyong ginawa, bago ko ipagpatuloy ang
pagtatanong sa iyo, ikaw ay may karapatan na huwag magsalita kung
ayaw mo at may karapatan ka rin na magkaruon ng abogado na iyong
gusto at dapat mo ring mabatid na anuman ang sabihin mo dito ay
maaaring gamiting ng ayon o laban sa iyo, magsasalaysay ka pa rin
ba? chanrobles virtual law library
.Sagot:
Opo.chanroblesvirtualawlibrary chanrobles
virtual law library
2.-T: Ang salaysay mo bang ito ay sarili at kusa mo na
hindi ka pinilit, sinaktan, tinakot o pinangakuan ng
anumang pabuya?chanrobles virtual law library
S: Opo.
On the basis of Yupo's confession, the provincial fiscal filed against him
an information for murder in the Court of First Instance of
Bulacan.chanroblesvirtualawlibrary chanrobles virtual law library

the accused, marked as Exhibit C, and his written waiver of his

constitutional
rights,
marked
as
Exhibit
F.chanroblesvirtualawlibrarychanrobles virtual law library
When police investigator Roca was questioned as to the incriminating
answers given by Yupo in his extrajudicial confession, the defense
counsel inyterposed an objection on the ground that the confession is
inadmissible in evidence because it was taken by Corporal Roca without
any counsel assisting the accused.chanroblesvirtualawlibrary chanrobles
virtual law library
Judge Eduardo P.. Caguioa the objection and ruled right away that Yupo's
Judicial confession was inadmissible in evidence. Judge Caguioa
said- chanrobles virtual law library
COURT: In view of the fact dot the testimony of the witness is to the
effect that. in the taking of the statement of the accused in this case there
was t to lawyer on the ground that he was having his right in a writing as
per Exhibit F of the prosecution, and con. considering the pro of the
Constitution that an accused in making statement during investigation
should be assisted by counsel at any stage of p and considering the
history of this provision of the Constitution, the Court believes that this
right to counsel cannot be waived, otherwise he wig again lapse into the
same situation which was sought to be cured by the Constitution,
namely, the making forcibly of the statement of the accused based on
supposed
voluntary
waiver
made
by
the
accused.chanroblesvirtualawlibrary chanrobles virtual law library
The Court believes that when the accused is under custody, he cannot be
said to be in the full possession of his constitutional right and
considering that this provisions of the Constitution was precisely enacted
to counteract forced confession obtained by police department and to
prevent therefore accused from being maltreated to ex. tort from them
involuntary confession the Court is of the opinion that
these constitutional rights are not subject to waiver and any waiver of the
accused will be null and void

quoted, the right to counsel may be waived during custodial

interrogation.chanroblesvirtualawlibrary chanrobles virtual law library
Corporal Roca was placed on the witness stand to testify on the
voluntariness of the confession and to show that a sufficient notice was
given to the accused as to his constitutional rights and that he waived
those rights voluntarily, knowingly and intelligently. Roca would declare
that the requisites of Section 20, Article VI of the Constitution were
complied with or that the confession is admissible in evidence. His
testimony should be allowed. To reject his testimony outright would
prevent the prosecution from showing that the confession is
admissible.chanroblesvirtualawlibrary chanrobles virtual law library
The accused may rebut Roca's testimony. On the basis of Roca's
testimony and the testimony of the accused, if he repudiates his
confession, the trial court may rule, when the confession is offered in
evidence, that it is inadmissible because there was no compliance with
the constitutional provisions.chanroblesvirtualawlibrary chanrobles
virtual law library
I beleive that Roca in taking the confession and waiver of Yupo
endeavored to adhere strictly to the guidelines laid down in
the Miranda case.chanroblesvirtualawlibrary chanrobles virtual law
library
I vote for the reversal of respondent Judge's ruling and to allow the fiscal
to propound questions to Corporal Roca on Yupo's confession and
waiver of his constitutional rights.law library
Endnotes:

In view thereof, the Court believes that this Exhibit C of the prosecution
(the confession) is inadmissible in evidence for being unconstitutional
and therefore the Court sustains all objections of counsel for the accused
objecting to the admission of any question with regards to the exhibits.

At the trial of that case, the prosecutor presented as witnesses (1) Miguel
Tribol, the victim's father, (2) Lydia Begnotia who heard the antemortem
statement of the victim pointing to Yupo as his assailant, (3) the
medicolegal officer who conducted the autopsy, (4) two policemen and
(5) Gracia Santos Wage.chanroblesvirtualawlibrary chanrobles virtual
law library

Respondent Judge made a premature ruling on the admissibility of the

confession. It was merely being Identified. It was not yet being formally
offered in evidence. The time to obeject to the admissibility of the
confession, Exhibit C, is when it is formally offered in evidence and that
is when the prosecution is at the stage of closing its case. That is the
well-known practice.chanroblesvirtualawlibrary chanrobles virtual law
library

Then, at the hearing on June 3, 1974, the prosecution placed on the

witness stand Corporal Roca to Identify the extra judical confession of

Respondent Judge also erroneously assumed that the right to counsel

cannot be waived. As shown in the ruling in the Miranda case, already
51

appearing that he is the least guilty among the accused in this case."
FIRST DIVISION

[G.R. No. 112983. March 22, 1995.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. HECTOR

MAQUEDA @ PUTOL, and RENE SALVAMANTE (at
large), Accused, HECTOR MAQUEDA @ PUTOL, AccusedAppellant.

DECISION

DAVIDE, JR., J.:

As against a bustling city life, Britisher Horace William Barker, a
consultant of the World Bank, and his Filipino wife, Teresita Mendoza,
chose the peace and quiet of a country home not any near the metropolis
of Manila or its environs, but in the rugged and mountainous terrain of
Tuba, Benguet. Perhaps they thought they were in a veritable paradise,
beyond the reach of worldly distractions and trouble. That illusion was
shattered when in the early morning of 27 August 1991, in the sanctity of
their own home, Horace was brutally slain and Teresita badly battered
with lead pipes on the occasion of a robbery. Sufficient prima facie
evidence pointed to Rene Salvamante, the victims' former houseboy, as
one of the perpetrators of the ghastly crime. As to Rene's co-conspirator,
the prosecution initially included one Richard Malig y Severino in the
information for robbery with homicide and serious physical injuries 1
filed on 19 November 1991 with Branch 10 of the Regional Trial Court
(RTC)
of
Benguet
at
La
Trinidad,
Benguet. nadchanroblesvirtuallawlibrary
Only Richard Malig was arrested. On 22 January 1992, prior to the
arraignment of Richard Malig, the prosecution filed a motion to amend
the information 2 to implead as co-accused Hector Maqueda alias Putol
because the evaluation of the evidence subsequently submitted
established his complicity in the crime, and at the hearing of the motion
the following day, the Prosecutor further asked that accused Richard
Malig be dropped from the information because further evaluation of the
evidence disclosed no sufficient evidence against him. 3
The motion to drop Malig was granted and warrants for the arrest of
accused Salvamante and Maqueda were issued. Maqueda was
subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an
application for bail. 4 He categorically stated therein that "he is willing
and volunteering to be a State witness in the above-entitled case, it

On 22 April 1992, the prosecution filed an Amended Information 5 with

only Salvamante and Maqueda as the accused. Its accusatory portion
reads
as
follows:nadchanroblesvirtualawlibrary
That on or about the 27th of August, 1991, at Tagadi. Upper Tadiangan,
Municipality of Tuba, Province of Benguet, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually aiding one another, armed with
lead pipes, and with intent of gain and against the will and consent of the
owners thereof, did then and there willfully, unlawfully and feloniously
enter the house of spouses TERESITA and WILLIAM HORACE
BARKER and with violence against and intimidation of the persons
therein ransack the place and take and carry away the following articles,
to
wit:nadchanroblesvirtualawlibrary
[An

enumeration

and

description

of

the

articles

follow]

all having a total value of TWO HUNDRED FOUR THOUSAND TWO

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

to

Law.

Since Rene Salvamante continues to elude arrest and has remained at

large, trial proceeded against Maqueda only, after he entered a plea of
not
guilty
on
22
April
1992.
6
In its decision 7 promulgated on 31 August 1993, the trial court found
accused Hector Maqueda guilty beyond reasonable doubt of the crime of
robbery with homicide and serious physical injuries and sentenced him
to suffer the penalty of reclusion perpetua and to "indemnify the victim,
Teresita M. Barker in the amount of P50,000.00 for the death of William
Horace Barker, P41,681.00 representing actual expenses, P100,000.00 as
moral
damages
and
to
pay
the
costs."
The prosecution presented as its witnesses Mrs. Teresita Mendoza
Barker, househelps Norie Dacara and Julieta Villanueva, Mike Tayaban,
Dr. Francisco Hernandez, Jr., Francisco Cabotaje, Prosecutor Daniel
Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and

Policarpio Cambod in its evidence in chief and Fredesminda Castrence

and SPO3 Armando Molleno on rebuttal. Accused Hector Maqueda took
the witness stand and presented SPO1 Aurelio Sagun, Jr. in his evidence
in chief and Myrna Maqueda Katindig as his sur-rebuttal witness.
The version of the prosecution, as culled from the trial court's detailed
and
meticulous
summary
thereof,
is
as
follows:nadchanroblesvirtualawlibrary
Between 10:30 and 11:00 p.m. of 26 August 1991, the spouses Horace
William Barker and Teresita Mendoza Barker repaired to their bedroom
after Teresita had checked, as was her wont, the main doors of their
house to see if they had been locked and bolted.
At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara,
a househelp of the Barkers who shared a room with her cousin and
fellow househelp, Julieta Villanueva, got up, opened the door to the
garage, went to the lavatory to wash her face, and proceeded to the toilet.
When she opened the door of the toilet and switched on the light, she
saw Rene Salvamante. She knew Salvamante very well because he and
his sister Melanie were the former househelps of the Barkers whom she
and Julieta Villanueva had replaced and because Salvamante had
acquainted
her
on
her
chores.
Salvamante suddenly strangled her. While she was fighting back, Norie
happened to turn her face and she saw a fair-complexioned, tall man with
a high-bridged nose at Salvamante's side, whom she identified at the trial
as Maqueda. After she broke free from Salvamante, Norie fled towards
the garage and shouted for help. Salvamante chased her and pulled her
back
inside
the
house.
Julieta villanueva, who was awakened by the shouts of Norie, got out of
her bed and upon opening the door of her room, saw a man clad in
maong jacket and short pants with his right hand brandishing a lead pipe
standing two meters in front of her. At the trial, she pointed to accused
Maqueda as the man she saw then. She got scared and immediately
closed the door. Since the door knob turned as if someone was forcing
his way into the room, she held on to it and shouted for help.
The shouts awakened Teresita Mendoza Barker. She rose from her bed
and went out of the room, leaving behind her husband who was still
asleep. She went down the stairs and proceeded to the dining room. She
saw Salvamante and a companion who was a complete stranger to her.
Suddenly, the two rushed towards her and beat her up with lead pipes.
Despite her pleas to get what they want and not to hurt her, they
continued to beat her up until she lost consciousness. At the trial, she
pointed to accused Maqueda as Salvamante's companion.
Salvamante also hit Norie with the lead pipe on her back and at the back
52

of her right hand. She fell to the concrete floor, and after she had
recovered, she ran to the garage and hid under the car. After a few
seconds, she went near the door of the garage and because she could not
open it, she called Julieta. Julieta opened the door and they rushed to
their room and closed the door. When they saw that the door knob was
being turned, they braced themselves against the door to prevent anyone
from entering. While locked in their room, they heard the moans of Mrs.
Barker and the shouts of Mr. Barker: "That's enough, that's enough, that's
enough." When the noise stopped, Norie and Julieta heard the sound of
water flowing from the toilet and the barking of dogs.
At 7:00 a.m. of that same day, 27, August 1991, Mike Tabayan and Mark
Pacio were resting in a waiting shed beside the Asin road at Aguyad,
Tuba, Benguet, which is only a kilometer away from the house of the
Barkers. They saw two men approaching them from a curve. When the
two men reached the shed, he and Mark noticed that the taller of the two
had an amputated left hand and a right hand with a missing thumb and
index finger. This man was carrying a black bag on his right shoulder.
Speaking in Tagalog, the taller man asked Mike and Mark whether the
road they were following would lead to Naguilian, La Union. Mike
replied that it did not. Five minutes later, a passenger jeepney bound for
Baguio City and owned and driven by Ben Lusnong arrived at the
waiting shed. The two men boarded it. Mike again noticed that the taller
man had the defects above mentioned because the latter used his right
hand with only three fingers to hold on to the bar of the jeepney as he
boarded it. In the investigation conducted by the Tuba police, he
identified through a picture the shorter man as Salvamante, and at the
hearing, he pointed to Maqueda as the taller man.
At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered enough
courage to leave the room where they had earlier barricaded themselves
and proceed to the kitchen to get the key to the gate of the garage. In the
dining room, they saw the Barkers bathed in their own blood. Norie and
Julieta rushed out of the house and ran to the place of Janet Albon to
seek help. After requesting Janet to call the police, they returned to the
Barker's house but did not enter it for fear of what they had seen earlier.
They
just
stayed
near
the
road.
Soon after, security guards of the Baguio College Foundation (BCF)
arrived. A team from the Baguio City Police Station, headed by police
Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the
City Health Department, also arrived. The team conducted an initial
investigation only because it found out that the scene of the crime was
within the jurisdiction of the Tuba Police Station, which, however, was
difficult to get in touch with at that time. Dr. Perfecto Micu found the
body of Mr. Barker inside the Barker house and Cambod prepared a
sketch (Exhibit "JJ") showing its location. They went around the house
and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt

(Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also

discovered another lead pipe (Exhibit "BB") at the back of the door of
the house. He then interviewed the two househelps who provided him
with descriptions of the assailants. The team then left, leaving behind
BCF Security Officer Glen Enriquez and a security guard. Cambod
prepared a report of his initial investigation (Exhibit "KK").

her. She pointed to a person who turned out to be Richard Malig. When
informed of the investigation, Dr. Hernandez told the members of the
team that it was improper for them to conduct it without first consulting
him since Mrs. Barker had not yet fully recovered consciousness.
Moreover, her eyesight had not yet improved, her visual acuity was
impaired, and she had double vision. nadchanroblesvirtuallawlibrary

Enriquez conducted his own investigation. At the master's bedroom, he

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

On 3 September 1991, the remains of Mr. Barker were cremated. Mrs.

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

At 5:00 p.m. of that same day, members of the Tuba Police Station
arrived at the Barker house to conduct their investigation. Enriquez, who
in the meantime was called by Dalit, returned to the Barker house.
The lead pipes, black T-shirt, and the green hand towel recovered from
the Barker house by the Baguio City Police were first brought to the
PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet,
and
then
to
the
court.
The body of William Horace Barker was taken to the Baguio Funeral
Homes at Naguilian Road, Baguio City, where it was examined by Dr.
Francisco P. Cabotaje, Municipal Health Officer of Tuba, Benguet. He
found in it twenty-seven injuries, which could have been caused by a
blunt instrument, determined the cause of death as hemorrhagic shock,
and then issued a death certificate (Exhibits "P," "O," and
"R"). nadchanroblesvirtuallawlibrary
The wounded Teresita Barker was brought to the Baguio General
Hospital and Medical Center where she was treated and confined for
eight days. The attending physician, Dr. Francisco L. Hernandez, Jr., first
saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose
state. Dr. Hernandez found that she sustained multiple lacerations
primarily on the left side of the occipital area, bleeding in the left ear,
and bruises on the arm. One of the muscles adjoining her eyes was
paralyzed. She regained consciousness only after two days. Dr.
Hernandez opined that Mrs. Barker's injuries were caused by a blunt
instrument, like a lead pipe, and concluded that if her injuries had been
left unattended, she would have died by noontime of 27 August 1991 due
to
bleeding
or
hemorrhagic
shock.
On 1 September 1991, a police team from the Tuba Police Station,
Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of
several persons, and asked her to identify the persons who had assaulted

Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon

City. It was revealed that she sustained a damaged artery on her left eye
which could cause blindness. She then sought treatment at the St. Luke's
Roosevelt Hospital in New York (Exhibit "L") where she underwent an
unsuccessful operation. She likewise received treatment at the New York
Medical
Center
(Exhibit
"M").cralaw
On 29 November 1991, Ray Dean Salvosa, Executive Vice President of
the BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to
coordinate with the police in determining the whereabouts of accused
Rene Salvamante. In Guinyangan, Enriquez was able to obtain
information from the barangay captain, Basilio Requeron, that he saw
Salvamante together with a certain "Putol" in September 1991; however,
they
already
left
the
place.
On 21 December 1991, Enriquez, Melanio Mendoza, and three others
went back to Guinyangan to find out whether Salvamante and "Putol'
had returned. Upon being informed by Barangay Captain Requeron that
the two had not, Enriquez requested Requeron to notify him immediately
once
Salvamante
or
"Putol"
returned
to
Guinyangan.
On 4 March 1992, Requeron's daughter called up Enriquez to inform
him that "Putol," who is none other than accused Hector Maqueda, had
been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran,
Chief of the Tuba Police Station, together with another policeman,
proceeded to Guinyangan. The Guinyangan Police Station turned over
Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet
Provincial
Jail.
Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken
to the headquarters of the 235th PNP Mobile Force Company at Sta.
Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F.
53

Renton, directed SPO3 Armando Molleno to get Maqueda's statement.

He did so and according to him, he informed Maqueda of his rights
under the Constitution. Maqueda thereafter signed a Sinumpaang
Salaysay (Exhibit "LL") wherein he narrated his participation in the
crime
at
the
Barker
house
on
27
August
1991.
On 9 April 1992, while he was under detention, Maqueda filed a Motion
to Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and
volunteering to be a State witness in the above entitled case, it appearing
that he is the least guilty among the accused in this case." Prosecutor
Zarate then had a talk with Maqueda regarding such statement and asked
him if he was in the company of Salvamante on 27 August 1991 in
entering the house of the Barkers. After he received an affirmative
answer, Prosecutor Zarate told Maqueda that he would oppose the
motion for bail since he, Maqueda, was the only accused on trial (Exhibit
"II").cralaw
In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor
Zarate and obtained permission from the latter to talk to Maqueda.
Salvosa then led Maqueda toward the balcony. Maqueda narrated to
Salvosa that Salvamante brought him to Baguio City in order to find a
job as a peanut vendor; Salvamante then brought him to the Barker
house and it was only when they were at the vicinity thereof that
Salvamante revealed to him that his real purpose in going to Baguio City
was to rob the Barkers; he initially objected to the plan, but later on
agreed to it; when they were in the kitchen of the Barker house, one of
the househelps was already there; Salvamante hit her with a lead pipe
and she screamed; then Mrs. Barker came down, forcing him, Maqueda,
to attack her with the lead pipe provided him by Salvamante. After he
felled Mrs. Barker, he helped Salvamante in beating up Mr. Barker who
had followed his wife downstairs. When the Barkers were already
unconscious on the floor, Salvamante went upstairs and a few minutes
later came down bringing with him a radio cassette and some pieces of
jewelry.
Maqueda further divulged to Salvosa that they then changed clothes,
went out of the house, walked toward the road where they saw two
persons from whom they asked directions and when a passenger jeepney
stopped and they were informed by the two persons that it was bound for
Baguio City, he and Salvamante boarded it. They alighted somewhere
along Albano Street in Baguio City and walked until they reached the
Philippine Rabbit Bus station where they boarded a bus for Manila. 8
Accused Hector Maqueda put up the defense of denial and alibi. His
testimony is summarized by the trial court in this
wise:nadchanroblesvirtualawlibrary
Accused Hector Maqueda denied having anything to do with the crime.
He stated that on August 27, 1991 he was at the polvoron factory owned

by Minda Castrense located at Lot 1, Block 21, Posadas Bayview

Subdivision, Sukat, Muntinlupa. Metro Manila. He was employed as a
caretaker since July 5, 1991 and he worked continuously there up to
August 27, 1991. It was his sister, Myrna Katindig, who found him the
job as caretaker. As caretaker, it was his duty to supervise the employees
in the factory and whenever his employer was not around, he was in
charge of the sales. He and his 8 co-employees all sleep inside the
factory.
On August 26, 1991, he reported for work although he could not recall
what he did that day. He slept inside the factory that night and on August
27, 1991, he was teaching the new employees how to make the
seasoning
for
the
polvoron.
On December 20, 1991, he went home to Gapas, Guinyangan, Quezon
Province as it was his vacation time from his job at the polvoron factory.
He was to be back at work after New Year's Day in 1992. Upon alighting
from the bus at Guinyangan, Quezon, he saw accused Rene Salvamante.
He knows accused Salvamante as they were childhood playmates,
having gone to the same elementary school. He had no chance to talk to
him that day when he saw him and so they just waved to each other. He
again saw accused Salvamante after Christmas day on the road beside
their (Salvamante) house. Salvamante invited him to go to Calauag,
Quezon Province and roam around. He agreed to go as he also wanted to
visit his brother, Jose Maqueda who resided at Sabangdos, Calauag,
Quezon. When the two accused were at Calauag, Salvamante asked
Maqueda to accompany him (Salvamante) in selling a cassette recorder
which he said came from Baguio City. Accused Maqueda knew that
Salvamante worked in Baguio as the latter's mother told him about it.
They were able to sell the cassette recorder to Salvamante's aunt. They
had their meal and then went to visit accused Maqueda's brother. After
that occasion, he never saw accused Salvamante again. After his
Christmas vacation, he went back to work at the polvoron factory until
February 29, 1992. One of his co-workers Roselyn Merca, who was a
townmate of his asked him to accompany her home as she was hard up
in her work at the factory. Hence, he accompanied Roselyn home to
Guinyangan, Quezon. He was supposed to report back for work on
March 2, 1992 but he was not able to as he was arrested by members of
the CAFGU at the house of Roselyn Merca when he brought her home.
He was then brought to the Guinyangan municipal jail, then to the Tuba
Police Station, Tuba, Benguet. There he was told to cooperate with the
police in arresting Salvamante so he would not stay long in the Province
of Benguet. He was also told that if he would point to accused
Salvamante, he would be freed and he could also become a state witness.
He told them that he could attest to the fact that he accompanied accused
Salvamante
in
selling
the
cassette
recorder. nadchanroblesvirtuallawlibrary
On March 5, 1992, he was brought to the Benguet Provincial Jail at La

Trinidad, Benguet where he has remained under detention up to the

present.
9
The prosecution rebutted the testimony of Hector Maqueda by
presenting Fredesminda Castrence and SPO3 Armando Molleno.
Castrence, the owner of the polvoron factory where Maqueda worked,
testified that she started her business only on 30 August 1991 and thus it
was impossible for her to have hired Maqueda on 5 July 1991. SPO3
Molleno declared that he informed Maqueda of his constitutional rights
before Maqueda was investigated and that Maqueda voluntarily and
freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10
Although the trial, court had doubts on the identification of Maqueda by
prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and
Julieta Villanueva and thus disregarded their testimonies on this matter,
it decreed a conviction "based on the confession and the proof of corpus
delicti" as well as on circumstantial evidence. It stated
thus:nadchanroblesvirtualawlibrary
Since we have discarded the positive identification theory of the
prosecution pinpointing accused Maqueda as the culprit, can we still
secure a conviction based on the, confession and the proof of corpus
delicti as
well
as
on
circumstantial
evidence?
In order to establish the guilt of the accused through circumstantial
evidence, the following requisites must be present: 1) there must be more
than one circumstance; 2) the facts from which the inferences are
derived are proved; and 3) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt (People vs.
Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must
be an unbroken chain of circumstances which leads to one fair and
reasonable conclusion pointing to the defendant to the exclusion of all
others, as the author of the crime (People vs. Abuyen, G.R. No. 77285,
September
4,
1992,
213
SCRA
569).cralaw
The circumstances shown by the prosecution which tend to show the
guilt
of
the
accused
are:nadchanroblesvirtualawlibrary
1. A physical demonstration to which the accused and his counsel did not
offer
any
objection
shows
that
despite
his
being
handicapped, Accused Maqueda could well and easily grip a lead pipe
and strike a cement post with such force that it produced a resounding
vibration. It is not farfetched then to conclude that accused Maqueda
could
have
easily
beat
Mr.
Barker
to
death.
2. His presence within the vicinity of the crime scene right after the
incident in the company of accused Salvamante was testified to by Mike
Tayaban, the only prosecution witness who noticed the defective hands
of the accused. As they had to ask for directions from the witness in the
54

Tagalog dialect shows that they were strangers to the place.

REASONABLE

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

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

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

4. His Motion to Grant Bail (Exhibit "HH") contains this statement "That
he is willing and volunteering to be a State witness in the above-entitled
case, it appearing that he is the least guilty among the accused in this
case;". This in effect, supports his extrajudicial confession made to the
police at Calauag, Quezon Province. Although he claims that he did not
bother to read the motion as he was just told that his signature would
mean his release from detention, this is a flimsy excuse which cannot be
given credence. Had he not understood what the motion meant, he could
have easily asked his sister and brother-in-law what it meant seeing that
their signatures were
already affixed on the motion.
5. This time, his admission to Prosecutor Zarate that he was at the Barker
house that fateful morning and his even more damaging admissions to
Ray Dean Salvosa as to what he actually did can be considered as
another circumstance to already bolster the increasing circumstances
against
the
accused.
6. The accused's defense is alibi. As stated in a long line of cases, alibi is
at best a weak defense and easy of fabrication (People vs. Martinado,
G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given
credence, it must not only appear that the accused interposing the same
was at some other place but also that it was physically impossible for
him to be at the scene of the crime at the time of its commission (People
vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This
defense easily crumbles down as prosecution witness Mike Tayaban
placed accused Maqueda at the vicinity of the crime scene.
The combination of all these circumstances plus his extrajudicial
confession produce the needed proof beyond reasonable doubt that
indeed accused Maqueda is guilty of the crime. 11
The extrajudicial confession referred to is the Sinumpaang Salaysay
(Exhibit "LL") of Maqueda taken by SPO2 Molleno immediately after
Maqueda
was
arrested.
Maqueda seasonably appealed to us his conviction. In his 14-page brief,
he pleads that we acquit him because the trial court committed this lone
error:nadchanroblesvirtualawlibrary
. . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND

DOUBT

OF

THE

CRIME

CHARGED.

12

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

alibi
is
unconvincing.
The accused's arguments which stress the incredibility of the testimonies
of Mrs. Barker and the househelps identifying Maqueda are misdirected
and misplaced because the trial court had ruled that Mrs. Teresita
Mendoza Barker and the two housemaids, Norie Dacara and Julieta
Villanueva, were not able to positively identify Maqueda. The trial court
based his conviction on his extrajudicial confession and the proof
of corpus delicti, as well as on circumstantial evidence. He should have
focused
his
attention
and
arguments
on
these.
From its ratiocinations, the trial court made a distinction between an
extrajudicial confession the Sinumpaang Salaysay and an
extrajudicial admission the verbal admissions to Prosecutor Zarate
and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to
convince us that it is an extrajudicial confession. It is only an
extrajudicial admission. There is a distinction between the former and
the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules
of Court which read as follows:nadchanroblesvirtualawlibrary
SEC. 26. Admission of a party. The act, declaration or omission of
party as to a relevant fact may be given in evidence against him.
xxx xxx xxx

SEC. 33. Confession. The declaration of an accused acknowledging

his guilt of the offense charged, or of any offense necessarily included
therein,
may
be
given
in
evidence
against
him.
In a confession, there is an acknowledgment of guilt. The term
admission is usually applied in criminal cases to statements of fact by the
accused which do not directly involve an acknowledgment of his guilt or
of the criminal intent to commit the offense with which he is charged. 13
Wharton distinguishes a confession from an admission as
follows:nadchanroblesvirtualawlibrary

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

criminal case, of his guilt of the crime charged, while an admission is a
statement by the accused, direct or implied, of facts pertinent to the issue
and tending, in connection with proof of other facts, to prove his guilt. In
other words, an admission is something less than a confession, and is but
an acknowledgment of some fact or circumstance which in itself is
insufficient to authorize a conviction and which tends only to establish
the
ultimate
fact
of
guilt.
14
And under Section 3 of Rule 133, an extrajudicial confession made by
the accused is not sufficient for conviction unless corroborated by
evidence
of corpus
delicti.
The trial court admitted the Sinumpaang Salaysay of accused Maqueda
although it was taken without the assistance of counsel because it was of
the opinion that since an information had already been filed in court
against him and he was arrested pursuant to a warrant of arrest issued by
the court, the Sinumpaang Salaysay was not, therefore, taken during
custodial investigation. Hence, Section 12(1), Article III of the
Constitution providing as follows:nadchanroblesvirtualawlibrary
SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in
the
presence
of
counsel.
is not applicable, 15 i.e., the police investigation was "no longer within
the ambit of a custodial investigation." It heavily relied on People vs.
Ayson 16 where this Court elucidated on the rights of a person under
custodial investigation and the rights of an accused after a case is filed in
court. The trial court went on to state:nadchanroblesvirtualawlibrary
At the time of the confession, the accused was already facing charges in
court. He no longer had the right to remain silent and to counsel but he
had the right to refuse to be a witness and not to have any prejudice
whatsoever result to him by such refusal. And yet, despite his knowing
fully well that a case had already been filed in court, he still confessed
when
he
did
not
have
to
do
so.
17
The trial court then held that the admissibility of the Sinumpaang
Salaysay should not be tested under the aforequoted Section 12(1),
Article III of the Constitution, but on the voluntariness of its execution.
Since voluntariness is presumed, Maqueda had the burden of proving
otherwise, which he failed to do and, hence, the Sinumpaang Salaysay
was
admissible
against
him. nadchanroblesvirtuallawlibrary
As to the admissions made by Maqueda to Prosecutor Zarate and Ray
55

Dean Salvosa, the trial court admitted their testimony thereon only to
prove the tenor of their conversation but not to prove the truth of the
admission because such testimony was objected to as hearsay. It
said:nadchanroblesvirtualawlibrary
In any case, it is settled that when testimony is presented to establish not
the truth but the tenor of the statement or the fact that such statement was
made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28,
1992,
206
SCRA
652).
18
While we commend the efforts of the trial court to distinguish between
the rights of a person under Section 12(1), Article III of the Constitution
and his rights after a criminal complaint or information had been filed
against him, we cannot agree with its sweeping view that after such
filing an accused "no longer, [has] the right to remain silent and to
counsel but he [has] the right to refuse to be a witness and not to have
any prejudice whatsoever result to him by such refusal." If this were so,
then there would be a hiatus in the criminal justice process where an
accused is deprived of his constitutional rights to remain silent and to
counsel and to be informed of such rights. Such a view would not only
give a very restrictive application to Section 12(1); it would also
diminish the said accused's rights under Section 14(2) Article III of the
Constitution.
The exercise of the rights to remain silent and to counsel and to be
informed thereof under Section 12(1), Article III of the Constitution are
not confined to that period prior to the filing of a criminal complaint or
information but are available at that stage when a person is "under
investigation for the commission of an offense." The direct and primary
source of this Section 12(1) is the second paragraph of Section 20,
Article
II
of
the
1973
Constitution
which
reads:nadchanroblesvirtualawlibrary
Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of such
right
.
.
.
The first sentence to which it immediately follows refers to the right
against
self-incrimination
reading:nadchanroblesvirtualawlibrary
No person shall be compelled to be a witness against himself.
which is now Section 17, Article III of the 1987 Constitution. The
incorporation of the second paragraph of Section 20 in the Bill of Rights
of the 1973 Constitution was an acceptance of the landmark doctrine laid
down by the United States Supreme Court in Miranda vs. Arizona. 19 In
that case, the Court explicitly stated that the holding therein "is not an
innovation in our jurisprudence, but is an application of principles long
recognized and applied in other settings." It went on to state its

ruling:nadchanroblesvirtualawlibrary
Our holding will be spelled out with some specificity in the pages which
follow but briefly stated, it is this: the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. As
for the procedural safeguards to be employed, unless other fully effective
means are devised to inform accused persons of their right of silence and
to assure a continuous opportunity to exercise it, the following measures
are required. Prior to any questioning the person must be warned that he
has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he indicates in any manner and
at any stage of the process that he wishes to consult with an attorney
before speaking there can be no questioning. Likewise, if the individual
is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may
have answered some question or volunteered some statements on his
own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter
consents
to
be
questioned.
20
It may be pointed out though that as formulated in the second paragraph
of the aforementioned Section 20, the word custodial, which was used in
Miranda with reference to the investigation, was excluded. In view
thereof, in Galman vs. Pamaran, 21 this Court aptly
observed:nadchanroblesvirtualawlibrary
The fact that the framers of our Constitution did not choose to use the
term "custodial" by having it inserted between the words "under' and
"investigation," as in fact the sentence opens with the phrase "any
person" goes to prove that they did not adopt in toto the entire fabric of
the
Miranda
doctrine. nadchanroblesvirtuallawlibrary
Clearly then, the second paragraph of Section 20 has even broadened the
application of Miranda by making it applicable to the investigation for
the commission of an offense of a person not in custody. 22 Accordingly,
as so formulated, the second paragraph of Section 20 changed the rule
adopted in People vs. Jose 23 that the rights of the accused only begin
upon arraignment. Applying the second paragraph of Section 20, this
Court laid down this rule in Morales vs. Enrile: 24
7. At the time a person is arrested, it shall be the duty of the arresting

officer to inform him of the reason for the arrest and he must be shown
the warrant of arrest, if any. He shall be informed of his constitutional
rights to remain silent and to counsel, and that any statement he might
make could be used against him. The person arrested shall have the right
to communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to
it that this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his behalf. The
right to counsel may be waived but the waiver shall not be valid unless
made with the assistance of counsel. Any statement obtained in violation
of the procedure herein laid down, whether exculpatory or inculpatory, in
whole or in part, shall be inadmissible in evidence.
Note that the first sentence requires the arresting officer to inform the
person to be arrested of the reason for the arrest and show him "the
warrant of arrest, if any." The underscored phrase simply means that a
case had been filed against him in a court of either preliminary or
original jurisdiction and that the court had issued the corresponding
warrant of arrest. From the foregoing, it is clear that the right to remain
silent and to counsel and to be informed thereof under the second
paragraph of Section 20 are available to a person at any time before
arraignment whenever he is investigated for the commission of an
offense. This paragraph was incorporated into Section 12(1), Article III
of the present Constitution with the following additional safeguards: (a)
the counsel must be competent and independent, preferably of his own
choice, (b) if the party cannot afford the services of such counsel, he
must be provided with one, and (c) the rights therein cannot be waived
except in writing and in the
presence of counsel.
Then, too, the right to be heard would be a farce if it did not include the
right to counsel. 25 Thus, Section 12(2), Article III of the present
Constitution provides that in all criminal prosecutions the accused shall
"enjoy the right to be heard by himself and counsel." In People vs.
Holgado,
26
this
Court
emphatically
declared:nadchanroblesvirtualawlibrary
One of the great principles of justice guaranteed by our Constitution is
that "no person shall be held to answer for a criminal offense without
due process of law", and that all accused "shall enjoy the right to be
heard by himself and counsel." In criminal cases there can be no fair
hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not
include the right to be heard by counsel. Even the most intelligent or
educated man may have no skill in the science of the law, particularly in
the rules of procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how to establish his
56

innocence. And this can happen more easily to persons who are ignorant
or uneducated. It is for this reason that the right to be assisted by counsel
is deemed so important that it has become a constitutional right and it is
so implemented that under our rules of procedure it is not enough for the
Court to apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but it is
essential that the court should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure an
attorney
of
his
own.
It was therefore, wrong for the trial court to hold that Section 12(1),
Article III of the Constitution is strictly limited to custodial investigation
and that it does not apply to a person against whom a criminal complaint
or information has already been filed because after its filing he loses his
right to remain silent and to counsel. If we follow the theory of the trial
court, then police authorities and other law enforcement agencies would
have a heyday in extracting confessions or admissions from accused
persons after they had been arrested but before they are arraigned
because at such stage the accused persons are supposedly not entitled to
the enjoyment of the rights to remain silent and to
counsel. nadchanroblesvirtuallawlibrary
Once a criminal complaint or information is filed in court and the
accused is thereafter arrested by virtue of a warrant of arrest, he must be
delivered to the nearest police station or jail and the arresting officer
must make a return of the warrant to the issuing judge, 27 and since the
court has already acquired jurisdiction over his person, it would be
improper for any public officer or law enforcement agency to investigate
him in connection with the commission of the offense for which he is
charged. If, nevertheless, he is subjected to such investigation, then
Section 12(1), Article III of the Constitution and the jurisprudence
thereon
must
be
faithfully
complied
with.
The Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the
former's arrest was taken in palpable violation of his rights under Section
12(1), Article III of the Constitution. As disclosed by a reading thereof,
Maqueda was not even told of any of his constitutional rights under the
said section. The statement was also taken in the absence of counsel.
Such uncounselled Sinumpaang Salaysay is wholly inadmissible
pursuant to paragraph 3, Section 12, Article III of the Constitution which
reads:nadchanroblesvirtualawlibrary
(3) Any confession or admission obtained in violation of this or Section
17 hereof shall be inadmissible in evidence against him.
However, the extrajudicial admissions of Maqueda to prosecutor Zarate
and to Ray Dean Salvosa stand on a different footing. These are not
governed by the exclusionary rules under the Bill of Rights. Maqueda
voluntarily and freely made them to Prosecutor Zarate not in the course

of an investigation, but in connection with Maqueda's plea to be utilized

as a state witness; and as to the other admission, it was given to a private
person. The provisions of the Bill of Rights are primarily limitations on
government, declaring the rights that exist without governmental grant,
that may not be taken away by government and that government has the
duty to protect; 28 or restrictions on the power of government found "not
in the particular specific types of action prohibited, but in the general
principle that keeps alive in the public mind the doctrine that
governmental power is not unlimited." 29 They are the fundamental
safeguards against aggressions of arbitrary power, 30 or state tyranny
and abuse of authority. In laying down the principles of the government
and fundamental liberties of the people, the Constitution did not govern
the
relationships
between
individuals.
31
Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private
party, are admissible in evidence against the former under Section 26,
Rule 130 of the Rules of Court. In Aballe vs. People, 32 this Court held
that the declaration of an accused expressly acknowledging his guilt of
the offense may be given in evidence against him and any person,
otherwise competent to testify as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and
understood it. The said witness need not repeat verbatim the oral
confession; it suffices if he gives its substance. By analogy, that rule
applies
to
oral
extrajudicial
admissions.
To be added to Maqueda's extrajudicial admission is his Urgent Motion
for Bail wherein he explicitly stated that "he is willing and volunteering
to be a state witness in the above entitled case, it appearing that he is the
least
guilty
among
the
accused
in
this
case."
In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa
and his willingness to be a state witness, Maqueda's participation in the
commission of the crime charged was established beyond moral
certainty. His defense of alibi was futile because by his own admission
he was not only at the scene of the crime at the time of its commission,
he also admitted his participation therein. Even if we disregard his
extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was,
as correctly ruled by the trial court, established beyond doubt by
circumstancial evidence. The following circumstances were duly proved
in
this
case:nadchanroblesvirtualawlibrary

(4) He and Rene Salvamante were together in Guinyangan, Quezon, and

both
left
the
place
sometime
in
September
1991;
(5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and
(6) He freely and voluntarily offered to be a state witness stating that "he
is
the
least
guilty."
Section 4, rule 133 of the Rules of Court provides that circumstantial
evidence is sufficient for conviction if:nadchanroblesvirtualawlibrary
(a)

There

is

more

than

one

circumstance;

(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction
beyond
reasonable
doubt.
Or, as jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proved
constitute an unbroken chain which leads to one fair and reasonable
conclusion which points to the accused, to the exclusion of all others, as
the guilty person, i.e., the circumstances proved must be consistent with
each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with any other hypothesis except that of
guilty. 33 We do not hesitate to rule that all the requisites of Section 2,
Rule 133 of the Rules of Court are present in this
case. nadchanroblesvirtuallawlibrary

(2) Rene Salvamante, who is still at large, was positively identified by

Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons
who
committed
the
crime;

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

(3)

WHEREFORE, in view of the foregoing, the instant appeal is

(1) He and a companion were seen a kilometer away from the Barker
house an hour after the crime in question was committed there;

He

and

co-accused

Rene

Salvamante

are

friends;

57

DISMISSED and the appealed decision of Branch 10 of the Regional

Trial Court of Benguet in Criminal Case No. 91-CR-1206 is AFFIRMED
in
toto. nadchanroblesvirtuallawlibrary
Costs against accused-appellant HECTOR MAQUEDA @ PUTOL.
SO

ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

Endnotes:

1.
Original
Records
(OR),
1.
2.
Id.,
37.
3.
Id.,
49.
4. Exhibit "HH"; Id., 62. Maqueda signed it together with his sister,
Myrna
M.
Catinding,
and
her
husband.
5.
Id.,
86.
6.
OR,
94.
7. Id., 922-949; Rollo, 48-75. Per Judge Romeo A. Brawner.
8. RTC Decision, 3-12, 14-15; OR, 924-933, 935-936; Rollo, 59-60, 6162.
9.
05,
933-934;
Rollo,
59-60.
10.
RTC
Decision,
14-15;
OR,
935-936.
11.
OR,
946-947;
Rollo,
72-73.
12.
Rollo,
87.
13.
U.S.
vs.
Corrales,
28
Phil.
362
[1914].
14. 2 Wharton's Criminal Evidence 337 (12th ed., 1955). See also 2
Underhill's Criminal Evidence 385 (5th ed., 1956); Wigmore on
Evidence 821 (3rd ed., 1940); People vs. Agustin, G.R. No. 110290, 25
January 1995; and People vs. Lorenzo, G.R. No. 110107, 26 January
1995.
15.
OR,
943;
Rollo,
69.
16.
175
SCRA
216
(1989].
17.
OR,
945;
Rollo,
71.
18.
Id.,
939;
Id.,
65.
19.
384
U.S.
436
[1966].
20.
Id.
at
445.
21.
138
SCRA
294,
319-320
[1985].
22. See 1 JOAQUIN G. BERNAS, The Constitution of the Republic of
the
Philippines
344
(1st
ed.
1987).cralaw
23.
37
SCRA
450
[1971].
24. 121 SCRA 538, 554 [1983]. See also People vs. Penillos, 205 SCRA
546 [1992]; People vs. De Jesus, 213 SCRA 345 [1992]; People vs.
Tujon, 215 SCRA 559 [1992]; People vs. Basay, 219 SCRA 404 [1993].
25.
BERNAS,
supra
note
23,
at
380.

26.
85
Phil.
752,
756-757
[1950].
27. Sections 3 and 4, Rule 113, Rules of Court.
28. Quinn vs. Buchanan, 298 SW 2d 413, 417 [1957].
29. Bustamante vs. Maceren, 48 SCRA 155, 167 [1972].
30. 16 Am Jur 2d 206, quoting Dumbauld in The Bill of Rights, 140
[1957].
31.
People
vs.
Marti,
193
SCRA
57
[1991].
32.
183
SCRA
196
[1990].
33. People vs. Tiozon, 198 SCRA 368 [1991]; People vs. Dela Cruz, 229
SCRA
754
[1994].
34. People vs. Penillos, 205 SCRA 546 [1992]; People vs. Dela Cruz,
207 SCRA 632 [1992]; People vs. Casinillo, 213 SCRA 777 [1992];
People vs. Florida, 214 SCRA 227 [1992].

of P728,000.00. In the course of the robbery, two members of the gang

raped Maria Fe Catanyag and Estrella Rolago, niece and employee,
respectively of complainant Lacsamana.

FIRST DIVISION

Cash money in the amount of -----------P128,000.00

G.R. No. 104383 * . July 12, 2001

Jewelries worth ------------------------- 600,000.00

PEOPLE
OF
THE
PHILIPPINES, PlaintiffAppellee, v. VALERIANO AMESTUZO y VIAS, FEDERICO
AMPATIN y SABUSAB, ALBINO BAGAS y DALUHATAN and
DIASCORO VIAS y ODAL, accused,

Total ------------------------------- P728,000.00

ALBINO BAGAS y DALUHATAN, Accused-Appellant.

DECISION
KAPUNAN, J.:
One of the cardinal rules of criminal law is that the guilt of the accused
must be proven beyond reasonable doubt by the prosecution. If the
inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence does
not fulfill the test of moral certainty and is not sufficient to support a
conviction. 1 In the present case, there being a doubt as to the guilt of

On February 27, 1991, accused-appellant Albino Bagas, Valeriano

Amestuzo, Federico Ampatin, Dioscoro Vias and four other accused,
whose identities are unknown and who are still at large up to the present,
were charged with the complex crime of robbery in band with double
rape under the following information:
That on or about the 22nd day of February 1991, in Kalookan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, all armed with guns, with intent of gain, and by means of
violence, threats and intimidation upon the person of Perlita delos Santos
de Lacsamana, did then and there willfully, unlawfully and feloniously
take, rob and carry away the following, to wit:

all belonging to said complainant, to the damage and prejudice of the

latter, in the aforesaid amount of P728,000.00; and on the occasion
thereof, said accused conspiring together and mutually helping one
another likewise by means of force and violence and with the use of their
weapons, willfully, unlawfully and feloniously have sexual intercourse
with Fe Catanyag y Cabaero and Estrella Rolago y Madrid both residents
of said house, against their will and without their consent.
Contrary to law.2crlwvirtualibrry
On arraignment, all the accused including accused-appellant Albino
Bagas pleaded Not Guilty to the charge. Thereafter, trial ensued.
The facts as found by the trial court and as presented in the Solicitor
Generals Brief are as follows:

This is an appeal from the decision dated November 28, 1991 of the
Regional Trial Court, Branch 131, Kalookan City in Criminal Case No.
36930 finding accused-appellant Albino Bagas guilty of the complex
crime of robbery in band with double rape and sentencing him
accordingly.

The incident happened at the compound of Block 5, Road 32, Phase II of

the Sacred Heart Village in Kalookan City (pp. 6-7, TSN, July 2, 1991).
In the compound are the main house where Mrs. Perlita Lacsamana
resides and another house which serves as the office and quarters for
Lacsamanas employees. In between of these two houses is about three
(3) meter-wide area where the dirty kitchen and the garage are found. In
the first floor of the main house is the masters bedroom, and on the
second floor is the guestroom (pp. 6-8, TSN, July 2, 1991).

At about nine-thirty in the evening of February 22, 1991, a group of

eight armed men wearing masks entered the house of complainant Perlita
delos Santos Lacsamana at Sacred Heart Village, Kalookan City and
robbed the said premises of valuables in the total amount

While at the masters bedroom on that particular evening at about 9:30

p.m., Lacsamana overheard her maid, cried aray, aray, aray. She
immediately went out but as soon as she opened the door of her room,
two (2) men (one of them is accused Amestuzo while the other one

accused-appellant, the constitutional presumption of innocence stands

and he must be acquitted.

58

remains unarrested) poked their guns on her. At gun point, Lacsamana,

Lea, Edwin, and Belen were forcibly brought to the second floor of the
main house. Thereat, Lacsamana saw four (4) other male persons
ransacking her premises. The said male persons, armed with guns and
knives, tied her including all her employees and members of her
household with the use of torn electric fan wire and television wire. After
that they were told to lie down with face against the floor but a minute
later she was asked where the masters bedroom is and when she
answered that it is on the ground floor, she was again forcefully brought
down. On her way down, she saw, aside from the six (6) male persons
who were inside her house, two (2) other male persons (later identified
as accused Ampatin and Vias) outside the main house but within the
compound (pp. 8-10, TSN, July 2, 1991).
Once they were already inside the masters bedroom, the six (6 ) armed
male persons (two (2) of them were Amestuzo and Bagas) ransacked the
same and took all her monies, jewelries, shoes, jackets, colored
television and imported wine. Likewise, aforesaid accused ate the foods
found by them in their kitchen. (pp.10-11, 13, TSN, July 2, 1991).
After ransacking the room, two (2) of the accused, one (1) of them is
Amestuzo, brought Estrella Rolago inside her room and afterwhich she
was in turn brought to the guest room. Thereat she heard Rolago
pleading Maawa kayo, maawa kayo then after ten (10) minutes, Rolago,
with bloodstain on her shorts, was brought in back to the guest room (pp.
13-14, TSN, July 2, 1991). Rolago was raped by Amestuzo (pp. 17-20,
TSN, July 3, 1991).
Almost simultaneously, Bagas likewise sexually assaulted and ravished
Fe Catanyag (pp. 38-40, TSN, July 3, 1991; pp. 2-5, TSN, July 4, 1991).
Thereafter, Bagas shouted at her to stand up and although she was
experiencing pain on her private part which was bleeding at that time,
she stood up, dressed up and proceeded to the servants quarter (pp. 4-5,
TSN, July 4, 1991).
Thereafter, Mrs, Lacsamana shouted for help. Sensing that the accused
had already left, they locked the door. With the help of her employer and
co-employees, more particularly Nanding, she and Rolago were brought
the nearby Neopolitan Clinic and from there they proceeded to the St.
Lukes Hospital where Dr. Brion treated Catanyag and Rolago (pp. 6-7,
TSN, July 4, 1991; pp. 19-20, TSN, July 3, 1991).3crlwvirtualibrry
On November 28, 1991, the trial court rendered judgment convicting all
the accused. The dispositive portion of the trial courts decision reads as
follows:
WHEREFORE, this Court renders judgment CONVICTING accused
VALERIANO AMESTUZO y VIAS, FEDERICO AMPATIN y
SABUSAB, ALBINO BAGAS y DALUHATAN, DIOSCORO VINAS y
ODAL of the complex crime of ROBBERY IN BAND WITH DOUBLE
RAPE and sentences each of them to suffer imprisonment of DOUBLE

RECLUSION PERPETUA and orders them to jointly and severally

indemnify to complainant Perlita delos Santos de Lacsamana the amount
of P800,000.00 representing the value of monies and properties taken
forcibly away by the accused and to indemnify, jointly and severally,
Ma. Fe Catanyag and Estrella Rolago the amount of FIFTY
THOUSAND (P50,000.00) PESOS each.

complainants for identification without the benefit of counsel, accusedappellant avers, is a flagrant violation of the constitutional prerogative to
be assisted by counsel to which he was entitled from the moment he was
arrested by the police and placed on detention. He maintains that the
identification was a critical stage of prosecution at which he was as
much entitled to the aid of counsel as during the trial proper.

SO ORDERED.4crlwvirtualibrry

The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III
of the 1987 Constitution, or the so-called Miranda rights, may be
invoked only by a person while he is under custodial
investigation. 6 Custodial investigation starts when the police

From the judgment of conviction by the trial court, only herein accusedappellant Bagas appealed to this Court. His appeal is based mainly on (1)
the alleged deprivation of his constitutional right to be represented by
counsel during his identification, (2) the trial courts error in giving due
weight to the open court identification of him which was based on a
suggestive and irregular out-of-court identification, and (3) the trial
courts improper rejection of his defense of alibi.
Accused-appellant maintains that from the time he was arrested until he
was presented to the complainants for identification, he was deprived of
the benefit of counsel. He narrates the circumstances surrounding his
arrest and investigation as follows:
On February 26, 1991, four days after the alleged incident, a group of
policemen together with accused Federico Ampatin, who was then a
suspect, went to the handicrafts factory in NIA Road, Pasay City where
accused-appellant was working as a stay-in shell cutter. They were
looking for a certain Mario and searched the first and second floors of
the building. Failing to find said Mario, the police hit Ampatin at the
back of his neck with a gun and uttered, Niloloko lang yata tayo ng
taong ito and Magturo ka ng tao kahit sino. It was at this juncture that
Ampatin pointed to accused-appellant Bagas as he was the first person
Ampatin chanced to look upon.
Thereafter, he was arrested and made to board the police vehicle together
with accused Ampatin. While on board the jeep, accused Ampatin told
him that he (Ampatin) committed an error in pointing him out to the
police, namumukaan lang niya ako, napagkamalian lang niya ako. They
were brought to the Urduja Police Station in Kalookan City and placed
under detention together with the other two accused, Amestuzo and Vias.
When the complainants arrived, accused-appellant was brought out,
instructed to turn to the left and then to the right and he was asked to
talk. Complainant Lacsamana asked him if he knew accused Amestuzo
and Vias. Accused-appellant answered in the negative. The policemen
told the complainants that accused-appellant was one of the suspects.
This incited complainants to an emotional frenzy, kicking and hitting
him. They only stopped when one of the policemen
intervened. 5crlwvirtualibrry
Accused-appellant alleges that the trial court committed a serious error
when it deprived him of his constitutional right to be represented by a
lawyer during his investigation. His singular presentation to the

investigation is no longer a general inquiry into an unsolved crime but

has begun to focus on a particular suspect taken into custody by the
police who starts the interrogation and propounds questions to the person
to elicit incriminating statements. 7 Police line-up is not part of the
custodial investigation; hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage. 8This was settled in the
case of People vs. Lamsing 9 and in the more recent case of People vs.
Salvatierra. 10 The right to be assisted by counsel attaches only during
custodial investigation and cannot be claimed by the accused during
identification in a police line-up because it is not part of the custodial
investigation process. This is because during a police line-up, the process
has not yet shifted from the investigatory to the accusatory 11 and it is
usually the witness or the complainant who is interrogated and who
gives a statement in the course of the line-up. 12crlwvirtualibrry
Hence, herein accused-appellant could not yet invoke his right to counsel
when he was presented for identification by the complainants because
the same was not yet part of the investigation process. Moreover, there
was no showing that during his identification by the complainants, the
police investigators sought to elicit any admission or confession from
accused-appellant. In fact, records show that the police did not at all talk
to accused-appellant when he was presented before the complainants.
The alleged infringement of the constitutional rights of the accused while
under custodial investigation is relevant and material only to cases in
which an extra-judicial admission or confession extracted from the
accused becomes the basis of his conviction. 13 In the present case, there
is no such confession or extra-judicial admission.
Accused-appellant also makes much ado about the manner in which he
was presented to the complainants for identification. It is alleged that the
identification was irregular as he was not placed in a police line-up and
instead, made to stand before the complainants alone.
Again, the contention has no merit. As aptly pointed out by the Solicitor
General, there is no law requiring a police line-up as essential to a proper
identification. 14 The fact that he was brought out of the detention cell
alone and was made to stand before the accused by himself and
59

unaccompanied by any other suspects or persons does not detract from

the validity of the identification process.

the spontaneity of their subsequent identification and therefore, its

objectivity.

However, we agree that complainants out-of-court identification of

accused-appellant was seriously flawed as to preclude its admissibility.
In resolving the admissibility and reliability of out-of-court
identifications, we have applied the totality of circumstances test
enunciated in the case of People vs. Teehankee 15 which lists the

In a similar case, People vs. Cruz, 17 accused Cruz, a suspected coconspirator in a case of robbery with homicide, was presented to the
witnesses alone and made to walk and turn around in their presence.
Then the police pointed out to the accused and several others as the
persons suspected by the police as the perpetrators of the robbery
committed in Goso-on. The Court, in rejecting the subsequent
identification made by the witnesses, reasoned that:

following factors:
xxx (1) the witness opportunity to view the criminal at the time of the
crime; (2) the witness degree of attention at that time; (3) the accuracy of
any prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length of time
between the crime and the identification; and (6) the suggestiveness of
the identification process.
The out-of-court identification of herein accused-appellant by
complainants in the police station appears to have been improperly
suggestive. Even before complainants had the opportunity to view
accused-appellant face-to-face when he was brought our of the detention
cell to be presented to them for identification, the police made an
announcement that he was one of the suspects in the crime and that he
was the one pointed to by accused Ampatin as one of culprits. According
to accused-appellant Q: When the complaining witnesses arrived at the Urduja precinct at that
time you mentioned, were you immediately kicked by them?
A: No, sir.
Q: How long a time from the time they arrived at the Urduja precinct to
the time that you were kicked by them?
A: Around 10 minutes, sir.
Q: And how were you identified or recognized by the complaining
witnesses?
A: Because upon arrival at the Urduja police station, the policemen
announced that I am one of the suspects in this case and thereafter, the
complainants started kicking me, sir.
Q: So that the announcement of the policemen that you were one of the
suspects came first then they started kicking you?
A: Yes, sir.16crlwvirtualibrry
It is, thus, clear that the identification was practically suggested by the
police themselves when they announced to the complainants that
accused-appellant was the person pointed to by Ampatin. The fact that
this information came to the knowledge of the complainants prior to
their identification based on their own recall of the incident detracts from

The manner by which (witnesses) were made to identify the accused at

the police station was pointedly suggestive, generated confidence where
there was none, activated visual imagination, and all told, subverted their
reliability as eyewitnesses.
In Tuason vs. Court of Appeals, 18 an NBI agent first pointed the
accused to the witnesses after which the latter identified the accused. The
Court held that such identification was doubtful as the same was not
spontaneous and independent as there was improper suggestion coming
from the NBI agent. We ruled that a show-up or the presentation of a
single suspect to a witness for purposes of identification is seriously
flawed as it constitutes the most grossly suggestive identification
procedure now or ever used by the police.
Likewise in People vs. Meneses, 19 where the accused was presented to
the lone witness as the suspect in the crime inside the police
investigators office, the Court pronounced that although the police
officer did not literally point to the accused as in the Tuason case, the
confrontation and the identification proceeding therefrom was
objectionable.
The Court also finds that the trial court erroneously rejected accusedappellants alibi.
Accused-appellant clearly and positively testified that at the time of the
crime, February 22, 1991, he was working as a shell cutter in a factory in
Pasay City where he was a stay-in employee. He rendered overtime work
until ten oclock in the evening that night because they had to rush work.
After ten p.m., he, together with his stay-in co-workers, went to sleep.
Four days later, he was arrested when accused Ampatin randomly
pointed him out to the police. 20crlwvirtualibrry
This testimony of accused-appellant was materially corroborated by two
of his co-employees who were with him on the night of the incident.
Rodolfo Rosales, his co-worker, testified that he worked overtime until
10 p.m. in the Pasay City factory together with accused-appellant. Upon
finishing work, they went to sleep in their quarters on the second floor of
the building because they were stay-in employees of the
factory. 21 Another co-worker of accused-appellant, Clemente Gahelan,

was similarly offered as a witness to corroborate Rosales testimony and

his
testimony
was
duly
admitted
by
the
22
prosecution. crlwvirtualibrry
The employer of accused-appellant Rolando Ocasla, likewise testified
that on the night of the incident, accused-appellant worked overtime in
his factory until 10 p.m. After 10 p.m., he personally locked the door of
the premises which was the only means of ingress and engress, as he
always does because it was his means of preventing any pilferage of
materials. He was the only one who had keys to said door. Around five
a.m. of the following day, he woke up accused-appellant and told him to
drink his coffee. He also declared that there was nothing unusual about
accused-appellants behavior either, before, during or after the date of the
alleged crime.23crlwvirtualibrry
The defense of alibi or denial assumes significance or strength when it is
amply corroborated by a credible witness. 24 And to be given weight,
accused must prove not only that he was somewhere else when the crime
was committed but that he was so far away that it was physically
impossible for him to be present at the crime scene or its immediate
vicinity at the time of its commission. 25crlwvirtualibrry
In this case, we find accused-appellants alibi sufficiently corroborated by
the testimonies of his co-workers and his employer who categorically
stated that they were with accused-appellant on the night of the crime.
There was no evidence that these witnesses were related to accusedappellant; neither was it shown that they had any personal interest nor
motive in the case. As impartial credible witnesses, their testimonies
cannot be doubted absent a clear showing of undue bias or prejudice, or
convincing proof of the impropriety of their motives to testify for the
accused. 26crlwvirtualibrry
Accused-appellant vehemently argues that it was physically impossible
for him to have been present at the scene of the crime or its immediate
vicinity at the time of its commission. First, the crime was committed
around 9:30 in the evening of February 22, 1991. Accused-appellant, as
well as two other witnesses, testified that he worked in the factory until
10 p.m. that night and went to sleep after. Second, there was only one
door in the factory which was the only means of entrance and exit and
this door was kept locked by witness Ocasla after ten p.m. that night.
Ocasla was the only person who had a key to this door. Third, the
windows on the first floor of the building consisted of hollow blocks
with small holes which do not allow passage. The second and third floor
windows were 14 and 21 feet high, respectively. There was no possible
means of exit through these windows without accused-appellant getting
hurt or injured. Lastly, the crime took place in Kalookan City around
9:30 p.m. while accused-appellants place of work was in Pasay City.
Assuming for the sake of argument that he was able to leave the
60

premises after 10 p.m. that night, by the time he reaches Kalookan, the
crime would have already been completed.
The Court has held that where an accused sets up alibi as a defense, the
courts should not be too readily disposed to dismiss the same, for, taken
in the light of all the evidence on record, it may be sufficient to reverse
the outcome of the case as found by the trial court and thereby rightly set
the accused free. 27 Though inherently weak as a defense, alibi in the
present case has been sufficiently established by corroborative
testimonies of credible witnesses and by evidence of physical
impossibility of accused-appellants presence at the scene of the crime.
Alibi, therefore, should have been properly appreciated in accusedapellants favor.
Another significant evidence which the trial court failed to consider is
the voluntary confession of accused Federico Ampatin absolving
accused-appellant Bagas of the crime. Ampatins testimony was clear and
categorical:
Q: When you reached that house where Bagas was working what
happened?

Q: So what did you do when you were ordered to point to anyone?

A: I was there at that time.

A: Because at that time I cannot yet stand up he forced me to go

downstairs, sir.

xxx

xxx
Q: Were you able to reached (sic) the ground floor?
A: Yes, sir.
Q: And what happened there?
A: I pointed to Albino Bagas, sir, because he was the only first person I
saw there at the ground floor while his companions were on the other
side because I dont want to get hurt anymore, Your Honor.
Court: When you see (sic) Bagas was lying face down at the tme you
pointed to him?
A: Yes, your Honor.
Court: You did not bother to look at his face?

A: All the persons were ordered to lie down, sir.

A: No more Your Honor because I was in a hurry to point to somebody

because I was afraid that I will be hurt again, Your Honor.

xxx

xxx

Q: And what did they do to you?

Court: You mean to say at the time you pointed to Albino Bagas you did
not know him?

A: Immediately I was instructed to follow the policemen who went

upstairs, sir.
Q: Why did that policemen go upstairs?
A: He was looking for Mario, sir.
xxx
Q: Upon reaching the second floor, what happened there?
A: They did not see any person there, sir.
Q: What followed next?
A: P/O Melmida pistol-whipped me, sir.
Q: Where were you hit?
A: On the left portion of my neck, sir.
Q: Did Melmida utter any remark while hitting you?
xxx
A: He told me to point to somebody else, sir, saying these words,
Magturo ka ng tao kahit sino.
xxx

A: No I dont know him, Your Honor.28crlwvirtualibrry

Ampatin and accused-appellant were charged as co-conspirators in the
crime of robbery with rape. As a co-accused, it would have been more
consistent with human nature for Ampatin to implicate accused-appellant
if indeed he was one of the gang. In fact, the Court has recognized that
as is usual with human nature, a culprit, confessing a crime is likely to
put the blame as far as possible on others rather than himself. 29 The fact
that he testified to the innocence of a co-accused, an act which resulted
in no advantage or benefit to him and which might in fact implicate him
more, should have been received by the trial court as an indicum of the
truth of Ampatins testimony and the innocence of herein accusedappellant. Ampatins testimony, therefore, should have been given weight
by the trial court. More so, the same was substantially corroborated by
another witness, Rodolfo Rosales, accused-appellants co-worker and
who was present when accused-appellant was arrested. Rosales testified
as follows:
Q: Now, do you know when was Albino Bagas arrested in connection
with this case?
A: Last February 25, that was Monday, sir.

Q: xxx what was the reaction of Albino Bagas when he was being
pointed to and arrested by the arresting officers?
A: The situation goes like this, sir, the policemen arrived there and they
were holding the persons of Ampatin and they were looking for a person
named Mario that was what I heard, sir, and then the policemen forced
us to be identified or to be seen by the guide. Ampatin at first at the
ground floor but since there was nobody there by the name of Mario they
proceeded to the second floor and upon looking one of the policemen
shouted, Wala rito, niloloko lang tayo ng taong ito.
Court: Then what happened next?
Witness: And I noticed that the reaction of Federico Ampatin that he was
afraid, so, because of fear he was able to point on the person of Albino
Bagas but when asked he does not know the name of Albino Bagas, Your
Honor.
Atty. Pacis: Before going to the second floor, because according to you
the arresting officers and the guide went to the second floor, was Albino
Bagas at the ground floor seen by the guide and the policemen?
A: We were the first group of persons seen by the policemen and Albino
and I were beside each other, sir.
Q: And you want to impressed (sic) upon this Honorable Court that at
first at the ground floor, Albino Bagas was not identified by this Ampatin
before going to the second floor?
A: The guide was not able to identify the person of Albino Bagas and
that was the reason why they still made searches at the second floor, sir.
Q: How was Federico Ampatin able to identify Albino Bagas when he
was accompanied by the policemen went downstairs?
A: I noticed from the reaction of Federico Ampatin that he was afraid
after hearing the shout of the policemen, sir.
xxx 30crlwvirtualibrry
The testimony of witness Rosales corroborates Ampatins declaration in
court that he does not know herein accused-appellant and merely pointed
to him out of fear of the police. These testimonies remain unrebutted by
the prosecution as the arresting officers were not presented to refute or
deny the same. The foregoing testimonies exculpating accused-appellant
have sufficiently cast at least a shadow of doubt as to his guilt.
WHEREFORE , the decision of the trial court convicting accusedappellant Albino Bagas of the crime of robbery with multiple rape is
hereby REVERSED and he is ACQUITTED of the crime charged. His

Q: And where were you when he was arrested?

61

immediate release is hereby ordered unless he is held for some other

valid charges.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ.,
concur.
Endnotes:

62

* This case was transferred to the ponente pursuant to the resolution in AM No. 22 Id., at 17.
00- 9-03-SC. - Re: Creation of Special Committee on Case Backlog dated
23 TSN, August 21, 1991, pp. 14-23.
february 27, 2001
1 People v. Libag, 184 SCRA 707 (1990).

24 People v. Entila, 325 SCRA 226 (2000).

2 Rollo, pp. 5-6.

25 People v. Alib, 322 SCRA 93 (2000).

3 Id., at 138-140.

26 People v. Umali, 193 SCRA 493 (1991).

4 Id., at 44.

27 People v. Uson, 224 SCRA 425, 435-436

5 TSN, August 14, 1991, pp. 20-21, TSN , August 15, 1991, pp. 2-10.

28 TSN of August 22, 1991, pp. 29-30.

6 People v. Duero, 104 SCRA 379 (1981); People v. Andal, 279 SCRA 47429 People v. Victor, 181 SCRA 818 (1990).
(1997).
30 TSN of August 14, 1991, pp. 5-8.
7 People v. Del Rosario, 305 SCRA 740 (1990); People v. Labtan, 320 SCRA
140 (1999).
8 People v. Lamsing, 248 SCRA 471 (1995); People v. Dela Torre, 294 SCRA
196 (1998).
9 Ibid.
10 276 SCRA 55 (1997). The case of People v. Lamsing overturns the Courts
prior ruling in the case of People vs. Macam, 238 SCRA 307, where
identification of an uncounselled accused made in a police line-up at the start of
the custodial investigation was held to be inadmissible.
11 See note 10.
12 People v. Timple, 237 SCRA 52 (1994).
13 People v. Tiadula, 292 SCRA 596 (1998); People v. Sabalones, 294 SCRA
751 (1998).
14 Brief for the Appellee, pp. 7-8 citing the case of People v. Espiritu, 191
SCRA 503 (1990).
15 People v. Teehankee, Jr., 249 SCRA 54, 95 (1995).
16 TSN, August 15, 1991, pp. 8-9.
17 32 SCRA 181 (1970).
18 241 SCRA 695 (1995).
19 288 SCRA 95 (1998).
20 TSN, August 14, 1991, pp. 18-21.
21 Id. at 4-5.
63

SECOND DIVISION
[G.R. No. 122142. May 17, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. JIMMY OBRERO y CORLA, accused-appellant.
DECISION
MENDOZA, J.: HTML
This is an appeal from the decision[1] of the Regional Trial Court,
Branch 12, Manila, finding accused-appellant Jimmy Obrero y Corla
guilty beyond reasonable doubt of the crime of robbery with homicide
and sentencing him to suffer the penalty of reclusion perpetua with all
the accessory penalties, and to indemnify the heirs of the victims Nena
Berjuega and Remedios Hitta in the amount of P50,000.00 each and to
pay the sum of P4,000.00 representing the amount of money stolen.
The information alleged
That on or about August 11, 1989, in the City of
Manila, Philippines, the said accused conspiring and
confederating with one, whose true name, identity
and present whereabouts are still unknown and
mutually helping one another, did then and there
willfully, unlawfully and feloniously with intent of
gain and by means of force, violence and
intimidation, to wit: the said accused take, rob and
carry away the amount of P4,000.00 cash belonging
to Antonio Cabrera against his will, to the damage
and prejudice of said owner in the aforesaid amount
of P4,000.00 Philippine Currency; that on the
occasion thereof and by reason of the aforesaid
robbery, the said accused willfully, unlawfully and
feloniously, with intent to kill, attacked, assaulted
and used personal violence upon the person of
NENA BERJUEGA and REMEDIOS HITTA, by
stabbing them to death, thereby inflicting upon the
said victims mortal stab wounds which were the
direct and immediate cause of their death thereafter.
Contrary to law.
Only accused-appellant had been apprehended. His co-accused Ronnie
Liwanag has been at large. When arraigned, accused-appellant pleaded
not guilty, whereupon, trial ensued.
The prosecution presented three witnesses, namely, Pat. Benjamin Ines,
Dr. Marcial G. Cenido, and Atty. Bienvenido De los Reyes. Pat. Ines of
the Western Police District investigated the robbery with homicide. The
gist of his testimony is to the following effect:

Accused-appellant was a delivery boy employed by Angie Cabosas

whose business was selling chickens to customers. Cabosass business
was located in Blumentritt Street, Sta. Cruz, Manila. CODES
In the morning of August 11, 1989, accused-appellant was asked to
deliver dressed chickens to Emma Cabrera, a regular customer at Room
4-D Gatlin Building, 1344 C.M. Recto Avenue in Sta. Cruz, Manila. At
about 10:20 a.m., accused-appellant came back and turned over to his
employer the amount of P2,000.00. Pat. Ines testified that after receiving
report of the killing, he and Pfc. Ricardo Sibal went to see Angie
Cabosas from which they learned that the latter has received a call from
Emma Cabrera informing Angie that her house had been robbed and her
two maids killed. They were told that accused-appellant had gone to
Pangasinan allegedly to attend the burial of his grandfather. Pat. Ines
said he and P/Lt. Villamor Valdez, Pfc. Sibal, Pfc. Edmundo Cabal and
Pat. Renato Gutierrez went to Rosales, Pangasinan but failed to find
accused-appellant. They were told by the sister of accused-appellant,
Merly Asuncion, that accused-appellant had gone to La Union.
According to Pat. Ines, accused-appellant confided to his sister that he
had allegedly done something wrong in Manila.
Pat. Ines identified two sworn statements, both executed on August 11,
1989, one of which, he said, had been executed by Helen N. Moral, a
househelp of Emma Cabrera, and the other by Angie C. De los Reyes. In
her statement marked Exhibit I, Moral said that upon arriving in the
house at about 12:20 p.m. that day, she and her employers nephew,
Carlos Emerson, found the bodies of the victims sprawled on the floor.
She told Pat. Ines that accused-appellant used to deliver pork and dressed
chicken to their place.
On the other hand, in her sworn statement given on August 14, 1989 and
marked as Exhibit L, Anita C. De los Reyes stated that on August 11,
1989, she had seen accused-appellant and Ronnie Liwanag, their hands
covered with blood, coming out of the Gatlin Building on C.M. Recto
Avenue, Sta. Cruz, Manila.[2]
Pat. Ines testified that on March 3, 1990, he and his group received
information from Pat. Alfredo Que of the Urdaneta Police Station that
accused-appellant was in Cataban, Urdaneta, Pangasinan. Accordingly,
they went to the place indicated and the next day, March 4, 1990, they
were able to apprehend accused-appellant whom they brought to Manila.
Pat. Ines said accused-appellant was positively identified by Anita De los
Reyes as one of those whom she saw running down the stairs of the
Gatlin Building on C.M. Recto Avenue, Sta. Cruz, Manila with blood in
his hands.[3]
Pat. Ines testified that on that same day, March 4, 1990, accusedappellant gave a confession (Exh. O) in writing with the assistance of
counsel, Atty. Bienvenido De los Reyes, in which he admitted
participation in the killing of Nena Berjuega and Remedios Hitta. Pat.
Ines himself executed an affidavit (Exh. P) stating the circumstances of

accused-appellants arrest. He said accused-appellant refused to sign the

booking and information sheet.[4] yacats
Accused-appellants extrajudicial confession was presented in evidence
as Exhibit O.[5] In it, accused-appellant said he started working for
Angie Cabosas in the latters business on Blumentritt Street, Manila three
or four months before the incident. Cabosas and accused-appellants
sister Merly Asuncion, had been neighbors in Rosales, Pangasinan.
Accused-appellants work was to deliver dressed chicken. Emma Cabrera
was a regular customer to whom he made deliveries in the morning. On
August 10, 1989, his fellow employee, Ronnie Liwanag, proposed that
they rob Emma in order to be able to go to La Union to visit his family.
On August 11, 1989, after learning that only two helpers were then at the
residence of Emma Cabrera, accused-appellant and Ronnie decided to
pull the heist. Ronnie covered the mouth of one Nena Berjuega to
prevent her from shouting but, as she tried to run away, Ronnie stabbed
and killed her. Ronnie then gave the knife to accused-appellant who
stabbed the younger maid Remedios Hitta from which she died.
Thereafter, the two proceeded to Blumentritt Street and divided the
money Ronnie had taken from the house of Emma Cabrera. From
Blumentritt Street, Ronnie went to La Union, while accused-appellant
proceeded to Pangasinan. The extrajudicial confession is in Tagalog and
signed by accused-appellant in the presence of Atty. De los Reyes.
The prosecution next presented Atty. Bienvenido De los Reyes, a PC
Captain of the WPD Headquarters, U.N. Avenue, Manila. He said that on
March 4, 1990, he happened to be at Station 7 of the WPD, representing
a client accused of illegal recruitment. He was asked by Lt. Generoso
Javier of the WPD Homicide Section to assist accused-executing an
extrajudicial confession. According to Atty. De los Reyes, he apprised
accused-appellant of his constitutional rights, explaining to him that any
statement made by him could be used against him in court, but accusedappellant said he was willing to give a statement as in fact he did,
confessing to the commission of the crime of robbery with homicide.[6]
The other prosecution witness was Dr. Marcial G. Cenido, medico-legal
officer who conducted autopsies on August 11, 1989 on the victims,
Nena Berjuega and Remedios Hitta. After proper identification (Exh. D)
by the victims employer, Antonio Cabrera, Dr. Cenido prepared a
postmortem report (Exh. A) that Nena Berjuega suffered 16 stab wounds
from which she died. olanski
Dr. Cenido testified that the victim sustained 16 stab wounds which
affected her vital organs, specifically the right and left lungs and the
heart, causing her death. Six of these wounds were fatal so that she could
not survive despite immediate medical attention. He concluded that the
assailant and the victim could be facing each other when wounds nos. 1,
3 and 5 (Exhs. B-1, B-2, and B-4, respectively) were inflicted and that
the assailant may have been on the left lateral side of the victim when he
inflicted wound no. 8 (Exh. B-5) and at the victims back when assailant
inflicted wound no. 16 (Exh. B-6). He said that there could be one or
64

more assailant who inflicted these wounds by using a single bladed

weapon.[7]
Dr. Cenido likewise prepared a postmortem report (Exh. F) that
Remedios Hitta suffered 12 stab wounds from which she died.
Dr. Cenido testified that the victim sustained 12 stab wounds with seven
fatal ones that caused her death. The fatal wounds damaged her left and
right lungs and the heart that she would not survive despite immediate
medical attention. He observed that in wounds nos. 1, 2 and 3 (Exhs. G1, G-2, and G-3, respectively), the assailant and the victim could be
facing each other, while in wounds nos. 4, 9 and 11 (Exhs. G-4, G-6, and
G-7, respectively), the assailant could have been at the back of the
victim. He said that there could be one or more assailant who inflicted
these wounds using a single bladed weapon.[8]
Dr. Cenido prepared the certificates of death of the victims, Nena
Berjuega and Remedios Hitta (Exhs. C and H). He stated that the
weapon used on both victims could have been the same and that both
victims sustained multiple stab wounds.[9]
With the testimonies of Pat. Ines, Atty. De los Reyes, and Dr. Cenido and
the extrajudicial confession (Exh. O), as well as the sworn statements of
Helen Moral (Exh. I) and Anita De los Reyes (Exh. L), the prosecution
rested its case.
The defense presented, as its sole witness, accused-appellant Jimmy
Obrero y Corla. Accused-appellant testified that he had worked for
Angie Cabosas in Blumentritt Street for four (4) months before the
incident in this case. Angie was a neighbor of his sister, Merly Asuncion,
in Pangasinan. Angies business was selling dressed chickens. Accusedappellant said that at about 9:00 a.m. on August 11, 1989, he delivered
dressed chickens to Emma Cabreras residence on C.M. Recto Avenue.
He came back from his errand at around 10:20 a.m. and remitted the
amount of P2,000.00 which had been paid to him. He denied
participation in the commission of the crime and claimed that he was
arrested without a warrant in Pangasinan. He claimed that, after being
informed of the charges against him, he was beaten up and detained for a
week and made to execute an extrajudicial confession. He denied having
known or seen Atty. De los Reyes before and stated that he did not
understand the contents of the extrajudicial confession which he signed
because he does not know how to read.[10]
On August 31, 1995, the trial court rendered its decision, the dispositive
portion of which reads:
WHEREFORE, this Court finds accused JIMMY
OBRERO Y CORLA, guilty beyond reasonable
doubt of the crime of Robbery with Homicide,
defined and punishable under Article 294(a) of the
Revised Penal Code, and he is hereby sentenced to
suffer the penalty of reclusion perpetua, with all the

accessory penalties provided by law. He is further

condemned to pay the heirs of the victims, Remedios
Hitta and Nena Berjuega the sum of FIFTY
THOUSAND (P50,000.00) PESOS each as civil
indemnity for their death and the additional sum of
P4,000.00 as the amount of money taken, without
subsidiary imprisonment in case of insolvency.
His immediate transfer to the National Bilibid
Prisons, Muntinlupa is hereby ordered.
SO ORDERED. haideem
Hence, this instant appeal. Accused-appellant assails the validity of this
extrajudicial confession which forms the basis of his conviction for the
crime of robbery with homicide. He claims that Atty. De los Reyes, who
assisted him in executing his confession, was not the counsel of his own
choice. That was the reason, he said, he refused to sign the booking and
information sheet. He said he signed the extrajudicial confession five
times as a sign that it was involuntarily executed by him.
Art. III, 12 of the Constitution provides in pertinent parts:
(1)......Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel, preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing and
in the presence of counsel.
(2)......No
torture,
force,
violence,
threat,
intimidation or any other means which vitiate the
free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar
forms of detention are prohibited.
(3)......Any confession or admission obtained in
violation of this or Section 17 shall be inadmissible
in evidence against him.
There are two kinds of involuntary or coerced confessions treated in this
constitutional provision: (1) those which are the product of third degree
methods such as torture, force, violence, threat, intimidation, which are
dealt with in paragraph 2 of 12, and (2) those which are given without
the benefit of Miranda warnings, which are the subject of paragraph 1 of
the same 12.
Accused-appellant claims that his confession was obtained by force and
threat. Aside from this bare assertion, he has shown no proof of the use
of force and violence on him. He did not seek medical treatment nor

even a physical examination. His allegation that the fact that he was
made to sign the confession five times is proof that he refused to sign it.
To begin with, what accused-appellant claims he was made to sign five
times is not the same confession (Exh. O) but different parts thereof. He
signed his name on page 1 to acknowledge that he had been given the
Miranda warnings. (Exh. O-3) Then, he signed again as proof that after
being given the Miranda warnings he agreed to give a statement. (Exh.
O-6) Next, he signed again his name at the end of page 2 to authenticate
that page as part of his confession. (Exh. O-7) Fourth, he signed the third
page at the end of his confession. (Exh. O-10) Fifth, he signed his name
again on the third page in which the jurat appears. (unmarked, [p. 3] of
Exh. O)
We discern no sign that the confession was involuntarily executed from
the fact that it was signed by accused-appellant five times. kirsten
Nor can it be inferred that the confession was involuntarily executed
from the fact that accused-appellant refused to sign the booking and
information sheet. For if he were simply forced to execute the
extrajudicial confession and sign it for five times, there is no reason the
police was not able to make him sign the said sheet as well. The
inference rather was that no force was used to make accused-appellant
execute the confession, otherwise, he could also have been forced to sign
the booking and information sheet.
Extrajudicial confessions are presumed voluntary, and, in the absence of
conclusive evidence showing the declarants consent in executing the
same has been vitiated, such confession will be sustained.
Moreover, the confession contains details that only the perpetrator of the
crime could have given. No one except accused-appellant could have
stated that it was he who killed the younger maid of Emma Cabrera
(Remedios Hitta), that he committed the crime together with his
townmate, Ronnie Liwanag, and that he used the same weapon given to
him by Ronnie after the latter had stabbed and killed the other helper
(Nena Berjuega), details which are consistent with the medico-legal
findings that the wounds sustained by the two victims were possibly
caused by one and the same bladed weapon. It has been held that
voluntariness of a confession may be inferred from its being replete with
details which could possibly be supplied only by the accused, reflecting
spontaneity and coherence which cannot be said of a mind on which
violence and torture have been applied.[11] When the details narrated in
an extrajudicial confession are such that they could not have been
concocted by one who did not take part in the acts narrated, where the
claim of maltreatment in the extraction of the confession is
unsubstantiated and where abundant evidence exists showing that the
statement was voluntarily executed, the confession is admissible against
the declarant. There is greater reason for finding a confession to be
voluntary where it is corroborated by evidence aliunde which dovetails
with the essential facts contained in such confession.[12] barth
65

But what renders the confession of accused-appellant inadmissible is the

fact that accused-appellant was not given the Miranda warnings
effectively. Under the Constitution, an uncounseled statement, such as it
is called in the United States from which Art. III, 12(1) was derived, is
presumed to be psychologically coerced. Swept into an unfamiliar
environment and surrounded by intimidating figures typical of the
atmosphere of police interrogation, the suspect really needs the guiding
hand of counsel.

undertake relative to his constitutional right,

patrolman?

Now, under the first paragraph of this provision, it is required that the
suspect in custodial interrogation must be given the following warnings:
(1) He must be informed of his right to remain silent; (2) he must be
warned that anything he says can and will be used against him; and (3)
he must be told that he has a right to counsel, and that if he is indigent, a
lawyer will be appointed to represent him.[13]

Q......Now, Patrolman, did you indicate his

constitutional rights that you stated in this written
statement of Jimmy Obrero?

In the case at bar, the prosecution presented Pat. Ines and Atty. De los
Reyes to establish that the above-enumerated requisites were fully
satisfied when accused-appellant executed his extrajudicial confession.
Pat. Benjamin Ines testified:[14]
Q......What happened during the investigation of the
accused?
A......He consented to give a written statement to me,
sir.
Q......Now, when accused Jimmy Obrero consented
to give statement, Patrolman, was he assisted by
counsel?
A......Yes, sir, we provided him with a lawyer.
Q......And who was that lawyer that was provided by
you?
A......Atty. Bienvenido De los Reyes, sir.
Q......And who personally took down the statement
of the accused?
A......I was the one who personally took the
statement of accused Obrero. Jksm
Q......Do you know what was the gist of that
statement that was given to you, what was it all
about?
A......Its all about the admission of Jimmy Obrero,
the gruesome slaying of two househelps.
....
Q......Before having taken down the admission of
Jimmy Obrero, what investigative steps did you

A......I informed Jimmy Obrero of his constitutional

right to remain silent, to have an attorney; that
everything that he will say will be used for or against
him. He, however, consented to proceed with the
written statement.

A......Yes, sir, I put it on the statement which he

voluntarily gave.
Q......And will you please tell us which part of the
statement of Jimmy Obrero is it indicated, the
consent which he gave after having pointed out to
him his constitutional right?
A......This portion sir, this "sagot-opo" and then it
was further affirmed by his signature over his
typewritten name, sir.
For his part, Atty. De los Reyes testified:[15]
Q:......Were you able to confront the suspect at that
time, herein accused? Chief
A:......Yes, sir, I told him for the purpose of
investigation -- custodial investigation I can render
my services to him and afterwards avail the services
of another lawyer and I told him his rights under the
law, sir.

will be utilized against him in the court with respect

to the case -- and despite of that, he said he wanted
to give his statement to the police in my presence.
Q......Was he able to give statement to the police?
A......Yes, sir. I was there inside the room with the
client and observing fairly [when he] gave statement
voluntarily.
Q......Was that statement taken down into writing?
A......In a question and answer form, sir.
Indeed, the waiver signed by accused-appellant reads:
MGA
KARAPATAN
AYON
BINAGONG SALIGANG BATAS:

SA

ATING

Ikaw, JIMMY OBRERO y CORLA, ay aking

isasailalim sa pagsisiyasat sa salang Pagnanakaw na
may kasamang Pagpatay, nais kong ipaalam sa iyo
ang iyong mga karapatan ayon sa ating Binagong
Saligang Batas:
1. Karapatan mo ang manahimik at huwag sagutin
ang mga itatanong ko sa iyo;
2. Karapatan mo ang kumuha ng isang abogado na
iyong sariling pili na maaaring makatulong sa iyo sa
imbistigasyon na ito at kung hindi ka makakakuha
ng iyong abogado ay bibigyan ka namin ng isa na
walang bayad para makatulong sa iyo; Esm

Q:......What was the reply of Jimmy Obrero, the

accused, in this case at that time you confronted
Jimmy Obrero?

3. Karapatan mo rin na malaman na ang lahat ng

iyong sasabihin dito sa iyong salaysay ay maaaring
gamiting katibayan o ebidensya laban o pabor sa iyo
o sa kanino mang tao sa alinmang hukuman dito sa
Pilipinas.

A:......He is willing at that time and [voluntarily]

gave his affirmation that he wanted to secure my
services, sir.

Ngayon na naipaalam ko na sa iyo ang iyong mga

karapatan, nais mo pa bang magbigay ng iyong
malaya at kusang loob na salaysay?

....

SAGOT : (ni Jimmy Obrero y Corla)Opo.

Q......After having manifested that he will retain your

services as counsel for the investigation, Atty. De los
Reyes, what happened next?

TANONG: Kung ganoon ay sabihin mo ulit ang

iyong pangalan at lagdaan mo ito sa ibabaw ng iyong
pangalan na ipipirma o imamakinilya ko?

A......I told him the rights under the Constitution, the

right to remain silent, the right to secure lawyer, the
right not to give statement, the right not to be placed
in any identification procedure in a police line up,
and I told him that all the evidences he might give

(Sgd.) JIMMY OBRERO y CORLA

There was thus only a perfunctory reading of the Miranda rights to
accused-appellant without any effort to find out from him whether he
wanted to have counsel and, if so, whether he had his own counsel or he
66

wanted the police to appoint one for him. This kind of giving of
warnings, in several decisions[16]of this Court, has been found to be
merely ceremonial and inadequate to transmit meaningful information to
the suspect. Especially in this case, care should have been scrupulously
observed by the police investigator that accused-appellant was
specifically asked these questions considering that he only finished the
fourth grade of the elementary school. Indeed, as stated in People v.
Januario:[17]

our time, we will not work our time during the police
duty, maam.

render illusory the protection given to the suspect during custodial

investigation.[22] Esmso

Q......According to you, you were extending legal

assistance to your client who was charged of illegal
recruitment, do you not consider that conflict of duty
because no less than your organization was the one
investigating that? Esmmis

For these reasons, we hold that accused-appellants extrajudicial

confession is inadmissible in evidence.

Ideally, therefore, a lawyer engaged for an individual

facing custodial investigation (if the latter could not
afford one) should be engaged by the accused
(himself), or by the latters relative or person
authorized by him to engage an attorney or by the
court, upon proper petition of the accused or person
authorized by the accused to file such petition.
Lawyers engaged by the police, whatever
testimonials are given as proof of their probity and
supposed independence, are generally suspect, as in
many areas, the relationship between lawyers and
law enforcement authorities can be symbiotic.
[18] Esmsc

A......I am extending my legal assistance to the client

I am handling the case because if it is true that he
committed the crime then I will back out, if I found
suspicion and there is no proof at all, I go to the
litigation.

Moreover, Art. III, 12(1) requires that counsel assisting suspects in

custodial interrogations be competent and independent. Here, accusedappellant was assisted by Atty. De los Reyes, who, though presumably
competent, cannot be considered an "independent counsel" as
contemplated by the law for the reason that he was station commander of
the WPD at the time he assisted accused-appellant. On this point, he
testified as follows:
Q......Now, whenever there is a crime committed
wherein the member of police to which you belong
or working but could not solve the crime and then
you were designated as counsel to extend legal
assistance to a suspect who is under a custodial
investigation and in that conference with the suspect
you may have inquired confidential information,
what would you do, will you keep it to yourself or
you must have to divulge that to your co-policeman
because you know that?
A......If I am the lawyer, then all the testimonies and
declaration is my preferential right, I can divulge it
even to my fellow officer.
Q......Now, by the way, do you have authority to
practice the law profession, did you get approval or
permit from the civil -A......Previously, when I was at the JAGO, we are
authorized verbally [as long as] it will not hamper

ATTY. ALISUAG:
That is all, Your Honor.[19]
The trial court, agreeing with him, ruled:
As shown in Exhibit "O", accused consented to
giving his extrajudicial confession after he was
informed of rights under custodial investigation, by
affixing his signature thereto (Exhibit "O-3"). And
absent any showing that the assisting lawyer, though
a station commander but of another police station,
was remiss in his duty as a lawyer, this Court holds
that the proceedings were regularly conducted. In
fact, he testified that he first asked the accused if he
is accepting his legal services (TSN, March 5, 1991,
p. 4); that he informed the accused of his Miranda
rights and despite the warning, he decided to give his
confession just the same; that he was at all time
present when the accused was being interrogated
with the accused giving his answers voluntarily
(Ibid, p. 4); that he read to the accused the questions
and answers before he signed his extrajudicial
confession (Ibid, p. 8). Clearly shown was the fact
that Atty. De los Reyes was equal to his duties as a
lawyer than a member of the police force, when he
lend his assistance to the accused during his incustody interrogation.[20]
This is error. As observed in People v. Bandula,[21] the independent
counsel required by Art. III, 12(1) cannot be a special counsel, public or
private prosecutor, municipal attorney, or counsel of the police whose
interest is admittedly adverse to the accused. In this case, Atty. De los
Reyes, as PC Captain and Station Commander of the WPD, was part of
the police force who could not be expected to have effectively and
scrupulously assisted accused-appellant in the investigation, his claim to
the contrary notwithstanding. To allow such a happenstance would

Without the extrajudicial confession, the conviction of accused-appellant

cannot stand. The prosecution tried to introduce circumstantial evidence
of accused-appellants guilt consisting of the sworn statements (Exhs. I
and L) of Helen Moral, the househelp who said accused-appellant used
to deliver dressed chickens to the Cabrera residence, and Anita de los
Reyes who said that on March 11, 1989 she was passing in front of the
Gatlin Building where the killing took place when she saw accusedappellant running down the stairs with blood in his hands. These
statements are likewise inadmissible for being hearsay. Consequently,
there is no identification of accused-appellant.
And while there is evidence of homicide consisting of the corpus delicti,
there is no evidence of the robbery except the confession (Exh. O) of
accused-appellant which, as already stated, is inadmissible. It does not
matter that accused-appellant failed to object to the introduction of these
constitutionally proscribed evidence. The lack of objection did not
satisfy the heavy burden of proof which rested on the prosecution. We
cannot thus affirm the conviction of accused-appellant because of the
procedural irregularities committed during custodial investigation and
the trial of the case. It may be that by this decision a guilty person is set
free because the prosecution stumbled, but we are committed to the
principle that it is far better to acquit several guilty persons than to
convict one single innocent person.
WHEREFORE, the decision in Criminal Case No. 90-82187 of the
Regional Trial Court, Branch 12, Manila, convicting accused-appellant
Jimmy Obrero y Corla of the crime of robbery with homicide is
REVERSED and accused-appellant is hereby ACQUITTED on the
ground of reasonable doubt.
The Director of Prisons is hereby directed to forthwith cause the release
of accused-appellant unless the latter is being lawfully held for another
cause and to inform the Court accordingly within ten (10) days from
notice.
SO ORDERED. MENDOZA, J
Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.
De Leon, Jr., J., on leave.

67

SECOND
[G.R.

DIVISION
No.

187725

January

19,

damage and prejudice of her legal heirs.chanrobles|

lawlibrary

2011]
CONTRARY TO LAW.

BENJAMIN
JESALVA, Petitioner,
PHILIPPINES, Respondent.

v. PEOPLE

OF

THE

DECISION

When arraigned on March 1, 1993, petitioner entered a plea of not guilty

to the offense charged.[11]Thereafter, trial on the merits ensued. In the
course of the trial, two varying versions arose.chanrobles|lawlibrary
Version of the Prosecution

NACHURA, J.:

Before this Court is a Petition for Review[1] on Certiorari under Rule 45

of the Rules of Civil Procedure, seeking the reversal of the Court of
Appeals (CA) Decision[2] dated October 17, 2008, which affirmed with
modification the decision[3] of the Regional Trial Court (RTC) of
Sorsogon, Sorsogon, dated November 18, 1997, finding petitioner
Benjamin Jesalva alias Ben Sabaw[4] (petitioner) guilty beyond
reasonable doubt of the crime of Homicide.
The Facts
On September 11, 1992, the Chief of Police of Sorsogon, Sorsogon, filed
a criminal complaint[5] for Frustrated Murder against petitioner. Four
days thereafter, or on September 15, 1992, the complaint was amended,
charging petitioner with the crime of Murder, as the victim Leticia
Aldemo[6] (Leticia) died on September 14, 1992.[7] After conducting a
hearing on the bail application of petitioner, the Municipal Trial Court
(MTC) of Sorsogon, Sorsogon, on December 18, 1992, granted him bail.
[8] On January 11, 1993, the MTC recommended the filing of Murder
against petitioner, and then ordered the transmittal of the records of the
case
to
the
Provincial
Prosecutor
of
Sorsogon.[9]
Thus, petitioner was charged with the crime of Murder in an
Information[10] dated
January
26,
1993,
which
reads:chanroblesvirtuallawlibrary
That on or about the 9th day of September, 1992 in the
Municipality of Sorsogon, Province of Sorsogon,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill,
taking advantage of superior strength, with treachery and
evident premeditation with the use of motor vehicle and
during night time, did then and there [wilfully],
unlawfully and feloniously attack, assault, manhandle
and use personal violence upon [Leticia] Aldemo,
inflicting upon the latter serious and mortal wounds
which directly caused her death shortly thereafter, to the

The testimonies of the prosecution witnesses are essentially summarized

by the
Office
of
the
Solicitor
General
(OSG),
as
follows:chanroblesvirtuallawlibrary
In the evening of September 8, 1992, witness Gloria
Haboc, together with the victim Leticia Aldemo,
Benjamin Jesalva (petitioner), Elog Ubaldo,[12] Jo
Montales and Romy Paladin were at Nena's place
playing mahjong. A certain Mrs. Encinas and Atty.
Alibanto were also there. At about 10 o'clock that night,
Gloria's group left Nena's place and boarded the Isuzu
panel of petitioner. With the exception of Jo Montales,
the group proceeded to Bistro Christina to eat and drink.
While Gloria had softdrink, Leticia drank two (2) bottles
of beer, and the rest consumed beer and [F]undador until
11:30
in
the
evening.chanrobles|lawlibrary
After they ate and drank, the group, with the exception of
Elog Ubaldo who flagged down a tricycle, once again
boarded petitioner's Isuzu panel as it was usually
petitioner who drove them home. The victim Leticia
Aldemo was seated at the front seat. Petitioner dropped
Romy Paladin at his house first, followed by Gloria, who
resided some 20 meters away from Leticia's house.
While at Gloria's house, petitioner wanted to drink some
more but Gloria told him to defer it until the next day
because the stores were already closed. Gloria then gave
Leticia three (3) sticks of barbecue and accompanied her
and petitioner at the gate. After petitioner and Leticia
boarded the Isuzu [panel], the former immediately
accelerated his car and went to the direction of 6 th Street

petitioner's Isuzu [panel] in St. Rafael Subdivision in

[Our Lady's Village] OLV, Pangpang, Sorsogon. The
police patrol team approached the vehicle and SPO1
Mendoza focused a flashlight at the front portion of the
vehicle to check what was going on. There, SPO1
Mendoza saw petitioner whom he knew since childhood
seated in front of the wheel so he called out his name.
Instead of heeding his call, however, petitioner did not
respond, immediately started the engine and sped away
toward Sorsogon town proper which is directly opposite
his place of residence which is Ticol, Sorsogon,
Sorsogon.chanrobles|lawlibrary
At about the same time that night, Noel Olbes, a driver
for the MCST Sisters holding office at the Bishop's
Compound in Sorsogon, Sorsogon, was also in OLV
Pangpang. While he was walking from a certain Lea's
house, he saw a woman naked from the waist down and
lying on her belly on the highway. Her jeans and [panty]
were beside her. Because it was raining, Olbes pitied her
so he carried her and her things to the shed some 10
meters away. As he was doing so, a tricycle being driven
by Eduardo De Vera focused its headlight in his
direction. De Vera called out, "What is that?" Because
he received no response from Noel Olbes, he decided to
bring his passenger home first and just come back to
check
the
site
later.chanrobles|lawlibrary
Meanwhile, upon reaching the shed, Olbes noticed that
the woman was bleeding that he even got stained with
her blood. Afraid that he might be implicated, he
hurriedly left the woman at Hazelwood such that when
De Vera came back, he no longer found Olbes. De Vera
then proceeded to the police station to report the incident
to
[SPO1]
Balaoro.chanrobles|lawlibrary

instead of towards 7th Street where Leticia's house was

situated.chanrobles|lawlibrary

De Vera, SPO1 Balaoro and SPO1 Sincua eventually

returned to comb the area but to no avail. On their way
back at about 1:15 o'clock (sic) in the morning, they met
Lt. Caguia talking with Noel Olbes. De Vera lost no time
in identifying him to be the man he saw with the
woman. At this point, Olbes admitted the allegation but
professed innocence. He admitted he left the woman in
Hazelwood where the police found her.chanrobles|
lawlibrary

At about 12:20 early morning of September 9, 1992, the

group of SPO1 Edgardo Mendoza (SPO1 Mendoza) of
the Sorsogon PNP Mobile Patrol Section chanced upon

Eventually, Olbes was investigated by the police and was

not released until the next day. However, because the
evidence pointed to petitioner as the last person seen
68

with the victim, a search for him was conducted. He

"surrendered" at one (1) o'clock in the afternoon
accompanied by Fiscal Jose Jayona, his first cousin.[13]
The prosecution highlighted that, per testimony of Gloria Haboc, Leticia
disclosed to her that petitioner was courting Leticia. However, Leticia
told petitioner that they should just remain as friends because she was
already married, and that she loved her handsome husband.
[14] Moreover, the prosecution asseverated that, at around 12:20 a.m. of
September 9, 1992, while conducting patrol in St. Rafael
Subdivision, [15] together with other police officers, Senior Police
Officer 1 Edgardo Mendoza (SPO1 Mendoza), by using his flashlight,
saw petitioner on board his vehicle alone. Upon sight, petitioner
immediately started his vehicle and drove toward the town proper of
Sorsogon, which was directly opposite his residence in Ticol, Sorsogon,
disregarding SPO1 Mendoza's calls.[16] Lastly, at about 1:00 p.m. of
September 9, 1992, petitioner, together with his first cousin Fiscal Jose
Jayona (Fiscal Jayona), went to the police station, wherein he
voluntarily intimated to SPO4 William Desder (SPO4 Desder) that
Leticia jumped out of his vehicle.[17] At about 1:20 p.m. of September
9, 1992, SPO2 Enrique Renoria, together with other police officers,
Fiscal Jayona, and petitioner inspected the place, which petitioner
identified as the place where he and Leticia sat. They found bloodstains
thereat.[18]
After the prosecution presented twelve (12) witnesses, the defense
moved for leave of court to file demurrer to evidence. On February 21,
1994, the defense filed before the RTC, Branch 51, its Demurrer to
Evidence,[19]which the RTC, Branch 51, denied in its Order[20] dated
July 8, 1994. On August 11, 1994, the defense filed a Motion[21] for
Reconsideration of the Order dated July 8, 1994 and Inhibition of
Presiding Judge,which the prosecution opposed. The Presiding Judge of
the RTC, Branch 51, voluntarily inhibited himself from taking any
further action in the case;[22] hence, the case was re-raffled to the RTC,
Branch 52. Acting on the pending Motion for Reconsideration of the
defense, the Presiding Judge of the RTC, Branch 52, denied the same
and set the reception of evidence of the defense.[23]
Version of the Defense
In his relatively short stint on the witness stand, petitioner denied that he
killed Leticia. He testified that he did not have any reason to kill her, and
that he had many reasons why he should not kill her.[24] The
prosecution manifested that it would not conduct a cross-examination on
the person of petitioner as his testimony was tantamount to pure denial.
[25] To prove that there was a broken chain of circumstantial evidence,
the defense presented, as witness, Eduardo de Vera. The CA
narrated:chanroblesvirtuallawlibrary

12. Eduardo de Vera declared that on September 9, 1992

at about 12:30 a.m., he was driving his tricycle en route
to OLV, Pangpang, Sorsogon; upon reaching the junction
of the national road or highway, he saw a man and a
woman three meters from the edge of the road; he
stopped his tricycle and focused the headlight of his
tricycle towards the two; he saw the woman leaning on
the left arm of the man while the man was on a squatting
position; he asked them "what is that?" and did not get
any response; that the man was hiding his face and saw
little blood on the clothes of the woman; he saw the
woman with clothes, a polo shirt and pants; he decided to
bring home his passenger home (sic) first and then
returned to the scene but found no one there; he reported
the matter to [SPO1] Balaoro, who immediately
accompanied him to the place; they searched for the man
and woman but they could not find them; they checked
the Sorsogon Provincial Hospital but nobody had been
brought there; then they proceeded back to the junction
and later to the Sorsogon town proper; upon reaching
Barangay Tugos, they saw [Lt.] Caguia talking with a
man, whom he (De Vera) recognized as the man with the
woman; [Lt.] Caguia directed the man to go to Police
Sub-Station 1; at the police Sub-Station 1, he came to
know the name of the man - Noel Olbes; he saw
bloodstains on Olbes' arms, hands, face and nose; the
police interrogated him about it and he replied that he
just
helped
the
woman.chanrobles|lawlibrary
On cross-examination, he admitted that he has known
[petitioner] for a longtime; and he has good relationship
with him; [petitioner] was his bondsman in Criminal
Case No. 95-3989 for illegal possession of firearms and
because of this, he is indebted to him and he thus wants
to repay his gratitude to [petitioner]; [petitioner]
requested him to be a witness in the case.[26]
Relative to the subsequent events, the CA summarized the testimonies of
SPO1
Eduardo
Balaoro
and
Noel
Olbes
(Olbes),
as
follows:chanroblesvirtuallawlibrary
6. SPO1 Eduardo Balaoro essayed that at around 1:00
a.m. of September 9, 1992, Eduardo De Vera reported to
him at the Police Sub-Station 1 that he saw a man, who
was in squatting position, and a woman, who had blood
on the upper right breast of her clothes, lean[ing] against
the man and that after De Vera brought his tricycle
passenger home, he returned to the site but he could not
find the two anymore; upon receiving the report, he

(SPO1 Balaoro), together with SPO1 Sincua and De

Vera, proceeded to the diversion road, at the junction
going to the hospital and Pangpang, Sorsogon, Sorsogon
to investigate; they searched the place and went to the
hospital but found nothing; on their way back, at around
1:15 [a.m.] they saw Noel Olbes talking with Lt. Caguia
at Barangay Tugos; De Vera pointed to Olbes as the man
he saw with the woman at the crossing so they brought
him to Police Sub-Station 1 for investigation; Olbes told
them that he saw the woman lying on the side of the road
so he tried to lift her up but when he saw the tricycle (De
Vera's) he became afraid as he might be implicated in the
crime so he brought her to Hazelwood, which is five
meters away from the highway; at 2:25 a.m. the patrol
team found Leticia Aldemo, whom they found naked
from the waist down; at the garage of Hazelwood; they
found the long pants of the victim lying beside her and
noted that her panty was still on one of her knees; the
victim's body appeared to have been laid down; they did
not find any blood in the garage except where the
victim's body was found outside the garage, they saw the
other pair of shoes of a woman and thick bloodstains; he
(SPO1 Balaoro) brought Olbes to Balogo station and
entrusted him to their investigator.chanrobles|lawlibrary
7. Noel Olbes testified that he is a driver for the MCST
Sisters who are holding office at the Bishop's Compound
in Sorsogon, Sorsogon; that on September 8, 1997, he
went out with his friends Danny, Oca and Ely in
Almendras to drink a bottle of gin; at around 6:30 p.m.
he went to downtown Sorsogon and roamed around until
10:30 p.m.; then he went to Bahay Kainan and at about
11:00 or 11:30 p.m., he went to Pena Fast Food and took
a bottle of beer; upon the invitation of Lea, he went
inside Pena and drank another bottle of beer; he brought
Lea to her home at OLV, Pangpang, Sorsogon, Sorsogon;
from Lea's house, he walked and upon reaching the
junction of OLV, he saw a woman lying on her belly
naked from the waist down; the woman was just uttering
guttural sound; her jeans and panty were just lying beside
her; taking pity on the woman and since it was raining
that night, he carried the woman to a nearby shed in
order that she would not be run over by motor vehicles;
he also took the panty and the jeans to the shed; he
noticed that a tricycle stopped for a while and focused its
headlight on them and proceeded on its way; when he
laid down the woman in the shed, he noticed that she was
bleeding and he was stained with her blood; after seeing
the blood, he got scared and left; he walked towards the
69

Sorsogon town proper and after about forty-five minutes,

two policem[e]n apprehended him and brought him to
the police station for investigation; while being
investigated, he was not apprised of his constitutional
rights and made to sign the police blotter; he was
detained as he was a suspect for the injuries of the
victim; after 7 or 8 hours, he was released; and he
executed a Sworn Statement and affirmed its contents.
[27]
Dr. Antonio Dioneda, Jr.[28] and Dr. Wilhelmino Abrantes (Dr.
Abrantes) testified on the injuries suffered by Leticia, which eventually
caused her death:chanroblesvirtuallawlibrary
9. Dr. Antonio Dionedas testified that he encountered
on September 9, 1992 a patient by the name of Leticia
Aldemo, who was in comatose state; she sustained the
following injuries (1) severe cerebral contusion; (2) 2.5
cm punctured wound, occipital area (3) .5 cm punctured
wound, parietal left area[;] (4) multiple contusion
hematoma antero lateral aspect deltoid left area[;] (5)
contusion hematoma 3rd upper left arm; (6) contusion
hematoma left elbow[;] (7) abrasion left elbow[;] (8)
hematoma, 3rd left thigh[;] (9) abrasion right knee[;] (10)
multiple confluent abrasion right foot[;] (11) contusion
hematoma right hand[;] (12) abrasion right elbow[;] (13)
contusion hematoma right elbow[;] and (14) skullsegmented
fracture
parietal
bone
with
separation.chanrobles|lawlibrary
He explained that the punctured wound in the occipital
area (lower back of the skull) was caused by a pebble
which they recovered from said area; the punctured
wound on the parietal left area was caused by a sharp
object and may have been secondary to a fall on a rough
surface; the first three findings could also have been
caused by the punch made by the perpetrator; the fourth
finding could have been caused by a blunt instrument or
a punch or a strong grip; the fifth and the sixth findings
could have been caused also by some of the abovementioned means; the eighth finding could have been
caused by a fall or rubbing on a hard object; the ninth
finding could have been caused by a blunt instrument or
a fist blow while the tenth finding could have been
caused by a fall on a rough object and the knee rubbing
on a rough object; the eleventh finding could have been
due to a fall or by being dragged; the twelfth finding
could be caused by a blunt instrument or by a fall or by

fist blow and the thirteenth finding could also be caused

by a fall or fist blow.chanrobles|lawlibrary
He stated [that] the victim died despite the operation he
performed
on
her.chanrobles|lawlibrary
x

14. Dr. Wilhelmino Abrantes - He explained the different

kinds of injuries sustained by the victim. In addition, he
stated that since there were wounds sustained by the
victim in the dorsum part of the foot and sustained
injuries on both knees, upper portion of the back of the
hand, the victim could have been thrown off while
unconscious.[29]

The RTC's Ruling

On November 18, 1997, the RTC ruled in favor of the prosecution,

finding petitioner guilty beyond reasonable doubt based on
circumstantial evidence, not of the crime of Murder, but of Homicide.
The RTC ratiocinated that, in the absence of any direct evidence or
testimonies of eyewitnesses, treachery was not established, and that
evident premeditation and abuse of superior strength were not duly
proven. Thus, the RTC disposed of the case in this
wise:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the Court finds the
accused Benjamin Jesalva alias Ben Sabaw guilty
beyond reasonable doubt of the crime of Homicide
penalized under Art. 249 of the Revised Penal Code and
considering that there was no aggravating nor mitigating
circumstances attendant thereto and taking into
consideration the Indeterminate Sentence Law, the court
hereby sentences the accused to suffer the indeterminate
penalty of eight (8) years and one (1) day of prision
mayor as minimum to twelve (12) years and one (1) day
of reclusion temporal as maximum and to pay death
indemnity of the sum of P50,000.00 to the legal heirs of
the victim, plus P42,755.45 for compensatory damages
plus P50,000.00 by way of moral damages and
P10,000.00 as attorney's fees (People v. Aguiluz, March
11,
1992).chanrobles|lawlibrary
SO ORDERED.[30]

Aggrieved, petitioner appealed to the CA.[31]

The CA's Ruling
On October 17, 2008, the CA pertinently held, among others, that
petitioner could not point to Olbes as the culprit because, when Eduardo
de Vera saw the former holding on to Leticia in a squatting position,
Olbes was in the act of lifting her in order to bring her to the nearby
shed. The CA opined that, if any misdeed or omission could be attributed
to Olbes, it was his failure to bring Leticia to a nearby hospital, because
his fear of being implicated in the crime clouded his better judgment.
Thus:chanroblesvirtuallawlibrary
All told, We find that the prosecution's evidence suffice
to sustain the accused-appellant's conviction for
homicide.chanrobles|lawlibrary
As to the award of attorney's fees, We find the award of
P10,000.00 by the trial court meritorious, the records
reveal that services of private prosecutor was
engaged.chanrobles|lawlibrary
Under Article 249 of the Revised Penal Code, homicide
is punishable by reclusion temporal. With the attendant
mitigating circumstance of voluntary surrender of
accused-appellant, the penalty reclusion temporal is
imposed in its minimum period. Accordingly, accusedappellant Benjamin J. Jesalva should suffer the
indeterminate penalty of TWELVE (12) YEARS and
ONE (1) DAY of reclusion temporal as maximum and
SIX (6) YEARS and ONE (1) DAY of prision mayor as
minimum.chanrobles|lawlibrary
WHEREFORE, premises considered, the Decision of the
Regional Trial Court of Sorsogon, Sorsogon, Branch 52
dated November 18, 1997 in Criminal Case No. 3243
is AFFIRMED with MODIFICATION as
to
the
penalty.chanrobles|lawlibrary
Accused-appellant Benjamin J. Jesalva is sentenced to
serve the indeterminate penalty of SIX (6) YEARS and
ONE (1) DAY of prision mayor, as minimum, to
TWELVE (12) YEARS and ONE (1) DAY of reclusion
temporal, as
maximum.chanrobles|lawlibrary
SO ORDERED.[32]
Undaunted, petitioner filed a Motion for Reconsideration,[33] which the
70

CA, however, denied in its Resolution[34] dated April 7, 2009 for lack of
merit.chanrobles|lawlibrary
Hence,
this
Petition
based
grounds:chanroblesvirtuallawlibrary

on

the

following

A) THE COURT OF APPEALS AND RTC DECISIONS

CONVICTING PETITIONER OF THE CRIME OF
HOMICIDE
BASED
ON
PURELY
CIRCUMSTANTIAL EVIDENCE WERE BOTH NOT
IN
ACCORD
WITH
ESTABLISHED
JURISPRUDENCE REQUIRING THAT SUCH BE
ACTED WITH CAUTION AND THAT ALL THE
ESSENTIAL FACTS MUST BE CONSISTENT WITH
THE
HYPOTHESIS
OF
GUILT;
AND
B) THE COURT OF APPEALS, AS WELL AS THE
TRIAL COURT, SERIOUSLY ERRED IN RULING
THAT STATEMENTS MADE BY PETITIONER IN
THE POLICE STATION WERE ADMISSIBLE AS HE
WAS
THEN
NOT
UNDER
CUSTODIAL
INVESTIGATION DESPITE SUFFICIENT EVIDENCE
ON RECORD THAT HE WOULD HAVE BEEN
DETAINED BY THE POLICE HAD HIS FISCALCOMPANION NOT [TAKEN] HIM UNDER HIS
CUSTODY.[35]
Petitioner argues that no evidence was ever introduced as to how, when,
and where Leticia sustained her injuries. No witness ever testified as to
who was responsible for her injuries. He refutes the prosecution's
contention that, even if he took the 6 th Street, the same could still lead to
the 7th Street, where Leticia's house is located. Petitioner stresses that
Olbes should have been considered as a suspect in this case, considering
that he was the last person seen with Leticia when she was still alive. He
avers that the statements he made at the police station are not admissible
in evidence, considering that he was, technically, under custodial
investigation, and that there was no waiver of his right to remain silent.
[36] Moreover, petitioner alleges that the fatal injuries sustained by
Leticia, per the testimony of Dr. Abrantes, are consistent with a fall,
thereby suggesting petitioner's innocence. Petitioner claims that the
evidence shows that there was more blood in Hazelwood than in the
place where Olbes spotted Leticia, thereby suggesting that something
worse than her jumping out of the vehicle might have happened.[37]
On the other hand, respondent People of the Philippines, through the
OSG, argues that only questions of law may be entertained by this Court,
and that we accord great respect to factual findings of the trial court
especially when affirmed by the CA. The OSG insists that the CA,

affirming the RTC's ruling, did not err in convicting petitioner on the
basis of circumstantial evidence, because the particular circumstances
enumerated by both the RTC and the CA satisfactorily meet the
requirements of the rules and of jurisprudence for conviction. Moreover,
the OSG claims that the statements made by petitioner before SPO4
Desder, in the presence of Fiscal Jayona, were voluntarily given and
were not elicited on custodial investigation. Lastly, the OSG counters
that petitioner was not deprived of his rights since he was never held for
questioning by any police officer upon arriving at the police station and,
besides, he was accompanied by his first cousin, Fiscal Jayona.[38]
Our Ruling
The

Petition

is

bereft

of

merit.chanrobles|lawlibrary

Custodial investigation refers to "any questioning initiated by law

enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." This
presupposes that he is suspected of having committed a crime and that
the investigator is trying to elicit information or a confession from him.
[39] 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
aimed upon a particular suspect who has been taken into custody and to
whom the police would then direct interrogatory questions which tend to
elicit incriminating statements.[40] The assailed statements herein were
spontaneously made by petitioner and were not at all elicited through
questioning. It was established that petitioner, together with his cousin
Fiscal Jayona, personally went to the police station and voluntarily made
the statement that Leticia jumped out of his vehicle at around 12:30 a.m.
of September 9, 1992.[41] The RTC and the CA did not, therefore, err in
holding that the constitutional procedure for custodial investigation is
not
applicable
in
the
instant
case.chanrobles|lawlibrary
Be that as it may, even without these statements, petitioner could still be
convicted of the crime of Homicide. The prosecution established his
complicity in the crime through circumstantial evidence, which were
credible and sufficient, and which led to the inescapable conclusion that
petitioner committed the said crime. Indeed, when considered in their
totality, the circumstances point to petitioner as the culprit.chanrobles|
lawlibrary
Direct evidence of the commission of the crime charged is not the only
matrix wherefrom a court may draw its conclusions and findings of guilt.
There are instances when, although a witness may not have actually
witnessed the commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person last seen with the victim immediately
before and right after the commission of the crime. This is the type of
positive identification, which forms part of circumstantial evidence. In

the absence of direct evidence, the prosecution may resort to adducing

circumstantial evidence to discharge its burden. Crimes are usually
committed in secret and under condition where concealment is highly
probable. If direct evidence is insisted upon under all circumstances, the
guilt of vicious felons who committed heinous crimes in secret or in
secluded places will be hard, if not well-nigh impossible, to prove.[42]
Thus, there can be a verdict of conviction based on circumstantial
evidence when the circumstances proved form an unbroken chain which
leads to a fair and reasonable conclusion pinpointing the accused, to the
exclusion of all the others, as the perpetrator of the crime. However, in
order that circumstantial evidence may be sufficient to convict, the same
must comply with these essential requisites, viz.: (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.[43]
We accord respect to the following findings of the CA, affirming those
of the RTC:chanroblesvirtuallawlibrary
After a thorough review of the records of the case, We
find that the circumstantial evidence proved by the
prosecution, when viewed in its entirety, points
unerringly to [petitioner] Benjamin Jesalva as the person
responsible for the death of the victim Leticia Aldemo.
Truly, the following combination of the circumstances
which comprised such evidence forms an unbroken chain
that points to [petitioner] and no other, as the perpetrator
of the crime, to wit:chanroblesvirtuallawlibrary

1.

[Petitioner] Benjamin Jesalva (who was previously courting

the victim Leticia Aldemo, and whom the latter advised to stop
as she was already married)together with Gloria Haboc, and
six other individuals left Nena Ables' house at 10 p.m. of
September 8, 1992 after playing mahjong thereat. They rode
in [petitioner's] red panel.chanrobles|lawlibrary

2. Benjamin Jesalva, Leticia Aldemo, Gloria Haboc and two

others proceeded to Bistro Christina. [Petitioner], together with
other two male companions, consumed one bottle of Fundador,
in addition to the three bottles of beer. At 11:30 p.m., the group
left the place.chanrobles|lawlibrary
3. After dropping one male companion at his house, Benjamin
Jesalva, together with Leticia Aldemo, proceeded to bring
Gloria Haboc to her home, which was only twenty meters
away from Leticia's residence.chanrobles|lawlibrary

4.

After staying at Gloria Haboc's house for five minutes, and

denied another drink, Benjamin Jesalva immediately
71

accelerated his vehicle en route to 6 th Street instead of the

shorter and direct route, the 7th street, where Leticia Aldemo's

Ra[f]ael Subdivision to conduct an ocular inspection.

[Petitioner] pointed to the police the place where he and the
victim spent their time. The police photographed what
appear[ed] to be bloodstains just two meters away from the
place pointed by [petitioner].chanrobles|lawlibrary

house is located;
5. Leticia Aldemo never reached home as testified by her husband
Efren Aldemo;

6.

13.

Dr. Antonio Dioneda testified that the punctured

wound in the occipital area was caused by a pebble which he
recovered from said area; the punctured wound in the parietal
left area was caused by a sharp object and may have been
secondary to a fall on a rough surface, the cerebral contusion,
the punctured wound in the occipital and in the parietal area
could also be caused by a punch by the perpetrator. As to the
multiple contusion hematoma anterior lateral aspect of the
deltoid left area was caused by a blunt instrument or a punch or
a strong grip; the contusion hematoma on the upper left arm
and left elbow could as well be similarly caused by a blunt
instrument or a punch or a strong grip. As to the abrasion on
the right knee, the same could have been caused by a blunt
instrument or a fist blow. The multiple confluent abrasion[s]
on the right foot could have been caused by a fall on a rough
object. The abrasions on the right elbow could have been
caused by a blunt instrument or by a fall or by a fist blow. The
same is true with the contusion hematoma found on the
victim's right elbow.[44]

At around 12:20 a.m. of September 9, 1992, the police

patrolling the St. Ra[f]ael Subdivision saw the red panel
thereat and when they approached and beamed a flashlight,
they saw Benjamin Jesalva behind the wheel, who suddenly
drove away in the direction of Sorsogon town proper, opposite
to where he lives. SPO1 Eduardo Mendoza told Benjamin
Jesalva (whom he had known since his teen-age years) to stop
but the latter did not respond or heed his call;

7. At 12:30 o'clock (sic) of even date, Noel Olbes saw the body
of Leticia Aldemo sprawled on her belly at the
crossing/junction of OLV, Pangpang Sorsogon, Sorsogon,
naked from the waist down. He lifted her up and brought the
body at Hazelwood, which is about 10 meters away from the
highway.chanrobles|lawlibrary
8. The police found the body of the victim at Hazelwood at
around 2:15 a.m. of the same day, and brought her to the
Sorsogon
Provincial
Hospital
in
comatose
condition.chanrobles|lawlibrary
9. The police proceeded to inform the victim's sister, who in turn
informed the victim's husband of the incident.chanrobles|
lawlibrary
10. In the morning of September 9, 1992, the police looked for
Benjamin Jesalva to invite him at the police station but was not
able to find him.chanrobles|lawlibrary
11. At around 1:00 o'clock p.m. of September 9, 1992, Benjamin
Jesalva, together with his first cousin, Asst. Prosecutor Jose
Jayona, presented himself at the PNP Sorsogon, Sorsogon
headquarters, where he voluntarily stated that the victim
Leticia Aldemo was his passenger in his vehicle at about 12:30
in the early morning of September 9, 1992 at St. Rafael
Subdivision but upon reaching the crossing of OLV, Pangpang,
Sorsogon, Sorsogon near the Provincial Hospital, she jumped
out of his vehicle. These declarations were recorded in the
police blotter by PO1 Enrique [Renoria] upon the instruction
of SPO4 William Desder, the PNP Sorsogon Chief
Investigator.chanrobles|lawlibrary
12. At about 1:30 p.m. of the same day, a police team, together
with [petitioner] and Asst. Prosecutor Jayona, went to St.

Carpio, (Chairperson), Peralta, Abad, and Mendoza, JJ., concur.

Petitioner's mere denial cannot outweigh the circumstantial evidence

clearly establishing his culpability in the crime charged. It is well-settled
that the positive declarations of a prosecution witness prevail over the
bare denials of an accused. The evidence for the prosecution was found
by both the RTC and the CA to be sufficient and credible, while
petitioner's defense of denial was weak, self-serving, speculative, and
uncorroborated. Petitioner's silence as to the matters that occurred during
the time he was alone with Leticia is deafening. An accused can only be
exonerated if the prosecution fails to meet the quantum of proof required
to overcome the constitutional presumption of innocence. We find that
the prosecution has met this quantum of proof in this case.[45]
All told, we find no reversible error in the assailed CA decision which
would warrant the modification much less the reversal
thereof.chanrobles|lawlibrary
WHEREFORE, the petition is DENIED, and the Court of Appeals
Decision dated October 17, 2008 in CA-G.R. CR No. 22126, affirming
with modification the decision of the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon, in Criminal Case No. 3243, is hereby AFFIRMED.
Costs
against
petitioner.chanrobles|lawlibrary
SO

ORDERED.
72

Mapp v. Ohio, 367 U.S. 643 (1961)

officers recovered the piece of paper and as a result of which they

handcuffed appellant because she had been "belligerent"
[645]

Mapp v. Ohio
No. 236
Argued March 29, 1961
Decided June 19, 1961
367 U.S. 643
APPEAL FROM THE SUPREME COURT OF OHIO
MR. JUSTICE CLARK delivered the opinion of the Court.
Appellant stands convicted of knowingly having had in her possession
and under her control certain lewd and lascivious books, pictures, and
photographs in violation of 2905.34 of Ohio's Revised Code. [Footnote
1] As officially stated in the syllabus to its opinion, the Supreme Court of
Ohio found that her conviction was valid though "based primarily upon
the introduction in evidence of lewd and lascivious books and pictures
unlawfully seized during an unlawful search of defendant's home . . . ."
170 Ohio St. 427-428, 166 N.E.2d 387, 388.
[644]
On May 23, 1957, three Cleveland police officers arrived at appellant's
residence in that city pursuant to information that "a person [was] hiding
out in the home, who was wanted for questioning in connection with a
recent bombing, and that there was a large amount of policy
paraphernalia being hidden in the home." Miss Mapp and her daughter
by a former marriage lived on the top floor of the two-family dwelling.
Upon their arrival at that house, the officers knocked on the door and
demanded entrance, but appellant, after telephoning her attorney, refused
to admit them without a search warrant. They advised their headquarters
of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or
more additional officers arrived on the scene. When Miss Mapp did not
come to the door immediately, at least one of the several doors to the
house was forcibly opened [Footnote 2] and the policemen gained
admittance. Meanwhile Miss Mapp's attorney arrived, but the officers,
having secured their own entry, and continuing in their defiance of the
law, would permit him neither to see Miss Mapp nor to enter the house.
It appears that Miss Mapp was halfway down the stairs from the upper
floor to the front door when the officers, in this highhanded manner,
broke into the hall. She demanded to see the search warrant. A paper,
claimed to be a warrant, was held up by one of the officers. She grabbed
the "warrant" and placed it in her bosom. A struggle ensued in which the

in resisting their official rescue of the "warrant" from her person.

Running roughshod over appellant, a policeman "grabbed" her, "twisted
[her] hand," and she "yelled [and] pleaded with him" because "it was
hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her
bedroom where the officers searched a dresser, a chest of drawers, a
closet and some suitcases. They also looked into a photo album and
through personal papers belonging to the appellant. The search spread to
the rest of the second floor including the child's bedroom, the living
room, the kitchen and a dinette. The basement of the building and a trunk
found therein were also searched. The obscene materials for possession
of which she was ultimately convicted were discovered in the course of
that widespread search.
At the trial, no search warrant was produced by the prosecution, nor was
the failure to produce one explained or accounted for. At best, "There is,
in the record, considerable doubt as to whether there ever was any
warrant for the search of defendant's home." 170 Ohio St. at 430, 166
N.E.2d at 389. The Ohio Supreme Court believed a "reasonable
argument" could be made that the conviction should be reversed
"because the methods' employed to obtain the [evidence] . . . were such
as to 'offend "a sense of justice,"'" but the court found determinative the
fact that the evidence had not been taken "from defendant's person by the
use of brutal or offensive physical force against defendant." 170 Ohio St.
at 431, 166 N.E.2d at 389-390.
The State says that, even if the search were made without authority, or
otherwise unreasonably, it is not prevented from using the
unconstitutionally seized evidence at trial, citing Wolf v. Colorado, 338
U. S. 25 (1949), in which this Court did indeed hold "that, in a
prosecution in a State court for a State crime, the Fourteenth Amend[646]
ment does not forbid the admission of evidence obtained by an
unreasonable search and seizure." At p. 33. On this appeal, of which we
have noted probable jurisdiction, 364 U.S. 868, it is urged once again
that we review that holding. [Footnote 3]

[647]
that constitutes the essence of the offence; but it is the invasion of his
indefeasible right of personal security, personal liberty and private
property. . . . Breaking into a house and opening boxes and drawers are
circumstances of aggravation; but any forcible and compulsory extortion
of a man's own testimony or of his private papers to be used as evidence
to convict him of crime or to forfeit his goods, is within the
condemnation . . . [of those Amendments]."
The Court noted that
"constitutional provisions for the security of person and property should
be liberally construed. . . . It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments thereon." At p. 635.
In this jealous regard for maintaining the integrity of individual rights,
the Court gave life to Madison's prediction that "independent tribunals of
justice . . . will be naturally led to resist every encroachment upon rights
expressly stipulated for in the Constitution by the declaration of rights." I
Annals of Cong. 439 (1789). Concluding, the Court specifically referred
to the use of the evidence there seized as "unconstitutional." At p. 638.
Less than 30 years after Boyd, this Court, in Weeks v. United States, 232
U. S. 383 (1914), stated that
"the Fourth Amendment . . . put the courts of the United States and
Federal officials, in the exercise of their power and authority, under
limitations and restraints [and] . . . forever secure[d] the people, their
persons, houses, papers and effects against all unreasonable searches and
seizures under the guise of law . . . , and the duty of giving to it force and
effect is obligatory upon all entrusted under our Federal system with the
enforcement of the laws." At pp. 391-392.
[648]
Specifically dealing with the use of the evidence unconstitutionally
seized, the Court concluded

Seventy-five years ago, in Boyd v. United States, 116 U. S. 616, 630

(1886), considering the Fourth [Footnote 4] and Fifth Amendments as
running "almost into each other" [Footnote 5] on the facts before it, this
Court held that the doctrines of those Amendments

"If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the
Fourth Amendment declaring his right to be secure against such searches
and seizures is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts
of the courts and their officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which
have resulted in their embodiment in the fundamental law of the land."
At p. 393.

"apply to all invasions on the part of the government and its employes of
the sanctity of a man's home and the privacies of life. It is not the
breaking of his doors, and the rummaging of his drawers,

Finally, the Court in that case clearly stated that use of the seized
evidence involved "a denial of the constitutional rights of the accused."
At pp. 398. Thus, in the year 1914, in the Weeks case, this Court "for the

73

first time" held that, "in a federal prosecution, the Fourth Amendment
barred the use of evidence secured through an illegal search and
seizure." Wolf v. Colorado, supra, at 28. This Court has ever since
required of federal law officers a strict adherence to that command which
this Court has held to be a clear, specific, and constitutionally required-even if judicially implied--deterrent safeguard without insistence upon
which the Fourth Amendment would have been reduced to "a form of
words." Holmes, J., Silverthorne Lumber Co. v. United States, 251 U. S.
385, 392 (1920). It meant, quite simply, that "conviction by means of
unlawful seizures and enforced confessions . . . should find no sanction
in the judgments of the courts . . . ," Weeks v. United States, supra, at
392, and that such evidence "shall not be used at all." Silverthorne
Lumber Co. v. United States, supra, at 392.
[649]
There are in the cases of this Court some passing references to
the Weeks rule as being one of evidence. But the plain and unequivocal
language of Weeks--and its later paraphrase in Wolf--to the effect that
the Weeks rule is of constitutional origin, remains entirely undisturbed.
In Byars v. United States, 273 U. S. 28 (1927), a unanimous Court
declared that "the doctrine [cannot] . . . be tolerated under our
constitutional system, that evidences of crime discovered by a federal
officer in making a search without lawful warrant may be used against
the victim of the unlawful search where a timely challenge has been
interposed." At pp. 29-30 (emphasis added). The Court, in Olmstead v.
United States, 277 U. S. 438 (1928), in unmistakable language restated
the Weeks rule:
"The striking outcome of the Weeks case and those which followed it
was the sweeping declaration that the Fourth Amendment, although not
referring to or limiting the use of evidence in courts, really forbade its
introduction if obtained by government officers through a violation of
the Amendment." At p. 462.
In McNabb v. United States, 318 U. S. 332 (1943), we note this
statement:
"[A] conviction in the federal courts, the foundation of which is evidence
obtained in disregard of liberties deemed fundamental by the
Constitution, cannot stand. Boyd v. United States . . . Weeks v. United
States. . . . And this Court has, on Constitutional grounds, set aside
convictions, both in the federal and state courts, which were based upon
confessions 'secured by protracted and repeated questioning of ignorant
and untutored persons, in whose minds the power of officers was greatly
mag[650]
nified' . . . or 'who have been unlawfully held incommunicado without
advice of friends or counsel.' . . ." At pp. 339-340.

Significantly, in McNabb, the Court did then pass on to formulate a rule

of evidence, saying, "[i]n the view we take of the case, however, it
becomes unnecessary to reach the Constitutional issue, [for] . . . [t]he
principles governing the admissibility of evidence in federal criminal
trials have not been restricted . . . to those derived solely from the
Constitution." At pp. 340-341.
II
In 1949, 35 years after Weeks was announced, this Court, in Wolf v.
Colorado, supra, again for the first time, [Footnote 6] discussed the
effect of the Fourth Amendment upon the States through the operation of
the Due Process Clause of the Fourteenth Amendment. It said:
"[W]e have no hesitation in saying that, were a State affirmatively to
sanction such police incursion into privacy, it would run counter to the
guaranty of the Fourteenth Amendment." At pp. 28.
Nevertheless, after declaring that the "security of one's privacy against
arbitrary intrusion by the police" is "implicit in the concept of ordered
liberty' and, as such, enforceable against the States through the Due
Process Clause," cf. Palko v. Connecticut, 302 U. S. 319 (1937), and
announcing that it "stoutly adhere[d]" to the Weeks decision, the Court
decided that the Weeks exclusionary rule would not then be imposed
upon the States as "an essential ingredient of the right." 338 U.S. at 2729. The Court's reasons for not considering essential to the
[651]
right to privacy, as a curb imposed upon the States by the Due Process
Clause, that which decades before had been posited as part and parcel of
the Fourth Amendment's limitation upon federal encroachment of
individual privacy, were bottomed on factual considerations.
While they are not basically relevant to a decision that the exclusionary
rule is an essential ingredient of the Fourth Amendment as the right it
embodies is vouchsafed against the States by the Due Process Clause, we
will consider the current validity of the factual grounds upon
which Wolf was based.
The Court in Wolf first stated that "[t]he contrariety of views of the
States" on the adoption of the exclusionary rule of Weeks was
"particularly impressive" (At pp. 29); and, in this connection, that it
could not "brush aside the experience of States which deem the
incidence of such conduct by the police too slight to call for a deterrent
remedy . . . by overriding the [States'] relevant rules of evidence." At pp.
31-32. While, in 1949, prior to the Wolf case, almost two-thirds of the
States were opposed to the use of the exclusionary rule, now, despite
the Wolf case, more than half of those since passing upon it, by their
own legislative or judicial decision, have wholly or partly adopted or
adhered to the Weeks rule. See Elkins v. United States, 364 U. S. 206,
Appendix, pp. 224-232 (1960). Significantly, among those now

following the rule is California, which, according to its highest court,

was "compelled to reach that conclusion because other remedies have
completely failed to secure compliance with the constitutional
provisions. . . ." People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 911
(1955). In connection with this California case, we note that the second
basis elaborated in Wolf in support of its failure to enforce the
exclusionary doctrine against the States was that "other means of
protection" have been afforded "the
[652]
right to privacy." [Footnote 7] 338 U.S. at 30. The experience of
California that such other remedies have been worthless and futile is
buttressed by the experience of other States. The obvious futility of
relegating the Fourth Amendment to the protection of other remedies
has, moreover, been
[653]
recognized by this Court since Wolf. See Irvine v. California, 347 U. S.
128, 137 (1954).
Likewise, time has set its face against what Wolf called the "weighty
testimony" of People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926).
There, Justice (then Judge) Cardozo, rejecting adoption of
the Weeks exclusionary rule in New York, had said that "[t]he Federal
rule as it stands is either too strict or too lax." 242 N.Y. at 22, 150 N.E. at
588. However, the force of that reasoning has been largely vitiated by
later decisions of this Court. These include the recent discarding of the
"silver platter" doctrine which allowed federal judicial use of evidence
seized in violation of the Constitution by state agents, Elkins v. United
States, supra; the relaxation of the formerly strict requirements as to
standing to challenge the use of evidence thus seized, so that now the
procedure of exclusion, "ultimately referable to constitutional
safeguards," is available to anyone even "legitimately on [the] premises"
unlawfully searched, Jones v. United States, 362 U. S. 257, 266-267
(1960); and, finally, the formulation of a method to prevent state use of
evidence unconstitutionally seized by federal agents, Rea v. United
States, 350 U. S. 214 (1956). Because there can be no fixed formula, we
are admittedly met with "recurring questions of the reasonableness of
searches," but less is not to be expected when dealing with a
Constitution, and, at any rate, "[r]easonableness is in the first instance
for the [trial court] . . . to determine." United States v. Rabinowitz, 339
U. S. 56, 63 (1950).
It therefore plainly appears that the factual considerations supporting the
failure of the Wolf Court to include the Weeksexclusionary rule when it
recognized the enforceability of the right to privacy against the States in
1949, while not basically relevant to the constitutional consideration,
could not, in any analysis, now be deemed controlling.
[654]
74

III
Some five years after Wolf, in answer to a plea made here Term after
Term that we overturn its doctrine on applicability of
the Weeks exclusionary rule, this Court indicated that such should not be
done until the States had "adequate opportunity to adopt or reject the
[Weeks] rule." Irvine v. California, supra, at 134. There again, it was
said:
"Never until June of 1949 did this Court hold the basic search and
seizure prohibition in any way applicable to the states under the
Fourteenth Amendment." Ibid.
And only last Term, after again carefully reexamining the Wolf doctrine
in Elkins v. United States, supra, the Court pointed out that "the
controlling principles" as to search and seizure and the problem of
admissibility "seemed clear" (At pp. 212) until the announcement
in Wolf "that the Due Process Clause of the Fourteenth Amendment does
not itself require state courts to adopt the exclusionary rule" of
the Weeks case. At pp. 213. At the same time, the Court pointed out, "the
underlying constitutional doctrine which Wolf established . . . that the
Federal Constitution . . . prohibits unreasonable searches and seizures by
state officers" had undermined the "foundation upon which the
admissibility of state-seized evidence in a federal trial originally
rested. . . ." Ibid. The Court concluded that it was therefore obliged to
hold, although it chose the narrower ground on which to do so, that all
evidence obtained by an unconstitutional search and seizure was
inadmissible in a federal court regardless of its source. Today we once
again examine Wolf's constitutional documentation of the right to
privacy free from unreasonable state intrusion, and, after its dozen years
on our books, are led by it to close the only
[655]
courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons
as a specific guarantee against that very same unlawful conduct. We hold
that all evidence obtained by searches and seizures in violation of the
Constitution is, by that same authority, inadmissible in a state court.
IV
Since the Fourth Amendment's right of privacy has been declared
enforceable against the States through the Due Process Clause of the
Fourteenth, it is enforceable against them by the same sanction of
exclusion as is used against the Federal Government. Were it otherwise,
then, just as without the Weeks rule the assurance against unreasonable
federal searches and seizures would be "a form of words," valueless and
undeserving of mention in a perpetual charter of inestimable human
liberties, so too, without that rule, the freedom from state invasions of
privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as

not to merit this Court's high regard as a freedom "implicit in the concept
of ordered liberty." At the time that the Court held in Wolfthat the
Amendment was applicable to the States through the Due Process
Clause, the cases of this Court, as we have seen, had steadfastly held that
as to federal officers the Fourth Amendment included the exclusion of
the evidence seized in violation of its provisions. Even Wolf "stoutly
adhered" to that proposition. The right to privacy, when conceded
operatively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its protection and
enjoyment had always been deemed dependent under the Boyd,
Weeks and Silverthorne cases. Therefore, in extending the substantive
protections of due process to all constitutionally unreasonable searches-state or federal--it was
[656]
logically and constitutionally necessary that the exclusion doctrine--an
essential part of the right to privacy--be also insisted upon as an essential
ingredient of the right newly recognized by the Wolf case. In short, the
admission of the new constitutional right by Wolf could not consistently
tolerate denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by
reason of the unlawful seizure. To hold otherwise is to grant the right
but, in reality, to withhold its privilege and enjoyment. Only last year,
the Court itself recognized that the purpose of the exclusionary rule "is
to deter--to compel respect for the constitutional guaranty in the only
effectively available way--by removing the incentive to disregard
it." Elkins v. United States, supra, at 217.

the freedom from convictions based upon coerced confessions do enjoy

an "intimate relation" [Footnote 8] in their perpetuation of "principles of
humanity and civil liberty [secured] . . . only after years of
struggle," Bram v. United States, 168 U. S. 532, 543-544 (1897). They
express "supplementing phases of the same constitutional purpose to
maintain inviolate large areas of personal privacy." Feldman v. United
States, 322 U. S. 487, 489-490 (1944). The philosophy of each
Amendment and of each freedom is complementary to, although not
dependent upon, that of the other in its sphere of influence--the very
least that together they assure in either sphere is that no man is to be
convicted on unconstitutional evidence. Cf. Rochin v. California, 342 U.
S. 165, 173 (1952).
V
Moreover, our holding that the exclusionary rule is an essential part of
both the Fourth and Fourteenth Amendments is not only the logical
dictate of prior cases, but it also makes very good sense. There is no war
between the Constitution and common sense. Presently, a federal
prosecutor may make no use of evidence illegally seized, but a State's
attorney across the street may, although he supposedly is operating under
the enforceable prohibitions of the same Amendment. Thus, the State, by
admitting evidence unlawfully seized, serves to encourage disobedience
to the Federal Constitution which it is bound to uphold. Moreover, as
was said in Elkins, "[t]he very essence of a healthy federalism depends
upon the avoidance of needless conflict between
[658]

Indeed, we are aware of no restraint, similar to that rejected today,

conditioning the enforcement of any other basic constitutional right. The
right to privacy, no less important than any other right carefully and
particularly reserved to the people, would stand in marked contrast to all
other rights declared as "basic to a free society." Wolf v. Colorado, supra,
at 27. This Court has not hesitated to enforce as strictly against the States
as it does against the Federal Government the rights of free speech and
of a free press, the rights to notice and to a fair, public trial, including, as
it does, the right not to be convicted by use of a coerced confession,
however logically relevant it be, and without regard to its
reliability. Rogers v. Richmond, 365 U. S. 534 (1961). And nothing
could be more certain than that, when a coerced confession is involved,
"the relevant rules of evidence" are overridden without regard to "the
incidence of such conduct by the police," slight or frequent. Why should
not the same rule apply to what is tantamount to coerced testimony by
way of unconstitutional seizure of goods, papers, effects, documents,
etc.? We find that,

state and federal courts." 364 U.S. at 221. Such a conflict, hereafter
needless, arose this very Term in Wilson v. Schnettler, 365 U. S.
381 (1961), in which, and in spite of the promise made by Rea, we gave
full recognition to our practice in this regard by refusing to restrain a
federal officer from testifying in a state court as to evidence
unconstitutionally seized by him in the performance of his duties. Yet the
double standard recognized until today hardly put such a thesis into
practice. In nonexclusionary States, federal officers, being human, were
by it invited to, and did, as our cases indicate, step across the street to the
State's attorney with their unconstitutionally seized evidence.
Prosecution on the basis of that evidence was then had in a state court in
utter disregard of the enforceable Fourth Amendment. If the fruits of an
unconstitutional search had been inadmissible in both state and federal
courts, this inducement to evasion would have been sooner eliminated.
There would be no need to reconcile such cases as Rea and Schnettler,
each pointing up the hazardous uncertainties of our heretofore
ambivalent approach.

[657]

Federal-state cooperation in the solution of crime under constitutional

standards will be promoted, if only by recognition of their now mutual
obligation to respect the same fundamental criteria in their approaches.
"However much in a particular case insistence upon such rules may

as to the Federal Government, the Fourth and Fifth Amendments and, as

to the States, the freedom from unconscionable invasions of privacy and

75

appear as a technicality that inures to the benefit of a guilty person, the

history of the criminal law proves that tolerance of shortcut methods in
law enforcement impairs its enduring effectiveness." Miller v. United
States, 357 U. S. 301, 313 (1958). Denying shortcuts to only one of two
cooperating law enforcement agencies tends naturally to breed legitimate
suspicion of "working arrangements" whose results are equally
tainted. Byars v. United States, 273 U. S. 28 (1927); Lustig v. United
States, 338 U. S. 74 (1949).
[659]
There are those who say, as did Justice (then Judge) Cardozo, that, under
our constitutional exclusionary doctrine, "[t]he criminal is to go free
because the constable has blundered." People v. Defore, 242 N.Y. at 21,
150 N.E. at 587. In some cases, this will undoubtedly be the result.
[Footnote 9] But, as was said in Elkins, "there is another consideration-the imperative of judicial integrity." 364 U.S. at 222. The criminal goes
free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or
worse, its disregard of the charter of its own existence. As Mr. Justice
Brandeis, dissenting, said in Olmstead v. United States, 277 U. S. 438,
485 (1928): "Our Government is the potent, the omnipresent teacher. For
good or for ill, it teaches the whole people by its example. . . . If the
Government becomes a lawbreaker, it breeds contempt for law; it invites
every man to become a law unto himself; it invites anarchy." Nor can it
lightly be assumed that, as a practical matter, adoption of the
exclusionary rule fetters law enforcement. Only last year, this Court
expressly considered that contention and found that "pragmatic evidence
of a sort" to the contrary was not wanting. Elkins v. United States, supra,
at 218. The Court noted that
"The federal courts themselves have operated under the exclusionary
rule of Weeks for almost half a cen[660]
tury; yet it has not been suggested either that the Federal Bureau of
Investigation [Footnote 10] has thereby been rendered ineffective, or that
the administration of criminal justice in the federal courts has thereby
been disrupted. Moreover, the experience of the states is impressive. . . .
The movement towards the rule of exclusion has been halting, but
seemingly inexorable." Id. at 218-219.
The ignoble shortcut to conviction left open to the State tends to destroy
the entire system of constitutional restraints on which the liberties of the
people rest. [Footnote 11] Having once recognized that the right to
privacy embodied in the Fourth Amendment is enforceable against the
States, and that the right to be secure against rude invasions of privacy
by state officers is, therefore, constitutional in origin, we can no longer
permit that right to remain an empty promise. Because it is enforceable
in the same manner and to like effect as other basic rights secured by the
Due Process Clause, we can no longer permit it to be revocable at the

whim of any police officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision, founded on reason and
truth, gives to the individual no more than that which the Constitution
guarantees him, to the police officer no less than that to which honest
law enforcement is entitled, and, to the courts, that judicial integrity so
necessary in the true administration of justice.
The judgment of the Supreme Court of Ohio is reversed, and the cause
remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
[661]
MR. JUSTICE BLACK, concurring.
For nearly fifty years, since the decision of this Court in Weeks v. United
States, [Footnote 1] federal courts have refused to permit the
introduction into evidence against an accused of his papers and effects
obtained by "unreasonable searches and seizures" in violation of the
Fourth Amendment. In Wolf v. Colorado, decided in 1948, however, this
Court held that, "in a prosecution in a State court for a State crime, the
Fourteenth Amendment does not forbid the admission of evidence
obtained by an unreasonable search and seizure." [Footnote 2] I
concurred in that holding on these grounds:
"For reasons stated in my dissenting opinion in Adamson v.
California, 332 U. S. 46, 68, I agree with the conclusion of the Court that
the Fourth Amendment's prohibition of 'unreasonable searches and
seizures' is enforceable against the states. Consequently, I should be for
reversal of this case if I thought the Fourth Amendment not only
prohibited 'unreasonable searches and seizures,' but also, of itself, barred
the use of evidence so unlawfully obtained. But I agree with what
appears to be a plain implication of the Court's opinion that the federal
exclusionary rule is not a command of the Fourth Amendment, but is a
judicially created rule of evidence which Congress might negate."
[Footnote 3]
I am still not persuaded that the Fourth Amendment, standing alone,
would be enough to bar the introduction into evidence against an
accused of papers and effects seized from him in violation of its
commands. For the Fourth Amendment does not itself contain any
provision expressly precluding the use of such evidence, and I am
[662]
extremely doubtful that such a provision could properly be inferred from
nothing more than the basic command against unreasonable searches and
seizures. Reflection on the problem, however, in the light of cases
coming before the Court since Wolf, has led me to conclude that, when
the Fourth Amendment's ban against unreasonable searches and seizures
is considered together with the Fifth Amendment's ban against

compelled self-incrimination, a constitutional basis emerges which not

only justifies, but actually requires, the exclusionary rule.
The close interrelationship between the Fourth and Fifth Amendments,
as they apply to this problem, [Footnote 4] has long been recognized
and, indeed, was expressly made the ground for this Court's holding
in Boyd v. United States.[Footnote 5] There, the Court fully discussed
this relationship and declared itself "unable to perceive that the seizure
of a man's private books and papers to be used in evidence against him is
substantially different from compelling him to be a witness against
himself." [Footnote 6] It was upon this ground that Mr. Justice Rutledge
largely relied in his dissenting opinion in the Wolf case. [Footnote 7]
And, although I rejected the argument at that time, its force has, for me
at least, become compelling with the more thorough understanding of the
problem brought on by recent cases. In the final analysis, it seems to me
that the Boyd doctrine, though perhaps not required by the express
language of the Constitution, strictly construed, is amply justified from
an historical standpoint, soundly based in reason,
[663]
and entirely consistent with what I regard to be the proper approach to
interpretation of our Bill of Rights--an approach well set out by Mr.
Justice Bradley in the Boyd case:
"[C]onstitutional provisions for the security of person and property
should be liberally construed. A close and literal construction deprives
them of half their efficacy, and leads to gradual depreciation of the right,
as if it consisted more in sound than in substance. It is the duty of the
courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon." [Footnote 8]
The case of Rochin v. California, [Footnote 9] which we decided three
years after the Wolf case, authenticated, I think, the soundness of Mr.
Justice Bradley's and Mr. Justice Rutledge's reliance upon the
interrelationship between the Fourth and Fifth Amendments as requiring
the exclusion of unconstitutionally seized evidence. In the Rochin case,
three police officers, acting with neither a judicial warrant nor probable
cause, entered Rochin's home for the purpose of conducting a search,
and broke down the door to a bedroom occupied by Rochin and his wife.
Upon their entry into the room, the officers saw Rochin pick up and
swallow two small capsules. They immediately seized him and took him
in handcuffs to a hospital, where the capsules
[664]
were recovered by use of a stomach pump. Investigation showed that the
capsules contained morphine, and evidence of that fact was made the
basis of his conviction of a crime in a state court.
When the question of the validity of that conviction was brought here,
we were presented with an almost perfect example of the
76

interrelationship between the Fourth and Fifth Amendments. Indeed,

every member of this Court who participated in the decision of that case
recognized this interrelationship and relied on it, to some extent at least,
as justifying reversal of Rochin's conviction. The majority, though
careful not to mention the Fifth Amendment's provision that "[n]o person
. . . shall be compelled in any criminal case to be a witness against
himself," showed at least that it was not unaware that such a provision
exists, stating: "Coerced confessions offend the community's sense of
fair play and decency. . . . It would be a stultification of the responsibility
which the course of constitutional history has cast upon this Court to
hold that, in order to convict a man, the police cannot extract by force
what is in his mind, but can extract what is in his stomach." [Footnote
10] The methods used by the police thus were, according to the majority,
"too close to the rack and the screw to permit of constitutional
differentiation," [Footnote 11] and the case was reversed on the ground
that these methods had violated the Due Process Clause of the
Fourteenth Amendment in that the treatment accorded Rochin was of a
kind that "shocks the conscience," "offend[s] a sense of justice'" and fails
to "respect certain decencies of civilized conduct." [Footnote 12]
I concurred in the reversal of the Rochin case, but on the ground that the
Fourteenth Amendment made the Fifth Amendment's provision against
self-incrimination
[665]
applicable to the States and that, given a broad, rather than a narrow,
construction, that provision barred the introduction of this "capsule"
evidence just as much as it would have forbidden the use of words
Rochin might have been coerced to speak. [Footnote 13] In reaching this
conclusion, I cited and relied on the Boyd case, the constitutional
doctrine of which was, of course, necessary to my disposition of the
case. At that time, however, these views were very definitely in the
minority, for only MR. JUSTICE DOUGLAS and I rejected the flexible
and uncertain standards of the "shock the conscience test" used in the
majority opinion. [Footnote 14]
Two years after Rochin, in Irvine v. California, [Footnote 15] we were
again called upon to consider the validity of a conviction based on
evidence which had been obtained in a manner clearly unconstitutional
and arguably shocking to the conscience. The five opinions written by
this Court in that case demonstrate the utter confusion and uncertainty
that had been brought about by the Wolf and Rochin decisions. In
concurring, MR. JUSTICE CLARK emphasized the unsatisfactory
nature of the Court's "shock the conscience test," saying that this "test"
"makes for such uncertainty and unpredictability that it would be
impossible to foretell--other than by guesswork--just how brazen the
invasion of the intimate privacies of one's home must be in order to
shock itself into the protective arms of the Constitution. In truth, the
practical result of this ad hoc approach is simply that, when five Justices

are sufficiently revolted by local police action, a conviction is overturned

and a guilty man may go free. [Footnote 16] "
[666]
Only one thing emerged with complete clarity from the Irvine case--that
is that seven Justices rejected the "shock the conscience" constitutional
standard enunciated in the Wolf and Rochin cases. But even this did not
lessen the confusion in this area of the law, because the continued
existence of mutually inconsistent precedents, together with the Court's
inability to settle upon a majority opinion in the Irvine case, left the
situation at least as uncertain as it had been before. [Footnote 17] Finally,
today, we clear up that uncertainty. As I understand the Court's opinion
in this case, we again reject the confusing "shock the conscience"
standard of the Wolf and Rochin cases and, instead, set aside this state
conviction in reliance upon the precise, intelligible and more predictable
constitutional doctrine enunciated in the Boyd case. I fully agree with
Mr. Justice Bradley's opinion that the two Amendments upon which
the Boyd doctrine rests are of vital importance in our constitutional
scheme of liberty, and that both are entitled to a liberal, rather than a
niggardly, interpretation. The courts of the country are entitled to know
with as much certainty as possible what scope they cover. The Court's
opinion, in my judgment, dissipates the doubt and uncertainty in this
field of constitutional law, and I am persuaded, for this and other reasons
stated, to depart from my prior views, to accept the Boyd doctrine as
controlling in this state case, and to join the Court's judgment and
opinion, which are in accordance with that constitutional doctrine.
MR. JUSTICE DOUGLAS, concurring.
Though I have joined the opinion of the Court, I add a few words. This
criminal proceeding started with a lawless search and seizure. The police
entered a home
[667]
forcefully, and seized documents that were later used to convict the
occupant of a crime.
She lived alone with her fifteen-year-old daughter in the second-floor
flat of a duplex in Cleveland. At about 1:30 in the afternoon of May 23,
1957, three policemen arrived at this house. They rang the bell, and the
appellant, appearing at her window, asked them what they wanted.
According to their later testimony, the policemen had come to the house
on information from "a confidential source that there was a person
hiding out in the home who was wanted for questioning in connection
with a recent bombing." [Footnote 1] To the appellant's question,
however, they replied only that they wanted to question her, and would
not state the subject about which they wanted to talk.
The appellant, who had retained an attorney in connection with a
pending civil matter, told the police she would call him to ask if she

should let them in. On her attorney's advice, she told them she would let
them in only when they produced a valid search warrant. For the next
two and a half hours, the police laid siege to the house. At four o'clock,
their number was increased to at least seven. Appellant's lawyer
appeared on the scene, and one of the policemen told him that they now
had a search warrant, but the officer refused to show it. Instead, going to
the back door, the officer first tried to kick it in and, when that proved
unsuccessful, he broke the glass in the door and opened it from the
inside.
The appellant, who was on the steps going up to her flat, demanded to
see the search warrant, but the officer refused to let her see it, although
he waved a paper in front of her face. She grabbed it and thrust it down
the front of her dress. The policemen seized her, took the paper
[668]
from her, and had her handcuffed to another officer. She was taken
upstairs, thus bound, and into the larger of the two bedrooms in the
apartment; there she was forced to sit on the bed. Meanwhile, the
officers entered the house and made a complete search of the four rooms
of her flat and of the basement of the house.
The testimony concerning the search is largely nonconflicting. The
approach of the officers; their long wait outside the home, watching all
its doors; the arrival of reinforcements armed with a paper; [Footnote 2]
breaking into the house; putting their hands on appellant and handcuffing
her; numerous officers ransacking through every room and piece of
furniture while the appellant sat, a prisoner in her own bedroom. There is
direct conflict in the testimony, however, as to where the evidence which
is the basis of this case was found. To understand the meaning of that
conflict, one must understand that this case is based on the knowing
possession [Footnote 3] of four little pamphlets, a couple of photographs,
and a little pencil doodle--all of which are alleged to be pornographic.
According to the police officers who participated in the search, these
articles were found, some in appellant's
[669]
dressers and some in a suitcase found by her bed. According to appellant,
most of the articles were found in a cardboard box in the basement; one
in the suitcase beside her bed. All of this material, appellant--and a friend
of hers--said were odds and ends belonging to a recent boarder, a man
who had left suddenly for New York and had been detained there. As the
Supreme Court of Ohio read the statute under which appellant is
charged, she is guilty of the crime whichever story is true.
The Ohio Supreme Court sustained the conviction even though it was
based on the documents obtained in the lawless search. For, in Ohio,
evidence obtained by an unlawful search and seizure is admissible in a
criminal prosecution, at least where it was not taken from the
77

"defendant's person by the use of brutal or offensive force against

defendant." State v. Mapp, 170 Ohio St. 427, 166 N.E.2d at 388, syllabus
2; State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490. This evidence
would have been inadmissible in a federal prosecution. Weeks v. United
States, 232 U. S. 383; Elkins v. United States, 364 U. S. 206. For, as
stated in the former decision, "The effect of the Fourth Amendment is to
put the courts of the United States and Federal officials, in the exercise
of
their
power
and
authority,
under
limitations
and
restraints. . . ." Id. 391-392. It was therefore held that evidence obtained
(which in that case was documents and correspondence) from a home
without any warrant was not admissible in a federal prosecution.

Wolf v. Colorado, supra, was decided in 1949. The immediate result was
a storm of constitutional controversy which only today finds its end. I
believe that this is an appropriate case in which to put an end to the
asymmetry which Wolf imported into the law. See

We held in Wolf v. Colorado, 338 U. S. 25, that the Fourth Amendment

was applicable to the States by reason of the Due Process Clause of the
Fourteenth Amendment. But a majority held that the exclusionary rule of
the Weeks case was not required of the States, that they could apply such
sanctions as they chose. That position had the necessary votes to carry
the day. But, with all respect, it was not the voice of reason or principle.

It is also an appropriate case in the narrower and more technical sense.

The issues of the illegality of the search and the admissibility of the
evidence have been presented to the state court, and were duly raised
here in accordance with the applicable Rule of Practice. [Footnote 4] The
question was raised in the notice of appeal, the jurisdictional statement
and in appellant's brief on the merits. [Footnote 5] It is true that
argument was mostly directed to another issue in the case, but that is
often the fact. See Rogers v. Richmond, 365 U. S. 534, 535-540. Of
course, an earnest advocate of a position always believes that, had he
only an additional opportunity for argument, his side would win. But,
subject to the sound discretion of a court, all argument must at last come
to a halt. This is especially so as to an issue about which this Court said
last year that "The arguments of its antagonists and of its proponents
have been so many times marshalled as to require no lengthy elaboration
here." Elkins v. United States, supra, 216.

[670]
As stated in the Weeks case, if evidence seized in violation of the Fourth
Amendment can be used against an accused, "his right to be secure
against such searches and seizures is of no value, and . . . might as well
be stricken from the Constitution." 232 U.S. at 393.
When we allowed States to give constitutional sanction to the "shabby
business" of unlawful entry into a home (to use an expression of Mr.
Justice Murphy, Wolf v. Colorado, at 46), we did indeed rob the Fourth
Amendment of much meaningful force. There are, of course, other
theoretical remedies. One is disciplinary action within the hierarchy of
the police system, including prosecution of the police officer for a crime.
Yet, as Mr. Justice Murphy said in Wolf v. Colorado, at 42, "Selfscrutiny is a lofty ideal, but its exaltation reaches new heights if we
expect a District Attorney to prosecute himself or his associates for well
meaning violations of the search and seizure clause during a raid the
District Attorney or his associates have ordered."
The only remaining remedy, if exclusion of the evidence is not required,
is an action of trespass by the homeowner against the offending officer.
Mr. Justice Murphy showed how onerous and difficult it would be for
the citizen to maintain that action, and how meagre the relief even if the
citizen prevails. 338 U.S. 42-44. The truth is that trespass actions against
officers who make unlawful searches and seizures are mainly illusory
remedies.
Without judicial action making the exclusionary rule applicable to the
States, Wolf v. Colorado, in practical effect, reduced the guarantee
against unreasonable searches and seizures to "a dead letter," as Mr.
Justice Rutledge said in his dissent.See 338 U.S. at 47.

[671]
Stefanelli v. Minard, 342 U. S. 117; Rea v. United States, 350 U. S.
214; Elkins v. United States, supra; Monroe v. Pape, 365 U. S. 167. It is
an appropriate case because the facts it presents show--as would few
other cases--the casual arrogance of those who have the untrammelled
power to invade one's home and to seize one's person.

Moreover, continuance of Wolf v. Colorado in its full vigor breeds the

unseemly shopping around of the kind revealed in Wilson v.
Schnettler, 365 U. S. 381. Once evidence, inadmissible in a federal
court, is admissible in
[672]
a state court a "double standard" exists which, as the Court points out,
leads to "working arrangements" that, undercut federal policy and reduce
some aspects of law enforcement to shabby business. The rule that
supports that practice does not have the force of reason behind it.
Memorandum of MR. JUSTICE STEWART.
Agreeing fully with Part I of MR. JUSTICE HARLAN's dissenting
opinion, I express no view as to the merits of the constitutional issue
which the Court today decides. I would, however, reverse the judgment
in this case, because I am persuaded that the provision of 2905.34 of
the Ohio Revised Code, upon which the petitioner's conviction was
based, is, in the words of MR. JUSTICE HARLAN, not "consistent with
the rights of free thought and expression assured against state action by
the Fourteenth Amendment."

MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and

MR. JUSTICE WHITTAKER join, dissenting.
In overruling the Wolf case, the Court, in my opinion, has forgotten the
sense of judicial restraint which, with due regard for stare decisis, is one
element that should enter into deciding whether a past decision of this
Court should be overruled. Apart from that, I also believe that
the Wolf rule represents sounder Constitutional doctrine than the new
rule which now replaces it.
I
From the Court's statement of the case, one would gather that the central,
if not controlling, issue on this appeal is whether illegally state-seized
evidence is Constitutionally admissible in a state prosecution, an issue
which would, of course, face us with the need for
reexamining Wolf. However, such is not the situation. For, although that
question was indeed raised here and below among appellant's
subordinate points, the new and
[673]
pivotal issue brought to the Court by this appeal is whether 2905.34 of
the Ohio Revised Code, making criminal the mereknowing possession or
control of obscene material, [Footnote 1] and under which appellant has
been convicted, is consistent with the rights of free thought and
expression assured against state action by the Fourteenth Amendment.
[Footnote 2] That was the principal issue which was decided by the Ohio
Supreme Court, [Footnote 3] which was tendered by appellant's
Jurisdictional Statement, [Footnote 4] and which was briefed [Footnote
5] and argued [Footnote 6] in this Court.
[674]
In this posture of things, I think it fair to say that five members of this
Court have simply "reached out" to overrule Wolf.With all respect, for
the views of the majority, and recognizing that stare decisis carries dif[675]
ferent weight in Constitutional adjudication than it does in
nonconstitutional decision, I can perceive no justification for regarding
this case as an appropriate occasion for reexamining Wolf.
The action of the Court finds no support in the rule that decision of
Constitutional issues should be avoided wherever possible. For, in
overruling Wolf, the Court, instead of passing upon the validity of Ohio's
2905.34, has simply chosen between two Constitutional questions.
Moreover, I submit that it has chosen the more difficult and less
appropriate of the two questions. The Ohio statute which, as construed
by the State Supreme Court, punishes knowing possession or control of
obscene material, irrespective of the purposes of such possession or
control (with exceptions not here applicable) [Footnote 7] and
78

irrespective of whether the accused had any reasonable opportunity to rid

himself of the material after discovering that it was obscene, [Footnote
8] surely presents a Constitutional
[676]
question which is both simpler and less far-reaching than the question
which the Court decides today. It seems to me that justice might well
have been done in this case without overturning a decision on which the
administration of criminal law in many of the States has long justifiably
relied.
Since the demands of the case before us do not require us to reach the
question of the validity of Wolf, I think this case furnishes a singularly
inappropriate occasion for reconsideration of that decision, if
reconsideration is indeed warranted. Even the most cursory examination
will reveal that the doctrine of the Wolf case has been of continuing
importance in the administration of state criminal law. Indeed, certainly
as regards its "nonexclusionary" aspect, Wolf did no more than articulate
the then existing assumption among the States that the federal cases
enforcing the exclusionary rule "do not bind [the States], for they
construe provisions of the Federal Constitution, the Fourth and Fifth
Amendments, not applicable to the States." People v. Defore, 242 N.Y.
13, 20, 150 N.E. 585, 587. Though, of course, not reflecting the full
measure of this continuing reliance, I find that, during the last three
Terms, for instance, the issue of the inadmissibility of illegally stateobtained evidence appears on an average of about fifteen times per Term
just in the in forma pauperis cases summarily disposed of by us. This
would indicate both that the issue which is now being decided may well
have untoward practical ramifications respecting state cases long since
disposed of in reliance on Wolf, and that were we determined to
reexamine that doctrine, we would not lack future opportunity.
The occasion which the Court has taken here is in the context of a case
where the question was briefed not at all and argued only extremely
tangentially. The unwisdom of overruling Wolf without full-dress argu[677]
ment is aggravated by the circumstance that that decision is a
comparatively recent one (1949) to which three members of the present
majority have at one time or other expressly subscribed, one, to be sure,
with explicit misgivings. [Footnote 9] I would think that our obligation
to the States, on whom we impose this new rule, as well as the obligation
of orderly adherence to our own processes would demand that we seek
that aid which adequate briefing and argument lends to the determination
of an important issue. It certainly has never been a postulate of judicial
power that mere altered disposition, or subsequent membership on the
Court, is sufficient warrant for overturning a deliberately decided rule of
Constitutional law.

Thus, if the Court were bent on reconsidering Wolf, I think that there
would soon have presented itself an appropriate opportunity in which we
could have had the benefit of full briefing and argument. In any event, at
the very least, the present case should have been set down for
reargument, in view of the inadequate briefing and argument we have
received on the Wolf point. To all intents and purpose,s the Court's
present action amounts to a summary reversal of Wolf, without
argument.
I am bound to say that what has been done is not likely to promote
respect either for the Court's adjudicatory process or for the stability of
its decisions. Having been unable, however, to persuade any of the
majority to a different procedural course, I now turn to the merits of the
present decision.
[678]
II
Essential to the majority's argument against Wolf is the proposition that
the rule of Weeks v. United States, 232 U. S. 383, excluding in federal
criminal trials the use of evidence obtained in violation of the Fourth
Amendment, derives not from the "supervisory power" of this Court
over the federal judicial system, but from Constitutional requirement.
This is so because no one, I suppose, would suggest that this Court
possesses any general supervisory power over the state courts. Although
I entertain considerable doubt as to the soundness of this foundational
proposition of the majority, cf. Wolf v. Colorado, 338 U.S. at 39-40
(concurring opinion), I shall assume, for present purposes, that
the Weeks rule "is of constitutional origin."
At the heart of the majority's opinion in this case is the following
syllogism: (1) the rule excluding in federal criminal trials evidence
which is the product of an illegal search and seizure is "part and parcel"
of the Fourth Amendment; (2) Wolf held that the "privacy" assured
against federal action by the Fourth Amendment is also protected against
state action by the Fourteenth Amendment, and (3) it is therefore
"logically and constitutionally necessary" that the Weeks exclusionary
rule should also be enforced against the States. [Footnote 10]
This reasoning ultimately rests on the unsound premise that,
because Wolf carried into the States, as part of "the concept of ordered
liberty" embodied in the Fourteenth Amendment, the principle of
"privacy" underlying the Fourth Amendment (338 U.S. at 27), it must
follow that whatever configurations of the Fourth Amendment have been
developed in the particularizing federal precedents are likewise to be
deemed a part of "ordered liberty,"
[679]
and as such are enforceable against the States. For me, this does not
follow at all.

It cannot be too much emphasized that what was recognized in Wolf was
not that the Fourth Amendment, as such, is enforceable against the States
as a facet of due process, a view of the Fourteenth Amendment which,
as Wolf itself pointed out (338 U.S. at 26), has long since been
discredited, but the principle of privacy "which is at the core of the
Fourth Amendment." (Id. at 27.) It would not be proper to expect or
impose any precise equivalence, either as regards the scope of the right
or the means of its implementation, between the requirements of the
Fourth and Fourteenth Amendments. For the Fourth, unlike what was
said in Wolf of the Fourteenth, does not state a general principle only; it
is a particular command, having its setting in a preexisting legal context
on which both interpreting decisions and enabling statutes must at least
build.
Thus, even in a case which presented simply the question of whether a
particular search and seizure was constitutionally "unreasonable"--say in
a tort action against state officers--we would not be true to the
Fourteenth Amendment were we merely to stretch the general principle
of individual privacy on a Procrustean bed of federal precedents under
the Fourth Amendment. But, in this instance, more than that is involved,
for here we are reviewing not a determination that what the state police
did was Constitutionally permissible (since the state court quite
evidently assumed that it was not), but a determination that appellant
was properly found guilty of conduct which, for present purposes, it is to
be assumed the State could Constitutionally punish. Since there is not the
slightest suggestion that Ohio's policy is "affirmatively to sanction . . .
police incursion into privacy," (338 U.S. at 28), compare Marcus v.
Search Warrants, post, p. 717, what the Court is now doing is to impose
[680]
upon the States not only federal substantive standards of "search and
seizure", but also the basic federal remedy for violation of those
standards. For I think it entirely clear that the Weeks exclusionary rule is
but a remedy which, by penalizing past official misconduct, is aimed at
deterring such conduct in the future.
I would not impose upon the States this federal exclusionary remedy.
The reasons given by the majority for now suddenly turning its back
on Wolf seem to me notably unconvincing.
First, it is said that "the factual grounds upon which Wolf was based"
have since changed, in that more States now follow the Weeks
exclusionary rule than was so at the time Wolf was decided. While that is
true, a recent survey indicates that, at present, one-half of the States still
adhere to the common law non-exclusionary rule, and one, Maryland,
retains the rule as to felonies. Berman and Oberst, Admissibility of
Evidence Obtained by an Unconstitutional Search and Seizure, 55
N.W.L.Rev. 525, 532-533. But, in any case, surely all this is beside the
point, as the majority itself indeed seems to recognize. Our concern here,
as it was in Wolf, is not with the desirability of that rule, but only with
79

the question whether the States are Constitutionally free to follow it or

not as they may themselves determine, and the relevance of the disparity
of views among the States on this point lies simply in the fact that the
judgment involved is a debatable one. Moreover, the very fact on which
the majority relies, instead of lending support to what is now being done,
points away from the need of replacing voluntary state action with
federal compulsion.
The preservation of a proper balance between state and federal
responsibility in the administration of criminal justice demands patience
on the part of those who might like to see things move faster among the
States in this respect. Problems of criminal law enforcement vary
[681]
widely from State to State. One State, in considering the totality of its
legal picture, may conclude that the need for embracing the Weeks rule
is pressing because other remedies are unavailable or inadequate to
secure compliance with the substantive Constitutional principle
involved. Another, though equally solicitous of Constitutional rights,
may choose to pursue one purpose at a time, allowing all evidence
relevant to guilt to be brought into a criminal trial, and dealing with
Constitutional infractions by other means. Still another may consider the
exclusionary rule too rough-and-ready a remedy, in that it reaches only
unconstitutional intrusions which eventuate in criminal prosecution of
the victims. Further, a State after experimenting with the Weeks rule for
a time may, because of unsatisfactory experience with it, decide to revert
to a non-exclusionary rule. And so on. From the standpoint of
Constitutional permissibility in pointing a State in one direction or
another, I do not see at all why "time has set its face against" the
considerations which led Mr. Justice Cardozo, then chief judge of the
New York Court of Appeals, to reject for New York in People v. Defore,
242 N.Y. 13, 150 N.E. 585, the Weeks exclusionary rule. For us, the
question remains, as it has always been, one of state power, not one of
passing judgment on the wisdom of one state course or another. In my
view, this Court should continue to forbear from fettering the States with
an adamant rule which may embarrass them in coping with their own
peculiar problems in criminal law enforcement.
Further, we are told that imposition of the Weeks rule on the States
makes "very good sense," in that it will promote recognition by state and
federal officials of their "mutual obligation to respect the same
fundamental criteria" in their approach to law enforcement, and will
avoid "needless conflict between state and federal courts.'" Indeed, the
majority now finds an incongruity
[682]
in Wolf's discriminating perception between the demands of "ordered
liberty" as respects the basic right of "privacy" and the means of securing
it among the States. That perception, resting both on a sensitive regard

for our federal system and a sound recognition of this Court's remoteness
from particular state problems, is, for me, the strength of that decision.
An approach which regards the issue as one of achieving procedural
symmetry or of serving administrative convenience surely disfigures the
boundaries of this Court's functions in relation to the state and federal
courts. Our role in promulgating the Weeks rule and its extensions in
such cases as Rea, Elkins, and Rios [Footnote 11] was quite a different
one than it is here. There, in implementing the Fourth Amendment, we
occupied the position of a tribunal having the ultimate responsibility for
developing the standards and procedures of judicial administration
within the judicial system over which it presides. Here, we review state
procedures whose measure is to be taken not against the specific
substantive commands of the Fourth Amendment, but under the flexible
contours of the Due Process Clause. I do not believe that the Fourteenth
Amendment empowers this Court to mould state remedies effectuating
the right to freedom from "arbitrary intrusion by the police" to suit its
own notions of how things should be done, as, for instance, the
California Supreme Court did in People v. Cahan, 44 Cal.2d 434, 282
P.2d 905, with reference to procedures in the California courts, or as this
Court did in Weeks for the lower federal courts.

relevance to the issue of the trial, the argument continues, this doctrine is
ample warrant in precedent that the way evidence was obtained, and not
just its relevance, is constitutionally significant to the fairness of a trial. I
believe this analogy is not a true one. The "coerced confession" rule is
certainly not a rule that any illegally obtained statements may not be
used in evidence. I would suppose that a statement which is procured
during
[684]
a period of illegal detention, McNabb v. United States, 318 U. S. 332, is,
as much as unlawfully seized evidence, illegally obtained, but this Court
has consistently refused to reverse state convictions resting on the use of
such statements. Indeed, it would seem the Court laid at rest the very
argument now made by the majority when, in Lisenba v. California, 314
U. S. 219, a state-coerced confession case, it said (at 235):
"It may be assumed [that the] treatment of the petitioner [by the
police] . . . deprived him of his liberty without due process, and that the
petitioner would have been afforded preventive relief if he could have
gained access to a court to seek it."
"But illegal acts, as such, committed in the course of
obtaining a confession . . . do not furnish an answer to
the constitutional question we must decide. . . . The
gravamen of his complaint is the unfairness of the use of
his confessions, and what occurred in their procurement
is relevant only as it bears on that issue." (Emphasis
supplied.)

A state conviction comes to us as the complete product of a sovereign

judicial system. Typically, a case will have been tried in a trial court,
tested in some final appel[683]
late court, and will go no further. In the comparatively rare instance
when a conviction is reviewed by us on due process grounds, we deal
then with a finished product in the creation of which we are allowed no
hand, and our task, far from being one of over-all supervision, is,
speaking generally, restricted to a determination of whether the
prosecution was constitutionally fair. The specifics of trial procedure,
which in every mature legal system will vary greatly in detail, are within
the sole competence of the States. I do not see how it can be said that a
trial becomes unfair simply because a State determines that evidence
may be considered by the trier of fact, regardless of how it was obtained,
if it is relevant to the one issue with which the trial is concerned, the
guilt or innocence of the accused. Of course, a court may use its
procedures as an incidental means of pursuing other ends than the
correct resolution of the controversies before it. Such indeed is
the Weeks rule, but if a State does not choose to use its courts in this
way, I do not believe that this Court is empowered to impose this muchdebated procedure on local courts, however efficacious we may consider
the Weeks rule to be as a means of securing Constitutional rights.
Finally, it is said that the overruling of Wolf is supported by the
established doctrine that the admission in evidence of an involuntary
confession renders a state conviction constitutionally invalid. Since such
a confession may often be entirely reliable, and therefore of the greatest

The point, then, must be that, in requiring exclusion of an involuntary

statement of an accused, we are concerned not with an appropriate
remedy for what the police have done, but with something which is
regarded as going to the heart of our concepts of fairness in judicial
procedure. The operative assumption of our procedural system is that
"Ours is the accusatorial, as opposed to the inquisitorial system. Such
has been the characteristic of Anglo-American criminal justice since it
freed itself from practices borrowed by the Star Chamber from the
Continent whereby the accused was interrogated in secret for hours on
end." Watts v. Indiana, 338 U. S. 49, 54. See Rogers v. Richmond, 365
U. S. 534, 541. The pressures brought to bear against an accused leading
to a confession, unlike an unconstitutional violation of privacy, do not,
apart
[685]
from the use of the confession at trial, necessarily involve independent
Constitutional violations. What is crucial is that the trial defense to
which an accused is entitled should not be rendered an empty formality
by reason of statements wrung from him, for then "a prisoner . . . [has
been] made the deluded instrument of his own conviction." 2 Hawkins,
Pleas of the Crown (8th ed., 1824), c. 46, 34. That this is a procedural
80

right, and that its violation occurs at the time his improperly obtained
statement is admitted at trial, is manifest. For without this right, all the
careful safeguards erected around the giving of testimony, whether by an
accused or any other witness, would become empty formalities in a
procedure where the most compelling possible evidence of guilt, a
confession, would have already been obtained at the unsupervised
pleasure of the police.

return. Appellant was living in his uncle's house some five (5) arm's
length from Penecilla's house. At about 4:30 p.m., Penecilla's group
stopped drinking and left.chanroblesvirtualawlibrarychanrobles virtual
law library

EN BANC

This, and not the disciplining of the police, as with illegally seized
evidence, is surely the true basis for excluding a statement of the accused
which was unconstitutionally obtained. In sum, I think the coerced
confession analogy works strongly against what the Court does today.

G.R. No. 117487 December 12, 1995

In conclusion, it should be noted that the majority opinion in this case is,
in fact, an opinion only for the judgmentoverruling Wolf, and not for the
basic rationale by which four members of the majority have reached that
result. For my Brother BLACK is unwilling to subscribe to their view
that the Weeks exclusionary rule derives from the Fourth Amendment
itself (see ante, p. 661), but joins the majority opinion on the premise
that its end result can be achieved by bringing the Fifth Amendment to
the aid of the Fourth (see ante pp. 662-665). [Footnote 12] On that score
I need only say that whatever the validity of

PUNO, J.:

[686]
the "Fourth-Fifth Amendment" correlation which the Boyd case (116
U.S. 616) found, see 8 Wigmore, Evidence (3d ed.1940), 2184, we
have only very recently again reiterated the long-established doctrine of
this Court that the Fifth Amendment privilege against self-incrimination
is not applicable to the States. See Cohen v. Hurley, 366 U. S. 117.
I regret that I find so unwise in principle and so inexpedient in policy a
decision motivated by the high purpose of increasing respect for
Constitutional rights. But, in the last analysis, I think this Court can
increase respect for the Constitution only if it rigidly respects the
limitations which the Constitution places upon it, and respects as well
the principles inherent in its own processes. In the present case, I think
we exceed both, and that our voice becomes only a voice of power, not
of reason.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARNEL

ALICANDO y BRIONES,Accused-Appellant.

The case at bar involves the imposition of the death penalty. With all our
frailties, we are asked to play the role of an infallible God by exercising
the divine right to give or take away life. We cannot err in the exercise of
our judgment for our error will be irrevocable. Worse, our error can
result
in
the
worst
of
crimes
murder
by
the
judiciary.chanroblesvirtualawlibrarychanrobles virtual law library
The records reveal that appellant Arnel Alicando was charged with the
crime of rape with homicide 1 in an Information which reads:
That on or about the 12th day of June 1994 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, did
then and there willfully, unlawfully and feloniously and by means of
force, violence and intimidation to wit: by then and there pinning down
one KHAZIE MAE PENECILLA, a minor, four years of age, choking
her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation fractured
cervical vertebra and lacerations of the vaginal and rectal openings
causing profuse hemorrhages and other injuries which are necessarily
fatal
and
which
were
the
direct
cause
of
her
death.chanroblesvirtualawlibrarychanrobles virtual law library
CONTRARY TO LAW.
On June 29, 1994, appellant was arraigned with the assistance of Atty.
Rogelio Antiquiera of the PAO, Department of Justice. Appellant
pleaded guilty.chanroblesvirtualawlibrarychanrobles virtual law library
After appellant's plea of guilt, the trial court ordered the prosecution to
present its evidence. It also set the case for reception of evidence for the
appellant, if he so desired. 2
The prosecution evidence shows that in the afternoon of June 12, 1994,
Romeo Penecilla, father of the four year old victim Khazie Mae, was
drinking liquor with Ramil Rodriguez and Remus Gaddi in his
(Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo.
Appellant joined them but every now and then would take leave and

Luisa Rebada also lives in the Penecilla neighborhood, about one and a
half (1-1/2) arm's length from the house of appellant. At about 5:30 p.m.
of that day, she saw the victim at the window of appellant's house. She
offered to buy her "yemas" but appellant closed the window. Soon she
heard the victim crying. She approached appellant's house and peeped
through an opening between its floor and door. The sight shocked her
appellant was naked, on top of the victim, his left hand choking her neck.
She retreated to her house in fright. She gathered her children together
and informed her compadre, Ricardo Lagrana, then in her house, about
what she saw. Lagrana was also overcome with fear and hastily
left.chanroblesvirtualawlibrarychanrobles virtual law library
Romeo Penecilla returned to his house at 8 o'clock in the evening. He
did not find Khazie Mae. He and his wife searched for her until 1 o'clock
in the morning. Their effort was fruitless. Rebada was aware that the
Penecillas were looking for their daughter but did not tell them what she
knew. Instead, Relada called out appellant from her window and asked
him the time Khazie Mae left his house. Appellant replied he was drunk
and did not know.chanroblesvirtualawlibrarychanrobles virtual law
library
As the sun started to rise, another neighbor, Leopoldo Santiago went
down from his house to answer the call of nature. He discovered the
lifeless body of Khazie Mae under his house. Her parents were informed
and so was the police. At 9:00 a.m., Rebada suffered a change of heart.
She informed Romeo Penecilla and his wife Julie Ann, that appellant
committed the crime. Forthwith, appellant was arrested and interrogated
by PO3 Danilo Tan. He verbally confessed his guilt without the
assistance of counsel. On the basis of his uncounselled verbal confession
and follow up interrogations, the police came to know and recovered
from appellant's house, Khazie Mae's green slippers, a pair of gold
earrings, a buri mat, a stained pillow and a stained T-shirt all of which
were
presented
as
evidence
for
the
prosecution.chanroblesvirtualawlibrarychanrobles virtual law library
The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medicolegal officer. His autopsy report reveals the following injuries sustained
by the victim:
HEAD & NECK/THORACO-ABDOMINAL REGIONS:chanrobles
virtual law library
1) Contusion , purple in color, 11 x 11.3 cm., in dia.,
from left and right anterior neck, down to the medial
portion of the left and right infraclavicular
area.chanroblesvirtualawlibrarychanrobles virtual law
library
81

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., anterolateral

left
chest
wall.chanroblesvirtualawlibrarychanrobles virtual law
library
3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm.,
in
dia.,
right
anteroinferior
chest
wall.chanroblesvirtualawlibrarychanrobles virtual law
library
4) Contusion, purple in color, 4 x 3.2 cm., in dia., left
sub-costal
arch.chanroblesvirtualawlibrarychanrobles
virtual law library
5) Contusion, purple in color, 4.5 x 5 cm., in dia., superolateral, left iliac crest.
ON OPENING THE SKULL 7
THORACO-ABDOMINAL
CAVITIES:chanrobles virtual law library
a)
Fractured,
2nd
cervical
vertebra.chanroblesvirtualawlibrarychanr
obles virtual law library
b)
Fractured,
crecoid
cartilage.chanroblesvirtualawlibrarychanr
obles virtual law library
c) Both lungs, expanded with multiple
petechial
hemorrhages.chanroblesvirtualawlibraryc
hanrobles virtual law library
d) Other internal organs, congested.

VAGINAL
FINDINGS/ANAL
FINDINGS:chanrobles
virtual
law
library
a) Lacerated wound, from the fourchette
up
to
the
dome
of
the
rectum..chanroblesvirtualawlibrarychanr
obles virtual law library
b) Hematoma, from the fourchette up to
the
rectum.chanroblesvirtualawlibrarychanro
bles virtual law library
c) Lacerated wound, lateral wall of the
vagina up to the level of the promontory
of the sacrum with a length of 8
centimeters.chanroblesvirtualawlibrarych
anrobles virtual law library
d) A cylinder with a diameter of 2 cms.,
easily passes the vaginal and anal
openings.
CAUSE OF DEATH:chanrobles virtual
law library
A)
ASPHYXIA
BY
STRANGULATION.chanroblesvirtualaw
librarychanrobles virtual law library
B) FRACTURED, 2nd CERVICAL
VERTEBRA.chanroblesvirtualawlibraryc
hanrobles virtual law library

EXTREMITIES:chanrobles virtual law

library

C) HEMORRHAGE, 2nd DEGREE TO

LACERATED VAGINAL & RECTAL
OPENINGS.

1) Confluent abrasion, 3 x 2.6 cm., in

dia., posterior aspect, lower 3rd, left
forearm.chanroblesvirtualawlibrarychanr
obles virtual law library

Appellant adopted the autopsy report of Dr. Doromal as his documentary

evidence to prove that the proximate cause of Khazie Mae's death was
asphyxia by strangulation.chanroblesvirtualawlibrarychanrobles virtual
law library

2) Old wound, 2 x 1.5 cm., in dia.,

posterior
middle
3rd,
left
forearm.chanroblesvirtualawlibrarychanr
obles virtual law library

On July 20, 1994, the trial court found appellant guilty and sentenced
him to death, viz:

3) Old wound, 1.5 x 1 cm., in dia.,

antero-lateral aspect, middle 3rd, right
forearm.

WHEREFORE, the court hereby finds the accused, Arnel Alicando,

GUILTY beyond reasonable doubt for (sic) the Crime of Rape with
Homicide penalized under Article 335 of the Revised Penal Code as
amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No.
7659. Arnel Alicando is hereby sentenced to suffer a (sic) penalty of
death and to indemnify the heirs of the offended party, Khazie Mae D.

Penecilla, the sum of P50,000.00.chanroblesvirtualawlibrarychanrobles

virtual law library
The death sentence shall be executed by putting the
person under sentence to death by electrocution (electric
chair). As soon as facilities are provided by the Bureau of
Prisons, the method of carrying out his sentence shall be
changed
by
gas
poisoning
(sic).chanroblesvirtualawlibrarychanrobles virtual law
library
Here ends Khazie Mae's quest for justice. Her tormentor
must suffer for the grievous offense he had committed.
He
deserves
no
mercy.chanroblesvirtualawlibrarychanrobles virtual law
library
Cost
against
accused.chanroblesvirtualawlibrarychanrobles
law library

the
virtual

SO ORDERED.
The case is before us on automatic review considering the death penalty
imposed by the trial court. A new counsel, Atty. Joel Tiongco, took the
cudgel for appellant. In his Brief, appellant assails the decision of the
trial court as a travesty of justice.chanroblesvirtualawlibrarychanrobles
virtual law library
We find that the Decision of the trial court sentencing the appellant to
death is shot full of errors, both substantive and procedural. The
conviction is on an amalgam of inadmissible and incredible evidence and
supported by scoliotic logic.
First. The arraignment of the appellant is null and void. The trial judge
failed to follow section (1) (a) - of Rule 116 on arraignment. Said section
provides:
xxx xxx xxxchanrobles virtual law library
Sec. 1. Arraignment and plea; how made. -chanrobles
virtual law library
(a) The accused must be arraigned before the court where
the complaint or information has been filed or assigned
for trial. The arraignment must be made in open court by
the judge or clerk by furnishing the accused a copy of the
complaint or information with the list of witnesses,
reading the same in the language or dialect known to him
and asking him whether he pleads guilty or not guilty.
The prosecutor may, however, call at the trial witnesses
other than those named in the complaint or information.
82

The reading of the complaint or information to the appellant in

the language or dialect known to him is a new requirement imposed by
the 1985 Rules on Criminal Procedure. It implements the constitutional
right of an appellant ". . . to be informed of the nature and cause of the
accusation against him." 3 The new rule also responds to the reality that
the Philippines is a country divided by dialects and Pilipino as a national
language is still in the process of evolution. 4 Judicial notice can be taken
of the fact that many Filipinos have limited understanding either of the
Pilipino or English language, our official languages for purposes of
communication and instruction. 5 The importance of reading the
complaint or information to the appellant in the language or dialect
known to him cannot thus be understated.
In the case at bar, the records do not reveal that the Information against
the appellant was read in the language or dialect known to him. The
Information against the appellant is written in the English language. It is
unbeknown whether the appellant knows the English language. Neither
is it known what dialect is understood by the appellant. Nor is there any
showing that the Information couched in English was translated to the
appellant in his own dialect before his plea of guilt. The scanty transcript
during his arraignment, reads: 6
xxx xxx xxxchanrobles virtual law library
Prosecutor Edwin Fama - Appearing
prosecutorchanrobles virtual law library

as

public

Atty. Rogelio Antiquiera - For the accused, Your Honor.

Ready
for
arraignment.chanroblesvirtualawlibrarychanrobles
virtual law library
Interpreter - (Reading the information to the accused for
arraignment and pre-trial.)chanrobles virtual law library
Note: (After reading the information to the accused,
accused pleads guilty)
One need not draw a picture to show that the arraignment of the
appellant is a nullity. It violated section 1(a) of Rule 116, the rule
implementing the constitutional right of the appellant to be informed of
the nature and cause of the accusation against him. It also denied
appellant his constitutional right to due process of law. 7 It is urged that
we must presume that the arraignment of the appellant was regularly
conducted. When life is at stake, we cannot lean on this rebuttable
presumption. We cannot assume. We must be sure.
Second. The plea of guilt made by the appellant is likewise null and
void. The trial court violated section 3 of Rule 116 when it accepted the
plea of guilt of the appellant. Said section provides:

Sec. 3. Plea of guilty to capital offense; reception of evidence.chanrobles virtual law library
When the accused pleads guilty to a capital offense, the
court shall conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea and require the prosecution to
prove his guilt and the precise degree of culpability. The
accused may also present evidence in his behalf.
The records reveal how the trial judge inadequately discharged this duty
of conducting a "searching inquiry." In the hearing of June 28, 1994, the
transcripts reveal the following: 8
Note (After reading the
information
to
the
accused, accused pleads
guilty.)chanrobles virtual
law library
Court Question (sic) of
the
court
to
the
accused.chanroblesvirtual
awlibrarychanrobles
virtual law library
Q Considering that this is
a crime and under the
amended law is a heinous
crime, because of your
plea of guilty without the
consent or even against
the discretion of the
court, the court will give
you a mandatory death
penalty because of the
crime charged, do you
understand?chanrobles
virtual law library
Accused
Yes,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Q Did you enter a plea of
guilty on your own
voluntary will or without
any force or intimidation
from
any
one
or
whatever?chanrobles
virtual law library

Accused None, Your

Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Q
Are
you
sure?
chanrobles virtual law
library
Accused
Yes,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Q Or maybe because you
were manhandled or
maltreated by anyone and
that will just be the
consideration for you to
plead guilty?chanrobles
virtual law library
Accused
No,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Court Were you not
manhandled, please let us
see your body?chanrobles
virtual law library
Note (Accused raised his
prison uniform or shirt
and showed to the court
his body from waist
up.)chanrobles
virtual
law library
Accused
No,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Court You were not
maltreated in the jail?
chanrobles virtual law
library
Accused
No,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
83

Court Please let us see

whether you have bruises
so that you will be
examined by a physician
to the order of the court?
chanrobles virtual law
library
Accused
No,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Court If you will plead
guilty, that plea of guilty
has no use because there
will be a mandatory death
penalty, do you still insist
on your plea of guilty?
chanrobles virtual law
library
Accused
Yes,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Court If you plead guilty
to the crime charged there
will be some effects on
your civil rights hut not
until the decision will be
affirmed by the Supreme
Court.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Accused
Yes,
Your
Honor.chanroblesvirtuala
wlibrarychanrobles
virtual law library
Note (See Order dated
June 28, 1994 attached to
the records of this case.)
In the next hearing on July 11, 1994, the following verbal exchange
transpired, viz: 9
xxx xxx xxx
Fiscal Fama: Appearing
as the public prosecutor,

ready,
Your
Honor.chanrobles virtual
law library
Our first witness is Dr.
Tito
Doromal,
Your
Honor.chanrobles virtual
law library
Atty. Antiquiera: For the
accused,
Your
Honor.chanrobles virtual
law library
Court Before the court
will proceed with the
reception of evidence by
the prosecution Arnel
Alicando, please come
here. (at this juncture,
Arnel Alicando, come
near to the court)
The court is warning you
again
that
this
is
reception of evidence by
the prosecution after you
plead guilty to the crime
charged at, do you
understand?
A Yes.chanrobles virtual
law library
Q Do you still affirm and
confirm to your plea of
guilty of rape with
homicide?
A
Yes,
Your
Honor.chanrobles virtual
law library
Q Do you still insist that
your plea of guilty is
voluntary without force,
intimidation
or
whatsoever?
A Yes.chanrobles virtual
law library

Q The court is warning

you that after reception of
evidence, the imposable
penalty is mandatory
death?
A
Yes,
Your
Honor.chanrobles virtual
law library
Q Despite of that, you
still insist on your plea of
guilty?
A
Yes,
Your
Honor.chanrobles virtual
law library
Court Okey, proceed.
Section 3 of Rule 116 which the trial court violated is not a new rule for
it merely incorporated the decision of this Court in People vs. Apduhan,
Jr., 10 and reiterated in an unbroken line of cases. 11 The bottom line of
the rule is that the plea of guilt must be based on a free and informed
judgment. Thus, the searching inquiry of the trial court must be focused
on: (1) the voluntariness of the plea, and (2) the full comprehension of
the consequences of the plea. The questions of the trial court failed to
show the voluntariness of the plea of guilt of the appellant nor did the
questions demonstrate appellant's full comprehension of the
consequences of his plea. The records do not reveal any information
about the personality profile of the appellant which can serve as a
trustworthy index of his capacity to give a free and informed plea of
guilt. The age, socio-economic status, and educational background of the
appellant were not plumbed by the trial court. The questions were
framed in English yet there is no inkling that appellant has a nodding
acquaintance of English. It will be noted too that the trial court did not
bother to explain to the appellant the essential elements of the crime of
rape with homicide.chanroblesvirtualawlibrarychanrobles virtual law
library
A cursory examination of the questions of the trial court to establish the
voluntariness of appellant's plea of guilt will show their utter
insufficiency. The trial court simply inquired if appellant had physical
marks of maltreatment. It did not ask the appellant when he was arrested,
who arrested him, how and where he was interrogated, whether he was
medically examined before and after his interrogation, etc. It limited its
efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone. Regretfully, it even
turned a blind eye on the following damning entry on the June 13, 1994
Record of Events of the Iloilo PNP (Exh. "M") showing that after his
84

arrest, the appellant was mobbed by inmates while in jail and had
suffered hematoma, viz:
c-0262-94
INFORMATION
2:50 PM, - P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP
MFC, informed this office thru SPO1 W. Garcera alleging that at about
9:00 AM this date when the suspect ARNEL ALICANDO Y BRIONES,
24 yrs. old, residence of Rizal, Palapala Zone I, CP, been arrested and
mobbed by the irrate residents of Zone II Rizal, Palapala, GP, in
connection of the Rape with Homicide case wherein the victim KHAZIE
MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place who
was discovered dead under the house thereat. Suspect when turned over
to this office and put on lock up cell was also mobbed by the angry
inmates thus causing upon him hematoma contusion on different parts of
his body.
Likewise, the trial court's effort to determine whether appellant had full
comprehension of the consequences of his plea is fatally flawed. It
warned the appellant he would get the mandatory death penalty without
explaining the meaning of "mandatory" It did not inform the appellant of
the indemnity he has to pay for the death of the victim. It cautioned
appellant there ". . . will be some effects on your civil rights" without
telling the appellant what those "effects" are and what "civil rights" of
his are involved.chanroblesvirtualawlibrarychanrobles virtual law library
Appellant's plea of guilt is void and the trial court erred in using it to
sentence him to death. We stress that under the 1985 Rules of Criminal
Procedure, a conviction in capital offenses cannot rest alone on a plea of
guilt. Section 3 of Rule 116 requires that after a free and intelligent plea
of guilt, the trial court must require the prosecution to prove the guilt of
the appellant and the precise degree of his culpability beyond reasonable
doubt. This rule modifies prior jurisprudence that a plea of guilt even in
capital offenses is sufficient to sustain a conviction charged in the
information without need of further proof. The change is salutary for it
enhances one of the goals of the criminal process which is to minimize
erroneous conviction. We share the stance that "it is a fundamental value
determination of our system that it is far worse to convict an innocent
person than let a guilty man go free. 12
Third. Some prosecution evidence, offered independently of the plea of
guilt of the appellant, were inadmissible, yet, were considered by the
trial
court
in
convicting
the
appellant.chanroblesvirtualawlibrarychanrobles virtual law library
Thus, the trial court gave full faith and credit to the physical
evidence presented by the prosecution. To quote its Decision, 13 viz:
xxx xxx xxxchanrobles virtual law library

Further, there are physical evidence to prove Khazie was

raped. These consists of a pillow with bloodstains in its
center 14 and the T-shirt 15 of the accused colored white
with bloodstains on its bottom. These physical evidence
are evidence of the highest order. They strongly
corroborate the testimony of Luisa Rebada that the
victim was raped.
These are inadmissible evidence for they were gathered by PO3 Danilo
Tan of the Iloilo City PNP as a result of custodial interrogation
where appellant verbally confessed to the crime without the benefit of
counsel. PO3 Tan admitted under cross-examination, viz: 16
xxx xxx xxx
CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:
Q Mr. Witness, when for
the first time did you see
Arnel
Alicando?
chanrobles virtual law
library
A June 13, 1994, when I
arrested
him.chanroblesvirtualawl
ibrarychanrobles virtual
law library
Q Previous to that you
have never seen him?
chanrobles virtual law
library
A Yes, sir.
Q When for the first time
did you start investigating
Arnel
Alicando?
chanrobles virtual law
library

suspect in the raping of

Khazie Mae Penecilla?
chanrobles virtual law
library
A Yes, sirchanrobles
virtual law library
Atty.
Antiquiera:chanrobles
virtual law library
Q And who was that
person who informed you
of the suspect?chanrobles
virtual law library
A
Luisa
Rebada.chanroblesvirtual
awlibrarychanrobles
virtual law library
Q Mrs. Rebada who is
the witness in this case?
chanrobles virtual law
library
A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library
Q And you started
investigating
Arnel
Alicando in the morning
of June 13, 1994?
chanrobles virtual law
library
A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library

A After I finished
investigating the body of
the victim, Khazie Mae
Penecilla.chanroblesvirtu
alawlibrarychanrobles
virtual law library

Q How long did you

interrogate
Arnel
Alicando in the morning
of June 13, 1994?
chanrobles virtual law
library

Q And that was also after

you were informed that
Arnel Alicando was a

A I cannot remember the

length
of
time
I
85

investigated
him.chanroblesvirtualawl
ibrarychanrobles virtual
law library
Q Did it take you the
whole morning of June
13, 1994 in interrogating
and investigating Arnel
Alicando?chanrobles
virtual law library
A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library
Q And the investigation
you conducted continued
in the afternoon of the
same
date?chanrobles
virtual law library
A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library
Q The following day,
June 14, 1994, you still
investigated
and
interrogated
Arnel
Alicando.chanroblesvirtu
alawlibrarychanrobles
virtual law library
A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library
Q And when did you
stop, finally, investigating
and interrogating Arnel
Alicando?chanrobles
virtual law library
A After I finished
recovering all the exhibits
in relation to this
case.chanroblesvirtualawl

ibrarychanrobles
law library

virtual

Court:chanrobles virtual
law library

Q What date did you stop

your
investigation?
chanrobles virtual law
library

Sustained.chanroblesvirtu
alawlibrarychanrobles
virtual law library

A June 14, 1994, when I

finished recovering the
white T-shirt and pair of
earring.chanroblesvirtual
awlibrarychanrobles
virtual law library
Atty.
Antiquiera:chanrobles
virtual law library
Q You testified in this
case, Mr. Witness, you
never informed the court
that you apprised the
accused
of
his
constitutional rights, is
that correct?chanrobles
virtual law library
A
I
apprised
him.chanroblesvirtualawl
ibrarychanrobles virtual
law library
Q My question is, during
your testimony before
this court under the direct
examination
of
the
prosecution you never
informed the court that
you apprised the accused
of his constitutional
rights?chanrobles virtual
law library
Pros.
Fama:chanrobles
virtual law library
I did not ask him that
question. How will he
answer?chanrobles
virtual law library

Atty.
Antiquiera:chanrobles
virtual law library
Q When did you inform,
the date when you
informed Alicando of his
Constitutional
rights?
chanrobles virtual law
library
A
On
June
13.chanroblesvirtualawlib
rarychanrobles
virtual
law library
Q On what hour did you
inform him?chanrobles
virtual law library
A After the witness
identified
him.chanroblesvirtualawl
ibrarychanrobles virtual
law library
Q What constitutional
rights did you inform
Alicando of?chanrobles
virtual law library
A The right to remain
silent, and right to get his
lawyer and I have
interpreted in Visayan
language.chanroblesvirtu
alawlibrarychanrobles
virtual law library
Q And during your
investigation for almost
two (2) days the accused
was never represented by
counsel, is that correct?

86

A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library
Atty.
Antiquiera:chanrobles
virtual law library
Q Are you aware of the
law that enjoins a public
officer to inform the
person
of
his
constitutional
rights?
chanrobles virtual law
library
A
Yes,
sir.chanroblesvirtualawlib
rarychanrobles
virtual
law library
That is all, Your Honor.
It is now familiar learning that the Constitution has stigmatized
as inadmissible evidence uncounselled confession or admission. Section
12 paragraphs (1) and (3) of Article III of the Constitution provides:
xxx xxx xxxchanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual
law library
xxx xxx xxxchanrobles virtual law library
(3) Any confession or admission obtained in violation of
this or the preceding section shall be inadmissible against
him.
In the case at bar, PO3 Tan did not even have the simple sense to reduce
the all important confession of the appellant in writing. Neither did he
present any writing showing that appellant waived his right to silence
and to have competent and independent counsel despite the blatant
violation of appellant's constitutional right, the trial court allowed his
uncounselled confession to flow into the records and illicitly used it in

sentencing him to death.chanroblesvirtualawlibrarychanrobles virtual

law library
It is not only the uncounselled confession that is condemned as
inadmissible, but also evidence derived therefrom. The pillow and the Tshirt with the alleged bloodstains were evidence derived from the
uncounselled confession illegally extracted by the police from the
appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17
xxx xxx xxx
Q Did the accused Arnel Alicando
accompany you to the place of the
incident?

Q You mean to say that you returned

back to the scene of the incident that
time?
A It was already night time and it was
only Kagawad Rodolfo Ignacio, my
companion, who went to the place of the
incident.chanrobles virtual law library
Q You mean to say you were verbally
instructed by the accused?
A Yes, sir.chanrobles virtual law library

A Yes, sir.chanrobles virtual law library

Q In what particular place did you

recover those things?

Q When you arrived at the place of the

incident what did you do?

A Inside the room where he raped the

child.chanrobles virtual law library

A He pointed to the fish basin.chanrobles

virtual law library

Q Whose house is that?

Q Can you identify this fish basin which

you said pointed to you by Arnel
Alicando?
A Yes, sir.chanrobles virtual law library
Q Please point?
A (Witness pointing to the fish basin
already marked as Exhibit "H".)
Q Did you ask the accused what he did
with this fish basin?

A
The
house
of
Imelda
Alicando.chanrobles virtual law library
Q The wife of Romeo Alicando?
A Yes, sir.chanrobles virtual law library
Q In what particular place is that
situated?
A Inside the room where the accused was
sleeping at Rizal-Palapala.chanrobles
virtual law library
Pros. Fama:

A I asked the accused what he did with

the fish basin and he answered that he
used the fish basin to cover Khazie Mae
Penecilla when she was already
dead.chanrobles virtual law library

Q You mean to say inside that room the

victim was raped by

Pros. Fama:

A Yes, sir.chanrobles virtual law library

Q You mean to say to conceal the crime?

Q Can you point that pillow which you

said you recovered inside the room of
Imelda Alicando?

A Yes, sir.chanrobles virtual law library

Q What else aside from this fish basin,
what else did you recover?
A At around 7 o'clock in the evening he
further pointed to us the old mat and
the pillow wherein he layed the victim
Khazie Mae Penecilla

the accused?

A Yes, sir.chanrobles virtual law library

Q And the mat?
A (Witness taking out from the fish basin
the mat and pillow.)
87

Q Did you find something on the pillow?

Q Please examine that white t-shirt?

A The pillow have bloodstain in the

middle.chanrobles virtual law library

A The t-shirt have a bloodstain.

. . This was already marked as Exhibit

"J", Your Honor and the mat as Exhibit
"I".chanrobles virtual law library
Q Aside from this what did you recover
from the place of incident?
A On June 14, 1994, at about 10:00
o'clock in the morning the accused Arnel
Alicando further informed me that he
kept the gold earring of the victim and
her clothes inside the room of the house
of Imelda Alicando.chanrobles virtual
law library
Q Where?
A I saw the clothes of Khazie Mae
Penecilla inside the room where the rape
took place hanged on the clothes line.
And I found the pair of earring at the
bamboo post of the fence.chanrobles
virtual law library
Court:
Q Where is that bamboo post of the fence
situated?
A Around the fence of Imelda Alicando
situated at the from gate on the right
side.chanrobles virtual law library
Pros. Fama:
Q You mean to say you returned back on
June 14, you recovered the items
accompanied by the accused?
A No more, I only followed his
direction.chanrobles virtual law library
Q He made verbal direction to you?
A Yes, sir.chanrobles virtual law library
Q Can you please show us the white tshirt?
A (Witness taking out a white t-shirt from
the fish basin.)

We have not only constitutionalized the Miranda warnings in our

jurisdiction. We have also adopted the libertarian exclusionary rule
known as the "fruit of the poisonous tree," a phrase minted by Mr.
Justice Felix Frankfurter in the celebrated case of Nardone v. United
States. 18According to this rule, once the primary source (the "tree") is
shown to have been unlawfully obtained, any secondary or derivative
evidence (the " fruit " ) derived from it is also inadmissible. 19 Stated
otherwise, illegally seized evidence is obtained as a direct result of the
illegal act, whereas the "fruit of the poisonous tree" is the indirect
result of the same illegal act. The "fruit of the poisonous tree" is at least
once removed from the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because
the originally illegally obtained evidence taints all evidence subsequently
obtained. 20 We applied this exclusionary rule in the recent case
of People vs. Salanga, et al., 21 a ponencia of Mr. Justice Regalado.
Salanga was the appellant in the rape and killing of a 15-year old barrio
lass. He was, however, illegally arrested. Soldiers took him into custody.
They gave him a body search which yielded a lady's underwear. The
underwear was later identified as that of the victim. We acquitted
Salanga. Among other reasons , we ruled that "the underwear allegedly
taken from the appellant is inadmissible in evidence, being a socalled "fruit of the poisonous tree." 22
But even assuming arguendo that the pillow and the t-shirt were
admissible evidence, still, the trial court erred in holding that they
"strongly corroborated the testimony of Luisa Rebada that the victim
was raped." For one, there was no basis for the trial court to conclude
that the stains on the pillow and t-shirt were human bloodstains. The
pillow and the t-shirt were not examined by any expert. To hold that they
were human bloodstains is guesswork. For another, there was no
testimony that the stains were caused by either the blood of the appellant
or the victim. In addition, there was no testimony that the t-shirt was the
one worn by the appellant when he allegedly committed the crime. It
must also be noted that it is not unnatural for appellant to have
bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla
himself, the father of the victim, testified he knows the appellant
"because he used to accompany me during butchering of animals." 23
The burden to prove that an accused waived his right to remain silent
and the right to counsel before making a confession under custodial
interrogation rests with the prosecution. It is also the burden of the
prosecution to show that the evidence derived from confession is not
tainted as "fruit of the poisonous tree." The burden has to be discharged
by clear and convincing evidence. Indeed, par. 1 of Section 12 of Article

III of the Constitution provides only one mode of waiver - the waiver
must be in writing and in the presence of counsel. In the case at bar, the
records show that the prosecution utterly failed to discharge this burden.
It matters not that in the course of the hearing, the appellant failed to
make a timely objection to the introduction of these constitutionally
proscribed evidence. The lack of objection did not satisfy the heavy
burden
of
proof
that
rested
on
the
prosecution.chanroblesvirtualawlibrarychanrobles virtual law library
There is no and there ought not to be any
disagreement on basic principles. The
Court should be concerned with the
heinousness of the crime at bar and its
despicable perpetration against a 4-year
old girl, an impersonation of innocence
itself. The Court should also be
concerned with the multiplication of
malevolence in our midst for there is no
right to be evil, and there are no ifs and
buts about the imposition of the death
penalty as long as it

remains unchallenged as part of the laws of our land. These concerns are
permanent, norms hewn in stone, and they transcend the transitoriness of
time.chanroblesvirtualawlibrarychanrobles virtual law library
Be that as it may, our commitment to the criminal justice system is not
only to convict and punish violators of our laws. We are equally
committed to the ideal that the process of detection, apprehension,
conviction and incarceration of criminals should be accomplished with
fairness, and without impinging on the dignity of the individual. In a
death penalty case, the Court cannot rush to judgment even when a
lowlife is involved for an erroneous conviction will leave a lasting stain
in our escutcheon of justice.chanroblesvirtualawlibrarychanrobles virtual
law library
In sum, the Court cannot send the appellant to die in the electric chair on
the basis of the procedural irregularities committed by, and the
inadmissible evidence considered by the trial court. In Binabay
vs. People, et al., 24 ponencia of Mr. Chief Justice R. Concepcion, this
Court held that no valid judgment can be rendered upon an invalid
arraignment. Since in the case at bar, the arraignment of the appellant is
void, his judgment of conviction is also void. In fairness to the appellant,
and in justice to the victim, the case has to be remanded to the trial court.
for further proceedings. There is no philosophy of punishment that
allows the State to kill without any semblance of fairness and
justice.chanroblesvirtualawlibrarychanrobles virtual law library
88

IN VIEW WHEREOF, the Decision in Criminal Case No. 43663,

convicting accused Arnel Alicando of the crime of Rape with Homicide
and sentencing him to suffer the penalty of death is annulled and set
aside and the case is remanded to the trial court for further proceedings.
No costs.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug,
Francisco and Panganiban, JJ., concur.
chanrobles virtual law library
chanrobles virtual law library
Separate Opinions
KAPUNAN, J., dissenting:chanrobles virtual law library
The civilized mind normally recoils at the idea of taking a man's life by
way of retribution for the commission of a crime. However, every so
often, a crime so dastardly and repulsive comes along that even an
individual usually predisposed towards rehabilitating the hard-core
criminal would no longer wish to suffer in silent rage at society's kidglove treatment of such offender, but would readily opt to exact a
commensurate requital in the form of capital punishment where
circumstances so demand.chanroblesvirtualawlibrarychanrobles virtual
law library
Sociological theory at least since Emile Durkheim (1858-1917) has
posited the idea that setting absolute outer limits on deviance is a
necessary component of group identification and survival. Justice Oliver
Wendell Holmes may have sensed this truth when he wrote, in The
Common Law(1881), "The first requirement of a sound body of law is
that it should correspond with the actual feelings and demands of the
community, whether right or wrong (1938 ed:, p. 41)." 1
Thus, impelled by the alarming upsurge of crime resulting in the loss of
human lives and wanton destruction of property affecting the nation's
efforts towards sustainable development and prosperity while at the same
time undermining the people's faith in the Government, Congress
enacted Republic Act 7659, 2 imposing capital punishment on certain
heinous crimes.chanroblesvirtualawlibrarychanrobles virtual law library
The early Spartans had word for such crimes: haineus, hateful,
abominable, from the Greek prefix haton, denoting acts so hatefully or
shockingly evil. The acts charged in the case at bench belong to this
genre.chanroblesvirtualawlibrarychanrobles virtual law library
A totally innocent child was forever denied the opportunity to enjoy life
beyond the age of four by the gruesome and hideous acts allegedly
committed by the appellant who, according to the prosecution, was not
content merely with satisfying his beastly desires on her, but also

strangled her to death. Whether or not the circumstances of the present

case require the imposition of the death penalty is the ultimate issue
before us. After a thorough review of the facts and the evidence, I am
afraid, I have to dissent from the majority. The legal evidenceavailable to
us overwhelmingly supports the lower court's conclusions. We should
not shirk from our legal duty to impose the death penalty.

with a blood stain in the middle, and a stained T-shirt owned by

appellant.chanroblesvirtualawlibrarychanrobles virtual law library
An autopsy conducted and Dr. Tito Doromal, the medico-legal officer,
revealed the following findings:

BEAD
&
NECK/THORACOABDOMINAL
REGIONS:chanrobles
virtual law library

In the afternoon of June 12, 1994, Romeo Penecilla, father of four-yearold Khazi Mae, was having a drinking spree with Ramil Rodriguez,
Remus Goddi and the appellant at his (Romeo's) house at Barangay
Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody left,
except for the appellant. Appellant was residing at his uncle's house
about five (5) arm's length away from the Penecilla's
house.chanroblesvirtualawlibrarychanrobles virtual law library

1) Contusion, purple in color, 11 x 11.3

cm., in dia., from left and right anterior
neck, down to the medial portion of the
left
and
right
infra-clavicular
area.chanroblesvirtualawlibrarychanroble
s virtual law library

When Romeo Penecilla arrived home at 8:00 that evening, he could not
find Khazi Mae. He and his wife looked for her until 1:00 in the morning
to no avail.chanroblesvirtualawlibrarychanrobles virtual law library

2) Contusion, bluish purple, 5.5 x 6.3

cm., in dia., antero-lateral left chest
wall.chanroblesvirtualawlibrarychanroble
s virtual law library

The next morning, Leopoldo Santiago, a neighbor, got the shock of his
life when, answering the call of nature outside his house, he chanced the
dead body of Khazi Mae. Immediately, the girl's parents were informed.
The
small,
lifeless
body
was
brought
to
their
house.chanroblesvirtualawlibrarychanrobles virtual law library
The matter was reported to the police at once. At this point, Luisa
Rebada, who lived about 1-1/2 arm's length away from the house of
appellant related to the girl's distraught parents what she knew. 3
Rebada recounted that at about 5:30 of the afternoon before, she saw
Khazi Mae at the window of appellant's house. She called out to her and
offered to buy "yemas," for her. Appellant suddenly closed the window.
Later on, Luisa heard Khazi Mae cry and then squeal. Her curiosity
aroused, she crept two steps up the appellant's house, peeped through an
opening between the floor and the door, and saw appellant naked on top
of Khazi Mae, his right hand choking the girl's neck. Rebada became
frightened and went back to her house to gather her children. She told
her compadre, Ricardo Lagranai who was in her house at that time, of
what she saw. The latter got nervous and left. That evening when she
heard that Khazi Mae's parents were looking for the little child, she
called out from her window and asked appellant what time Khazi Mae
left his house. Appellant replied that he did not know since he was
drunk. 4 With
Luisa
Rebada's
revelation,
appellant
was
arrested.chanroblesvirtualawlibrarychanrobles virtual law library
During the investigation conducted by PO3 Danilo Tan, appellant readily
admitted raping and killing Khazi Mae. 5 The police were able to
recover from appellant's house Khazi Mae's green slippers, a pair of gold
earrings placed on top of a bamboo post, a bloodied buri mat, a pillow

3) Contusion, bluish in color, 3 in nos., 1,

0.5 & 1.1 cm., in dia., right anteroinferior
chest
wall.chanroblesvirtualawlibrarychanroble
s virtual law library
4) Contusion, purple in color, 4 x 3.2
cm.,
in
dia.,
left
sub-costal
arch.chanroblesvirtualawlibrarychanroble
s virtual law library
5) Contusion, purple in color, 4.5 x 5
cm., in dia., supero-lateral, left iliac crest.
ON OPENING THE SKULL &
THORACO-ABDOMINAL
CAVITIES:chanrobles virtual law library
a)
Fractured,
2nd
cervical
vertebra.chanroblesvirtualawlibrarychanr
obles virtual law library
b)
Fractured,
crecoid
cartilage.chanroblesvirtualawlibrarychanr
obles virtual law library
c) Both lungs, expanded with multiple
petechial
hemorrhages.chanroblesvirtualawlibraryc
hanrobles virtual law library
d) Other internal organs, congested.
89

EXTREMITIES:chanrobles virtual law

library
1) Confluent abrasion, 3 x 2.6 cm., in
dia., posterior aspect, lower 3rd, left
forearm.chanroblesvirtualawlibrarychanr
obles virtual law library
2) Old wound, 2 x 1.5 cm., in dia.,
posterior
middle
3rd,
left
forearm.chanroblesvirtualawlibrarychanr
obles virtual law library
3) Old wound, 1.5 x 1 cm., in dia.,
antero-lateral aspect, middle 3rd, right
forearm.
VAGINAL
FINDINGS/ANAL
FINDINGS:chanrobles
virtual
law
library
a) Lacerated wound, from the fourchette
up
to
the
dome
of
the
rectum.chanroblesvirtualawlibrarychanro
bles virtual law library
b) Hematoma, from the fourchette up to
the
rectum.chanroblesvirtualawlibrarychanro
bles virtual law library
c) Lacerated wound, lateral wall of the
vagina up to the level of the promontory
of the sacrum with a length of 8
centimeters.chanroblesvirtualawlibrarych
anrobles virtual law library
d) A cylinder with a diameter of 2 cms.,
easily passes the vaginal and anal
openings.
CAUSE OF DEATH:chanrobles virtual
law library
A)
ASPHYXIA
STRANGULATIONchanrobles
law library

BY
virtual

B) FRACTURED, 2nd CERVICAL

VERTEBRA.chanroblesvirtualawlibraryc
hanrobles virtual law library

C) HEMORRHAGE, 2nd DEGREE TO

LACERATED VAGINAL & RECTAL
OPENINGS. 6

First, that the arraignment of the appellant is null, and void;

Second, that the plea of guilt made by the appellant is likewise null and
void;

Consequently, an information was filed with the Regional Trial Court of

Iloilo City, Branch 38, docketed as Criminal Case No. 43663, charging
Arnel Alicando with the crime of rape with homicide, committed as
follows:

Third, some prosecution evidence, offered independently of the plea of

guilt of the appellant, were inadmissible, yet were considered by the trial
court in convicting the appellant.chanroblesvirtualawlibrarychanrobles
virtual law library

That on or about the 12th day of June, 1994 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, did
then and there willfully, unlawfully and feloniously and by means of
force, violence and intimidation to wit: by then and there pinning down
one KHAZIE MAE PENECILLA, a minor, four years of age, choking
her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation, fractured
cervical vertebra and lacerations of the vaginal and rectal openings
causing profuse hemorrhages and other injuries which are necessarily
fatal and which were the direct cause of her death
thereafter.chanroblesvirtualawlibrarychanrobles virtual law library

I strongly disagree.

CONTRARY TO LAW. 7chanrobles virtual law library

On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the
Public Attorney's Office (PAO), pleaded guilty to the crime
charged.chanroblesvirtualawlibrarychanrobles virtual law library
The trial court ordered the prosecution to present evidence to prove the
guilt of the accused and the precise degree of his culpability. It likewise
set the case for reception of evidence for the accused, if he wished to. 8
In the course of the trial, the prosecution presented (1) Luisa Rebada; (2)
Dr. Tito Doromal, the medico-legal officer; (3) SPO1 Manuel Artuz, the
exhibit custodian of Iloilo City Police Station; (4) PO3 Danilo Tan; (5)
SPO3 Rollie Luz, police investigators; and (6) Romeo Penecilla, the
victim's father.chanroblesvirtualawlibrarychanrobles virtual law library
The defense, for its part, merely presented the autopsy report of Dr. Tito
Doromal to show that the proximate cause of death was asphyxia by
strangulation.chanroblesvirtualawlibrarychanrobles virtual law library
On July 20, 1994, the trial judge rendered a decision imposing the death
penalty on Arnel Alicando.chanroblesvirtualawlibrarychanrobles virtual
law library
The case is now before us on automatic review. Disagreeing with the
trial court's conviction of the accused for the crime of Rape with
Homicide and the said court's imposition of the death penalty the Court's
majority has decided to overturn the conviction and remand the case to
the trial court on the basis of the following alleged procedural
irregularities:

II
THERE WAS SUBSTANTIAL, IF NOT FULL
COMPLIANCE WITH EXISTING RULES ON
ARRAIGNMENT AND PLEA.
A thorough review of the record reveals that there was full compliance
with
existing
rules
on
arraignment
and
plea.chanroblesvirtualawlibrarychanrobles virtual law library
It is plainly obvious from an examination of the appropriate rules and the
record of the case that: 1) there is absolutely nothing on the record which
would warrant a finding the information was not read in the language or
dialect known to the appellant; 2) the rule on arraignment and plea does
not absolutely require that the same be indicated in the record of every
criminal case; 3) Rule 116 Section 1 contains nothing requiring trial
courts to indicate in the record the fact that the information was read in
the language or dialect known to the defendant, even if the same was in
fact
actually
complied
with
by
the
lower
court.chanroblesvirtualawlibrarychanrobles virtual law library
The rule on arraignment, Rule 116 provides the following:
Sec. 1: Arraignment and plea; how made. - (a) The accused must be
arraigned before the court where the complaint or information has been
filed or assigned for trial. The arraignment must be made in open court
by the judge or clerk by furnishing the accused a copy of the complaint
or information with the list of witnesses, reading the same in the
language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecution may, however, call at the trial
witnesses other than those named in the complaint or
information.chanroblesvirtualawlibrarychanrobles virtual law library
(b) The accused must be present at the arraignment and
must personally enter his plea. Both arraignment and
plea shall be made of record, but a failure to enter of
record shall not affect the validity of the
proceedings.chanroblesvirtualawlibrarychanrobles
virtual law library

90

(c) If the accused refuses to plead, or makes a conditional

plea of guilty, a plea of not guilty shall be entered for
him.

Appearing
as
public
prosecutor.chanroblesvirtualawlibrarycha
nrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Atty. Rogelio Antiquiera -chanrobles

virtual law library

Sec. 3: Plea of guilty to capital offense; reception of

evidence. When the accused pleads guilty to a capital
offense, the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to
prove his guilt and the precise degree of culpability. the
accused may also present evidence in his behalf.
When an accused is arraigned in connection with a criminal charge, it is
the duty of the court to inform him of its nature and cause so that he may
be able to comprehend the charges against him as well as the
circumstances attendant thereto. When the charge is of a serious nature,
it becomes the imperative duty of the lawyer present not only to assist
the accused during the reading of the information but also to explain to
him the gravity and consequence of his plea. 9
Trial judges are enjoined to refrain from accepting with alacrity the
accused's plea of guilty. While justice demands speedy administration,
judges are duty bound to be extra solicitous in seeing to it that when an
accused pleads guilty, he fully understands the meaning of his plea and
the import of an inevitable conviction. 10
Consequently, three things need to be accomplished after the accused in
a criminal case enters a plea of guilty to a capital offense:chanrobles
virtual law library
(1) the court should conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of the accused's
plea;chanrobles virtual law library
(2) the lower court should require the prosecution to prove the guilt of
the accused and the precise degree of his culpability; andchanrobles
virtual law library
(3) the court should inquire whether or not the accused wishes to present
evidence on his behalf and should allow him to do so if he so desires. A
judge who fails to observe this requirement commits a grave abuse of
discretion.chanroblesvirtualawlibrarychanrobles virtual law library
These requirements have been complied with in this case, which the
following pertinent portions of the appellant's arraignment, quoted from
the record support:
Prosecutor Edwin Fama -chanrobles
virtual law library

For the accused, Your Honor. Ready for

arraignment.chanroblesvirtualawlibraryc
hanrobles virtual law library
Interpreter:chanrobles virtual law library
(Reading the information to the accused
for arraignment and pre-trial.)chanrobles
virtual law library
Note:chanrobles virtual law library
(After reading the information to the
accused,
accused
pleads
guilty.)chanrobles virtual law library
Court:chanrobles virtual law library
Question of the court to the
accused.chanroblesvirtualawlibrarychanr
obles virtual law library
Q Considering that this is a crime and
under the amended law is a heinous
crime, because of your plea of guilty
without the consent or even against the
discretion of the court, the court will give
you a mandatory death penalty because
of the crime charged, do you understand
that?chanrobles virtual law library

Q Are you sure?chanrobles virtual law

library
Accused:chanrobles virtual law library
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Or maybe because you the were
manhandled or maltreated by anyone and
that will just be consideration for you to
plead guilty?chanrobles virtual law
library
Accused:chanrobles virtual law library
No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Were you not manhandled, please let us
see your body?chanrobles virtual law
library
Note:chanrobles virtual law library
(Accused raised his prison uniform or
shirt and showed to the court his body
from
waist
up).chanroblesvirtualawlibrarychanrobles
virtual law library
Accused:chanrobles virtual law library

Accused:chanrobles virtual law library

No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library

Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library

Court:chanrobles virtual law library

Q Did you enter a plea of guilty on your

own voluntary will or without any force
or intimidation from any one or
whatever.chanroblesvirtualawlibrarychan
robles virtual law library
Accused:chanrobles virtual law library
None,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library

You were not maltreated in the jail?

chanrobles virtual law library
Accused:chanrobles virtual law library
No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Please let us see whether you have
bruises so that you will be examined by a
91

physician to the order of the court?

chanrobles virtual law library
Accused:chanrobles virtual law library
No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
If you plead guilty to the crime charged
there will be some effects on your civil
rights but not until the decision will be
affirmed
by
the
Supreme
Court.chanroblesvirtualawlibrarychanrob
les virtual law library
Accused:chanrobles virtual law library
Yes, Your Honor. 11
Again, before the prosecution presented its evidence on July 11, 1994,
the trial judge once more asked appellant if he was sure of his plea.
Fiscal Fama:chanrobles
library

virtual

law

Appearing as the public prosecutor,

ready,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Our first witness is Dr. Tito Doromal,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Atty. Antiquiera:chanrobles virtual law
library
For
the
accused,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Before the court will proceed with the
reception of evidence by the prosecution,
Arnel Alicando, please come here. (At
this juncture, Arnel Alicando, come near
to the court)chanrobles virtual law library
The court is warning you again that this
is reception of evidence by the

prosecution after you plead guilty to the

crime charged at, do you understand?
chanrobles virtual law library
A
Yes.chanroblesvirtualawlibrarychanroble
s virtual law library
Q Do you still affirm and confirm to your
plea of guilty of your rape with
homicide?chanrobles virtual law library
A
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Do you still insist that your plead of
guilty is voluntary without force,
intimidation or whatsoever?chanrobles
virtual law library
A
Yes.chanroblesvirtualawlibrarychanroble
s virtual law library
Q The court is warning you that after
reception of evidence, the imposable
penalty is mandatory death?chanrobles
virtual law library
A
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Despite of that, you still insist of your
plea of guilty?chanrobles virtual law
library
A
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Okey, proceed. 12
It is crystal clear, from the above-quoted portions of the transcript of the
appellant's arraignment that the trial judge made every effort to ascertain
the voluntariness of the plea, and that he repeatedly warned the
defendant of the consequences of his plea. In other words A) The above-quoted proceedings satisfy the requirement of a searching
inquiry.

There is no hard and fast rule requiring judges to conduct their searching
inquiry in the detailed manner suggested by the majority opinion,
although judges should ideally strive to conduct as detailed an inquiry as
would be reasonable under the circumstances. In People v. Dayot 13 we
held that:
A searching inquiry . . . compels the judge to content himself reasonably
that the accused has not been coerced or placed under a state
of duress - and that his guilty plea has not therefore been given
improvidently - other by actual threats of physical harm from malevolent
quarters or simply because of his, the judge's, intimidating robes.
xxx xxx xxxchanrobles virtual law library
While there can be no hard and fast rule as to how a
judge may conduct searching inquiry, as to the number
and character of questions he may put to the accused, or
as to the earnestness with which he may conduct it, since
each case must be measured according to its individual
merit, taking into consideration the age, educational
attainment, and social status of the accused confessing
guilt, among other things, the singular barometer is that
the judge must in all cases, fully convince himself
that: (1) the accused, in pleading guilty, is doing so
voluntarily, and (2) he, in so doing, is truly guilty, and
that there exists a rational basis for a finding of guilt,
based on his testimony. This Court leaves to judges,
considering their training, ample discretion, but expects
them at the same time, that they will be true to their
calling and be worthy ministers of the law.
The purpose of a searching inquiry is to satisfy the judge that the
defendant's plea was entered into voluntarily and that the defendant
understood the consequences of his plea. There is no hard and fast rule,
as the Dayot case states, as to the number and character of the questions
propounded. Judges are not required to go into obsessive detail about the
psychological, educational and sociological background of the accused if
from a reasonable inquiry conducted through a reasonable number of
questions he is fully convinced a searching inquiry has been met. There
is a world of difference between a fastidious attention to detail which
furthers the end of justice and an attention to detail and minutae
bordering on obsessiveness which ultimately obstructs justice and
defeats the purpose of the law. Apropos to this there is B) No evidence that the information was not read in a language or
dialect known to the appellant.
The records in an overwhelming number of criminal cases brought
before us contain informations written in the English language without
any indication, whatsoever, that the same was translated from a language
or dialect known to the defendant. And yet, even in Metro Manila alone,
92

one observes that the bulk of proceedings in our trial courts, including
the process of arraignment, is conducted in the vernacular. On the record
of these cases normally printed in English, courts hardly bother to point
out those sections of the trial conducted in the vernacular and translated
into English. Because of this widespread practice, which the section on
arraignment in the Rules of Court does not proscribe - the presumption
of regularity ought to apply. Otherwise, we should compel ourselves to
review the criminal cases decided by this Court since the imposition of
the 1985 Revised Rules on Criminal Procedure and see whether there
was any indication that the arraignment of these criminal cases were, the
records therein then ought to show, conducted in a language known to
the defendants. The absurdity of this argument by the defense then
becomes apparent, because it would be fairly obvious to all of us that
most of these proceedings were actually conducted in the vernacular, but
the fact was never put on record. In fact, Section 1 (b) of Rule 116 even
states that while the arraignment and plea be made of record failure to
enter (the same) of record shall not affect the validity of the proceedings.
Even the rule on placing the arraignment and plea on record is not
absolute, and I cannot see how we can be too strict about indicating on
record whether proceedings were made in the vernacular in cases where
in fact the proceedings were so conducted. The argument that the
information was not read in the language or dialect known to appellant
merely grasps on straws and ought to be dismissed for being so
inconsequential
as
to
be
bereft
of
merit.chanroblesvirtualawlibrarychanrobles virtual law library
Moreover, it is a matter of common practice that in every court,
especially in the provinces, an interpreter is always at hand to translate to
the parties all questions propounded to them in the language or dialect
known to them. It is also common practice that the transcript of
stenographic notes submitted to the court only reflect the court
proceedings conducted in the English language. While again, the records
do not categorically indicate that the information was read in the
language or dialect known to the defendant or that the questions asked
were mandated in the vernacular or dialect understood by him it is
presumed, as we have actually done in many cases before this, that such
duty was regularly performed in the absence of any evidence to the
contrary. 14 In the face of this common practice, the burden now lies on
the defense to prove the contrary. Under the principle of equal
application of laws, we cannot have varying degrees of fastidiousness in
the enforcement of procedural rules based on the gravity of the penalty.
THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY
NOT IMPROVIDENT
In the case before us, when the appellant pleaded guilty in open court on
June 28, 1994, appellant was clearly assisted by counsel. The court took
pains to repeatedly remind him of the grave consequences of a plea of
guilty, which appellant said he understood. One very such occasion, he

had every opportunity, through his counsel, to ask the court for
clarification.chanroblesvirtualawlibrarychanrobles virtual law library
The trial court, on its own, in fact went out of its way to repeatedly
inform the defendant of the nature of his plea and the implications of the
plea he was making. On July 11, 1994, before the presentation of
evidence for the prosecution, he was once again asked by the court if he
was sure of his plea. At this time, appellant had more than sufficient time
or about thirteen days to reflect on all the possible consequences of his
plea. If indeed it was not voluntarily made during his arraignment, he
had enough time and opportunity with the assistance of his lawyer to
recant or at least express reservations about the same. However, in spite
of several warnings given by the trial court on different occasions,
appellant
stood
pat
with
his
judicial
admission.chanroblesvirtualawlibrarychanrobles virtual law library
Significantly, the records fail to indicate that appellant questioned his
plea of guilty at any stage of the trial. He had the opportunity to crossexamine the witnesses for the prosecution. He did not put up any defense
nor denied the inculpatory testimonies, documents and real evidence
presented against him (in fact, it was appellant himself who directed the
police investigators to the location of the various physical evidence, e.g.
green slippers, earrings 15).chanroblesvirtualawlibrarychanrobles virtual
law library
Appellant's silence as to the accusations made against him in open court
from the time of his arraignment and during his entire trial therefore
assumes a great deal of significance in the context of the majority's
insistence that herein appellant's plea of guilty was improvident and
therefore void. In the face of the seriousness of the accusations against
him, his reticence was eloquent. As the Court held in People vs. Pillones:
Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a
quasi- confession. An innocent person will at once naturally and
emphatically repel an accusation of crime, as a matter of selfpreservation and self-defense, and as a precaution against prejudicing
himself. A person's silence, therefore, particularly when it is persistent,
will justify an inference that he is not innocent. (Underhill's Criminal
Evidence, 4th Ed., p. 401.) 16chanrobles virtual law library
The absence of an extrajudicial confession does not detract from the
efficacy or validity of appellant's plea of guilty, it does not affect the
requirement compelling the prosecution to prove the guilt of the accused
and the precise degree of his culpability. No where in the rules does it
state that an extrajudicial confession is a prerequisite for a conviction
based on a plea of guilty. While the constitutional infirmities that
attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea
of guilt made in open court and not on the extrajudicial confession,
which formed but a small aspect of the prosecution's case. An

extrajudicial confession only serves to confirm or substantiate a plea of

guilty entered in open court. As between an extrajudicial confession and
a judicial admission, the latter significantly is given evidentiary weight.
Even assuming the extrajudicial confession in this case could not be
given evidentiary weight because of mistakes committed by authorities
in conducting their custodial investigation and in their gathering
evidence, his plea of guilty on arraignment, his repeated admissions to
the same in spite of repeated warnings of the trial judge of the
consequences of his plea and the presence of ample corroborating
testimony from a credible eyewitness to the crime establish appellant's
guilt beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles
virtual law library
The essence of the plea of guilty in a trial is that the accused admits his
guilt freely, voluntarily and with full knowledge of the consequences and
meaning of his act, and with a clear understanding of the precise nature
of the crime charged in the complaint or information. 17 A plea of guilty,
when formally entered on arraignment is sufficient to sustain a
conviction charged in the information without need of further
proof. 18 This, notwithstanding, (in line with the pronouncement of the
Court in several cases 19) the trial court received evidence to determine
if the appellant erred in admitting his guilt. Independent of such plea,
there was more than sufficient evidence adduced to prove that appellant
indeed committed the acts charged.
THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE
OF THE EXCEPTIONS TO THE EXCLUSIONARY RULE
Objections were vigorously raised by the defense regarding certain
pieces of evidence obtained by law enforcement authorities following
the uncounseled custodial investigation of the accused in the case at
bench. These objections have been thoroughly threshed out and weighed
against the other factual material obtained at trial in order to determine
whether or not, on the balance, the accused's conviction ought to be
sustained, modified in favor of a lesser penalty, or altogether thrown out.
I
shall
discuss
them
in
the
interest
of
thoroughness.chanroblesvirtualawlibrarychanrobles virtual law library
Central to these objections were the pieces of physical evidence
allegedly obtained by law enforcement officers as a result of information
volunteered by the accused during his uncounseled custodial
investigation. Since the information obtained, it has been pointed out,
was taken supposedly in violation of the Constitution, the pieces of
evidence derivatively gathered should have been excluded by the court
below,
following
the
fruit
of
the
poisonous
tree
doctrine.chanroblesvirtualawlibrarychanrobles virtual law library
The 1987 Constitution's exclusionary rules absolutely forbid evidence
obtained from illegal searches and seizures or evidence resulting from
uncounseled custodial investigations of accused individuals. The fruit of
93

the poisonous tree doctrine extends these prohibitions to pieces of

evidence derivatively flowing from illegal searches and seizures or from
admissions made by accused individuals under conditions proscribed by
the Constitution. However, the doctrine is not without its exceptions, and
the evidence in dispute in the instant case falls within those
exceptions.chanroblesvirtualawlibrarychanrobles virtual law library
The discovery of the victim's body near the house of the accused would
have naturally led law enforcement authorities to undertake a more
thorough investigation of the site, particularly in those areas where the
victim was last seen. Assuming local police had enough logistical
capabilities to form two teams to undertake two separate searches, one
for physical evidence and other clues and one for the possible suspects,
the evidence objected to would have been inevitably discovered with a
thorough search of the site. Under the circumstances of this case where
only one search was initially conducted (obviously because of logistical
reasons), primarily for a suspect, it would have logically followed had a
suspect not been found at the time, or, had the accused not made his
voluntary, though uncounselled confession, that a search for evidence
would have been undertaken, under conditions which would have
validated a warrantless search, where the same physical evidence would
have been inevitably discovered. In other words, with or without
appellant's volunteered information, the pieces of evidence objected to the blood-stained pillow, the T-shirt and the victim's earring - would have
fallen into police hands by legal means which would have normally been
undertaken
by
the
authorities
in
any
case.chanroblesvirtualawlibrarychanrobles virtual law library
Courts have generally approved the view that it is not necessary to hold
that all evidence is fruit of the poisonous tree. Under one of the
recognized exceptions, the more appropriate question in such cases is
whether the evidence to which the objection is made would not have
been discovered at all but for the illegality or would have been
discovered anyway by sources or procedures independent of the
illegality. Another exception refuses to treat the doctrine as absolutely
sacred if the evidence in question would have been inevitably discovered
under normal conditions.chanroblesvirtualawlibrarychanrobles virtual
law library
I submit, that under the peculiar circumstances of this case, the evidence
objected to would have been inevitably discovered anyway. In a long
line of cases, courts have recognized that evidence derived
from information obtained illegally is not absolutely inadmissible under
the fruit of the poisonous tree doctrine where it is shown that such
evidence would have been inevitably gained even without the unlawful
act. 20 The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the
poisonous tree for the reason that the information which led to his
confession, though the product of an illegal search would have been
discovered in the absence of such illegality. 21 The Court in Lockridge

vs. Superior Court was of the opinion that where a witness is discovered
as a result of illegal police conduct, his testimony is admissible is he
would have been discovered in the normal course of a normally
conducted investigation. 22These and other recognized limitations to the
fruit of the poisonous tree doctrine do not have the effect of diluting the
effect of our exclusionary rules. Rather, they serve the purpose of the
rule well by maintaining a reasonable balance between the need to deny
evidence come by through the exploitation of an illegality on one hand
and the need to minimize opportunity for the defendant in a criminal
case
to reap an undeserved and socially undesirable
bonanza. 23 Certainly it could not be argued that with nothing in their
hands, the police would not have gone back to the site for a better
inspection.
THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL
COURT'S CONVICTION OF THE ACCUSED WITH MORAL
CERTAINTY
Assuming arguendo the validity of the defense's arguments over the
pieces of evidence recovered by the police in the case at bench abovementioned, a thorough review of the evidence utilized by the trial court
leads us to the conclusion that the defendant's conviction would have
been sustained, in any case, without the pieces of evidence objected
to. 24 Lest we mistake the trees for the forest, a shifting of the pieces of
evidence, and a separation therefrom of the physical evidence objected
to would nevertheless still leave the prosecution with enough legal
evidence to convict the accused with moral certainty. These
include:chanrobles virtual law library
1. The defendant's own repeated admissions, in the presence of counsel
and in open court that he committed the acts charged;chanrobles virtual
law library
2. The essentially uncontradicted testimony of the prosecution's
eyewitness, Luisa Rebada.chanroblesvirtualawlibrarychanrobles virtual
law library
Having discussed the first point, I shall go directly to Rebada's
testimony, which the majority opinion let pass without comment. For a
better perspective of Rebada's testimony, allow me once again to quote
from the transcript:
Q Can you recall where were you on
June 12, 1994, at around 5:30 P.M.?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

Q Where were you?chanrobles virtual

law library
A
I
was
at
home.chanroblesvirtualawlibrarychanrob
les virtual law library
Q Where is your house situated?
chanrobles virtual law library
A Brgy. Rizal, Pala-pala, Zone I, Iloilo
City.chanroblesvirtualawlibrarychanroble
s virtual law library
Q Do you have any neighbor in that
residence of yours at Rizal Pala-pala?
chanrobles virtual law library
A
Yes,
Sir,
Arnel
Alicando.chanroblesvirtualawlibrarychan
robles virtual law library
Q How far is the house of Arnel Alicando
from your house?chanrobles virtual law
library
A One and a half (1 1/2) arm's
length.chanroblesvirtualawlibrarychanro
bles virtual law library
Q On that time at 5:30 P.M. have you
seen Arnel Alicando?chanrobles virtual
law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q Where was Arnel Alicando at that
time?chanrobles virtual law library
A He was upstairs, inside the house of
Romeo
Alicando.chanroblesvirtualawlibrarychan
robles virtual law library
Q What is the relation of Romeo
Alicando to Arnel Alicando if you know?
chanrobles virtual law library
A
Romeo
is
the
uncle
of
Arnel.chanroblesvirtualawlibrarychanrob
les virtual law library
94

Q Did Arnel Alicando have any

companion while he was in the house of
his uncle, Romeo Alicando?chanrobles
virtual law library
A
Khazie
Mae
was
his
companion.chanroblesvirtualawlibrarych
anrobles virtual law library
Q You are referring to Khazie Mae
Penecilla, the victim in this case?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q Aside from them, the two of them,
Arnel Alicando and Khazie Mae
Penecilla, are there any person inside the
house of Romeo Alicando at that time?
chanrobles virtual law library
A No more, only the two of
them.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q Now, at that precise time at 5:30 of
June 12, 1994, what have you observed if
you observed any in the house of Romeo
Alicando wherein Arnel Alicando and
Khazie Mae Penecilla was at that time?
chanrobles virtual law library
A I saw the child looking out in the
window and I invited her for a yemas
candy, and Arnel Alicando suddenly
closed
the
window.chanroblesvirtualawlibrarychanr
obles virtual law library
Q When Arnel Alicando you said closed
the window, what did you observe after
that if there is any?chanrobles virtual law
library
A
The
child
cried.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q You are referring to the victim, Khazie
Mae Penecilla when you said the child
was crying?chanrobles virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

Q And after that, after the child was

crying, what have you observed at that
time?chanrobles virtual law library

Q What did you do after seeing that?

chanrobles virtual law library

A
And
then
she
squealed.chanroblesvirtualawlibrarychan
robles virtual law library
Q After that, what did you do after
hearing that and she, the child squealed,
what did you do if there was any?
chanrobles virtual law library
A So, I went down from the house to the
house of Romeo Alicando, where I saw
between an opening between the two
slots.
I
went
up
two
steps.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q And then what did you do?chanrobles
virtual law library
A And so, I peeped between the floor and
the door because there was an
opening.chanroblesvirtualawlibrarychanr
obles virtual law library
Q Have you seen anything inside that
house?chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q What have you seen if there is any?
chanrobles virtual law library
A I saw Arnel Alicando who was
naked/nude at that time lying on top of
the child wherein his left hand was
holding
the
neck
of
the
child.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q When you said child, you are referring
to the victim, Khazie Mae Penecilla?
chanrobles virtual law library

A Because I was afraid at that time and I

got nervous, so I went down from that
house and went to my own house and
gathered my .
. .
. .
.
.chanroblesvirtualawlibrary chanrobles
virtual law library
Q When you went to your house, was
there any person inside your house?
chanrobles virtual law library
A
My
friend.chanroblesvirtualawlibrarychanrob
les virtual law library
Q Who is the name of your friend?
chanrobles virtual law library
A
Ricardo
Lagrana
(Compare).chanroblesvirtualawlibrarych
anrobles virtual law library
Q Have you talked to our compare,
Ricardo Lagrana who was in your house?
Have you told about the incident that you
have seen in the house of Romeo
Alicando wherein Arnel Alicando was at
the top of the victim, Khazie Mae
Penecilla, without clothes at all?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q What action did your compare do if
there was any?chanrobles virtual law
library
A When I told the incident to my
compare he also felt nervous and he went
home.chanroblesvirtualawlibrarychanrob
les virtual law library
Q How about on the same day of June
12, 1994, at around 6:00 P.M., where
were you?chanrobles virtual law library
95

A
I
was
inside
the
house.chanroblesvirtualawlibrarychanrob
les virtual law library
Q And you have observed what is
happening in your barangay at that time?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q What have you observed?chanrobles
virtual law library
A The parents of Khazie Mae Penecilla
were
looking
for
her.chanroblesvirtualawlibrarychanrobles
virtual law library

him, what time did the child go down

from
the
house.chanroblesvirtualawlibrarychanrob
les virtual law library

A Khazie Mae Penecilla was found at

around
8:00
A.M.chanroblesvirtualawlibrarychanrobl
es virtual law library

Q Where were you at that time when you

asked Arnel Alicando?chanrobles virtual
law library

Q Of what day?chanrobles virtual law

library

A
I
was
inside
my
house.chanroblesvirtualawlibrarychanrob
les virtual law library
Q Because you are very near neighbor to
each other?chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

Q When you have observed, have you

known that the parents of Khazie Mae
Penecilla were looking for her, it did not
occur to your mind to report the incident
to the parents of Khazie Mae Penecilla
on what you have seen at that time?
chanrobles virtual law library

Q And it is one and a half (1 1/2) arm's

length your house from Arnel Alicando's
house?chanrobles virtual law library

A I did not go out of the house because I

was
afraid
of
Arnel
Alicando.chanroblesvirtualawlibrarychan
robles virtual law library

Q Did Arnel Alicando answer you?

chanrobles virtual law library

Q Have you seen on the same day after

that incident of 5:30 in the evening, have
you seen again Arnel Alicando?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

A He answered, I do not know because I

was
drank
at
that
time.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q How about one June 13, 1994 in the
morning at around 8:00 o'clock, what did
you observe in your barangay?chanrobles
virtual law library

Q Where?chanrobles virtual law library

A
None.chanroblesvirtualawlibrarychanrobl
es virtual law library

A I saw Arnel Alicando inside the house

going
around.chanroblesvirtualawlibrarychanro
bles virtual law library

Q You have not observed anything?

chanrobles virtual law library

Q Did you talk to him?chanrobles virtual

law library
A One June 12, 1994, at 10:45 in the
evening, I told Arnel Alicando and asked

A
None.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q Do you know when the parents of the
victim, Khazie Mae Penecilla found their
daughter?chanrobles virtual law library

A
June
13,
1994.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q Why do you know that this Khazie
Mae Penecilla was only found by their
parents?chanrobles virtual law library
A Because Leopoldo (Torong) Santiago,
when he went down from their house and
answered the call of nature, he found the
child under their house.25
It is well-settled in this jurisdiction that the testimony of a lone witness,
free from signs of impropriety or falsehood, is sufficient to convict an
accused even if uncorroborated. In this case, Rebada's testimony was
positive and straightforward. I see no reason why the same should not be
given the credence and the weight that it deserves, without our ignoring
established principles in the law on evidence. Such factual findings of
the trial court on the issue of credibility of a witness are accorded great
weight and respect on appeal, as it should have been in the instant case,
because the trial court had the every available opportunity to observe the
demeanor of the lone witness during the trial. Her belated reporting of
the incident the next morning, to which the defense urged the lower court
to
accord
great
weight,
is
hardly
out
of
the
ordinary.chanroblesvirtualawlibrarychanrobles virtual law library
Individual reactions are motivated by varied and varying environmental
factors. There is no standard norm of human behavioral response when
one is confronted with a strange, startling or frightful
experience. 26 Fear and self preservation are strong motivating factors. It
is common for people to choose not to get involved when a crime is
committed, otherwise there should only be a few unsolved
crimes. 27 Rebada, in this case, was obviously terrified with what she
saw. Self-preservation and fear of possible reprisals from the appellant
would have initially overwhelmed any desire on her part to reveal what
she had seen during the incident. She tried her best to remain as calm
and casual as possible, and pretend that she did not see anything the
instant she saw Alicando, when she asked appellant what time Khazi
Mae got down from his house following the incident. 28 Given these
factors, it would have been too much to expect Rebada in her mixed state
of dread, fear, revulsion and instinctive self-preservation to harness
96

superhuman reserves of courage to stop appellant when she saw him

in that compromising position. Man's actions and reactions cannot be
stereotyped. 29 Some individuals flee from an adverse stimulus, others
confront it. Upon seeing the dead girl's distraught parents, and
overcoming her fear with some prodding from her husband, Luisa
Rebada was finally driven by conscience to reveal what she knew the
following morning.chanroblesvirtualawlibrarychanrobles virtual law
library
The minor inconsistencies in Rebada's testimony are understandable
under these circumstances. However, it should be stressed here that the
trial court's conclusions were founded principally on the direct, positive
and categorical assertions made by Rebada as regards material events in
the crime. It is worthy to stress, moreover, that Rebada never wavered in
her oral testimony even on intense cross-examination from the defense.
In her affidavit, she declared that she saw Khazi Mae at appellant's
house; that appellant closed the window; and after hearing the child's cry
and squeal, peeped into the opening and saw appellant on top of the
victim. These were the very same declarations she made when she took
the witness stand. While she may have wavered on a minor detail (as to
whether it was the right or the left hand of the appellant which was used
in choking the victim) these should not be sufficient to debunk her
credibility. 30She had no reason to falsely testify against the appellant
and there were no possible motives alleged for her to do so. She is not in
any way related to the Penecillas, and there was no evidence adduced to
show that she harbored any ill-feelings towards the appellant. In a sense,
her credibility is even enhanced by the absence any improper motive. 31

In the first place, witness PO3 Danilo Tan testified that when he arrived
at the Pencilla's house to take a look at the dead body, he looked at Khazi
Mae's underwear and saw that it was bloodied. The underwear was sent
to the NBI Laboratory for examination. Considering, however, the
inadequate facilities of the NBI Laboratory at Iloilo, the underwear was
referred to Manila for examination. Since it will take time for the court
to wait for the results from Manila, the trial court dispensed with it as
this would only serve as corroborating evidence to the fact of rape. 32
Moreover, rape is committed whenever there is penetration, no matter
how slight into the genital organ of the victim. 33 The vaginal and anal
findings of Dr. Tito Doromal revealed that the lacerated wound from the
fourchette up to the dome of the rectum was caused by a forcible entry of
an object. In view of settled jurisprudence to the effect that rape is
committed by the mere touching of the male genital organ on the vagina,
it hardly is relevant whether or not semen or sperm are present or absent.
Absence of emission does not negate rape. Rebada's testimony that she
saw appellant naked on top of the victim when she peeped through an
opening between the floor and the door of appellant's house and the
autopsy report revealing the laceration of the vagina eloquently testify to
the crime committed and its authorship in the case at bench. As correctly
observed by the Solicitor General, the corpus delicti was there for all to
see. The trial court, therefore, did not err in dispensing with the results of
the NBI laboratory examination of Khazi Mae's underwear to determine
the presence of male semen, a fact of little relevance after the rape was
established
by
definitive
legal
evidence.chanroblesvirtualawlibrarychanrobles virtual law library

Together with the direct testimony of the eyewitness, Rebada, there is, I
repeat, sufficient evidence corroborating and unmistakably pointing to
the appellant as the author of the crime. Khazi Mae was last seen in the
company of the appellant. Rebada testified that she saw appellant naked
on top of Khazi Mae. Recovered from the latter's house were Khazi
Mae's green slippers, pair of gold earrings, her dress, bloodied buri mat
and pillow. The fact of shoddy police work in the recovery of these
pieces of evidence does not escape us. But whether on not these pieces
should have been admissible is on hindsight hardly relevant in the face
of ample legally admissible evidence justifying the trial court's guilty
verdict.chanroblesvirtualawlibrarychanrobles virtual law library

Finally, notwithstanding the fact that the proximate cause of death was
asphyxiation by strangulation, it cannot be denied that Khazi Mae was
raped and killed on the same occasion. As we observed in People
v. Yu, 34 unity of thought and action in the criminal purpose of the

As a last resort, appellant would want to drive home the point that rape
was not committed. He argues that 1) while Rebada saw him on top of
Khazi Mae, she did not see him in a push and pull movement 2) the
requested NBI report on the examination of Khazi Mae's underwear to
show the presence or absence of the male semen was not presented; and
3) the autopsy report revealed that the proximate cause of death was
asphyxiation by strangulation.chanroblesvirtualawlibrarychanrobles
virtual law library

Art. 335 of the same Code is hereby amended to read as

follows:chanrobles virtual law library

accused cannot be altered by the circumstances that both the crime of

rape and the crime of murder resulted. The accused had to choke and
strangle the girl at the same time that he was satisfying his lust on her. 35
Based on all of the foregoing, it is clear and inescapable that appellant
committed the heinous crime or Rape with Homicide under Sec. 11 of
R.A. 7659 which provides:

Art. 335. When and how rape is committed. - Rape is

committed by having carnal knowledge of a woman
under any of the following circumstances:
xxx xxx xxxchanrobles virtual law library
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be

death.chanroblesvirtualawlibrarychanrobles virtual law

library
The death penalty shall also be imposed if the crime of
rape is committed with any of the following
circumstances:
xxx xxx xxxchanrobles virtual law library
(4) When the victim is a religious or a child below seven
(7) years old.
xxx xxx xxx
Having thoroughly evaluated the evidence utilized by the trial court in
convicting the accused with the crime of subject to our automatic review,
it is painfully clear - even to those who have reservations about imposing
the death penalty among us - that we have reached the point of moral
certainty necessary to the imposition of the supreme punishment of death
in this case.chanroblesvirtualawlibrarychanrobles virtual law library
Convictions for the crime of rape have been sustained by this Court in an
overwhelming number of cases on uncorroborated evidence given almost
exclusively by the complainant alone. Against this backdrop (of most
cases of rape where reliance is placed solely on the victims allegations)
the trial Court in the case at bench, arrived at its conclusions principally
on the basis of two key pieces of testimonial evidence: 1) the accused's
admission of guilt in not one but two occasions in open court (in the
presence of his lawyer) even after being warned on both occasions by the
judge of all the possible consequences of his admission the accused's
admission of guilt; and 2) the essentially uncontradicted testimony of an
eyewitness to the crime itself. Even with the relatively minor
inconsistencies of the latter's testimony - which the defense spiritedly
tried to magnify - the net effect of the same was to enhance, not
diminish, the testimony of the lone eyewitness because minor
incongruencies are on the whole indicative of honest and unrehearsed
declarations and often amplify the credibility of such
declarations. 36Ordinarily, as stated earlier, convictions for rape have
been obtained on the basis far less evidence. Parenthetically, either one
of these testimonies, standing alone, would have been adequate to obtain
the accused's conviction.chanroblesvirtualawlibrarychanrobles virtual
law library
In fine, let me reiterate my position in People vs. Veneracion, that the
reimposition of the death penalty for specific offenses under Republic
Act 7659 has left our courts with no choice but to impose the penalty for
crimes clearly enumerated in the said law. If a court, after leaving no
stone unturned, finds it necessary to impose the penalty, I believe that it
does not do so as an infallible God exercising a divine right to give or
take away human life, but as a fallible human institution recognizing the
importance of according majesty to laws so indispensable to maintaining
social order. In the instant case, after a thorough and searching review of
97

the evidence and an evaluation of the procedural and constitutional

objections adduced either in support of an acquittal or of imposing a less
severe penalty it should be fairly obvious to us that the trial court
committed no error in finding the accused guilty as charged.
Recognizing our fallible nature, the quantum of evidence necessary to
convict has never been absolute proof beyond any doubt but merely
proof beyond reasonable doubt. The death penalty in the instant case was
clearly imposed in conformity with the mandate of law and the
Constitution.
Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ., concur.
Separate Opinions
KAPUNAN, J., dissenting:chanrobles virtual law library
The civilized mind normally recoils at the idea of taking a man's life by
way of retribution for the commission of a crime. However, every so
often, a crime so dastardly and repulsive comes along that even an
individual usually predisposed towards rehabilitating the hard-core
criminal would no longer wish to suffer in silent rage at society's kidglove treatment of such offender, but would readily opt to exact a
commensurate requital in the form of capital punishment where
circumstances so demand.chanroblesvirtualawlibrarychanrobles virtual
law library
Sociological theory at least since Emile Durkheim (1858-1917) has
posited the idea that setting absolute outer limits on deviance is a
necessary component of group identification and survival. Justice Oliver
Wendell Holmes may have sensed this truth when he wrote, in The
Common Law(1881), "The first requirement of a sound body of law is
that it should correspond with the actual feelings and demands of the
community, whether right or wrong (1938 ed:, p. 41)." 1
Thus, impelled by the alarming upsurge of crime resulting in the loss of
human lives and wanton destruction of property affecting the nation's
efforts towards sustainable development and prosperity while at the same
time undermining the people's faith in the Government, Congress
enacted Republic Act 7659, 2 imposing capital punishment on certain
heinous crimes.chanroblesvirtualawlibrarychanrobles virtual law library
The early Spartans had word for such crimes: haineus, hateful,
abominable, from the Greek prefix haton, denoting acts so hatefully or
shockingly evil. The acts charged in the case at bench belong to this
genre.chanroblesvirtualawlibrarychanrobles virtual law library
A totally innocent child was forever denied the opportunity to enjoy life
beyond the age of four by the gruesome and hideous acts allegedly
committed by the appellant who, according to the prosecution, was not
content merely with satisfying his beastly desires on her, but also
strangled her to death. Whether or not the circumstances of the present
case require the imposition of the death penalty is the ultimate issue

before us. After a thorough review of the facts and the evidence, I am
afraid, I have to dissent from the majority. The legal evidenceavailable to
us overwhelmingly supports the lower court's conclusions. We should
not shirk from our legal duty to impose the death penalty.
I
In the afternoon of June 12, 1994, Romeo Penecilla, father of four-yearold Khazi Mae, was having a drinking spree with Ramil Rodriguez,
Remus Goddi and the appellant at his (Romeo's) house at Barangay
Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody left,
except for the appellant. Appellant was residing at his uncle's house
about five (5) arm's length away from the Penecilla's
house.chanroblesvirtualawlibrarychanrobles virtual law library

An autopsy conducted and Dr. Tito Doromal, the medico-legal officer,

revealed the following findings:
BEAD
&
NECK/THORACOABDOMINAL
REGIONS:chanrobles
virtual law library
1) Contusion, purple in color, 11 x 11.3
cm., in dia., from left and right anterior
neck, down to the medial portion of the
left
and
right
infra-clavicular
area.chanroblesvirtualawlibrarychanroble
s virtual law library

When Romeo Penecilla arrived home at 8:00 that evening, he could not
find Khazi Mae. He and his wife looked for her until 1:00 in the morning
to no avail.chanroblesvirtualawlibrarychanrobles virtual law library

2) Contusion, bluish purple, 5.5 x 6.3

cm., in dia., antero-lateral left chest
wall.chanroblesvirtualawlibrarychanroble
s virtual law library

The next morning, Leopoldo Santiago, a neighbor, got the shock of his
life when, answering the call of nature outside his house, he chanced the
dead body of Khazi Mae. Immediately, the girl's parents were informed.
The
small,
lifeless
body
was
brought
to
their
house.chanroblesvirtualawlibrarychanrobles virtual law library

3) Contusion, bluish in color, 3 in nos., 1,

0.5 & 1.1 cm., in dia., right anteroinferior
chest
wall.chanroblesvirtualawlibrarychanroble
s virtual law library

The matter was reported to the police at once. At this point, Luisa
Rebada, who lived about 1-1/2 arm's length away from the house of
appellant related to the girl's distraught parents what she knew. 3

4) Contusion, purple in color, 4 x 3.2

cm.,
in
dia.,
left
sub-costal
arch.chanroblesvirtualawlibrarychanroble
s virtual law library

Rebada recounted that at about 5:30 of the afternoon before, she saw
Khazi Mae at the window of appellant's house. She called out to her and
offered to buy "yemas," for her. Appellant suddenly closed the window.
Later on, Luisa heard Khazi Mae cry and then squeal. Her curiosity
aroused, she crept two steps up the appellant's house, peeped through an
opening between the floor and the door, and saw appellant naked on top
of Khazi Mae, his right hand choking the girl's neck. Rebada became
frightened and went back to her house to gather her children. She told
her compadre, Ricardo Lagranai who was in her house at that time, of
what she saw. The latter got nervous and left. That evening when she
heard that Khazi Mae's parents were looking for the little child, she
called out from her window and asked appellant what time Khazi Mae
left his house. Appellant replied that he did not know since he was
drunk. 4 With
Luisa
Rebada's
revelation,
appellant
was
arrested.chanroblesvirtualawlibrarychanrobles virtual law library
During the investigation conducted by PO3 Danilo Tan, appellant readily
admitted raping and killing Khazi Mae. 5 The police were able to
recover from appellant's house Khazi Mae's green slippers, a pair of gold
earrings placed on top of a bamboo post, a bloodied buri mat, a pillow
with a blood stain in the middle, and a stained T-shirt owned by
appellant.chanroblesvirtualawlibrarychanrobles virtual law library

5) Contusion, purple in color, 4.5 x 5

cm., in dia., supero-lateral, left iliac crest.
ON OPENING THE SKULL &
THORACO-ABDOMINAL
CAVITIES:chanrobles virtual law library
a)
Fractured,
2nd
cervical
vertebra.chanroblesvirtualawlibrarychanr
obles virtual law library
b)
Fractured,
crecoid
cartilage.chanroblesvirtualawlibrarychanr
obles virtual law library
c) Both lungs, expanded with multiple
petechial
hemorrhages.chanroblesvirtualawlibraryc
hanrobles virtual law library
d) Other internal organs, congested.
EXTREMITIES:chanrobles virtual law
library
98

1) Confluent abrasion, 3 x 2.6 cm., in

dia., posterior aspect, lower 3rd, left
forearm.chanroblesvirtualawlibrarychanr
obles virtual law library

Consequently, an information was filed with the Regional Trial Court of

Iloilo City, Branch 38, docketed as Criminal Case No. 43663, charging
Arnel Alicando with the crime of rape with homicide, committed as
follows:

Third, some prosecution evidence, offered independently of the plea of

guilt of the appellant, were inadmissible, yet were considered by the trial
court in convicting the appellant.chanroblesvirtualawlibrarychanrobles
virtual law library

2) Old wound, 2 x 1.5 cm., in dia.,

posterior
middle
3rd,
left
forearm.chanroblesvirtualawlibrarychanr
obles virtual law library

That on or about the 12th day of June, 1994 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, did
then and there willfully, unlawfully and feloniously and by means of
force, violence and intimidation to wit: by then and there pinning down
one KHAZIE MAE PENECILLA, a minor, four years of age, choking
her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation, fractured
cervical vertebra and lacerations of the vaginal and rectal openings
causing profuse hemorrhages and other injuries which are necessarily
fatal and which were the direct cause of her death
thereafter.chanroblesvirtualawlibrarychanrobles virtual law library

I strongly disagree.

3) Old wound, 1.5 x 1 cm., in dia.,

antero-lateral aspect, middle 3rd, right
forearm.
VAGINAL
FINDINGS/ANAL
FINDINGS:chanrobles
virtual
law
library
a) Lacerated wound, from the fourchette
up
to
the
dome
of
the
rectum.chanroblesvirtualawlibrarychanro
bles virtual law library
b) Hematoma, from the fourchette up to
the
rectum.chanroblesvirtualawlibrarychanro
bles virtual law library

CONTRARY TO LAW. 7chanrobles virtual law library

On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the
Public Attorney's Office (PAO), pleaded guilty to the crime
charged.chanroblesvirtualawlibrarychanrobles virtual law library
The trial court ordered the prosecution to present evidence to prove the
guilt of the accused and the precise degree of his culpability. It likewise
set the case for reception of evidence for the accused, if he wished to. 8

c) Lacerated wound, lateral wall of the

vagina up to the level of the promontory
of the sacrum with a length of 8
centimeters.chanroblesvirtualawlibrarych
anrobles virtual law library

In the course of the trial, the prosecution presented (1) Luisa Rebada; (2)
Dr. Tito Doromal, the medico-legal officer; (3) SPO1 Manuel Artuz, the
exhibit custodian of Iloilo City Police Station; (4) PO3 Danilo Tan; (5)
SPO3 Rollie Luz, police investigators; and (6) Romeo Penecilla, the
victim's father.chanroblesvirtualawlibrarychanrobles virtual law library

d) A cylinder with a diameter of 2 cms.,

easily passes the vaginal and anal
openings.

The defense, for its part, merely presented the autopsy report of Dr. Tito
Doromal to show that the proximate cause of death was asphyxia by
strangulation.chanroblesvirtualawlibrarychanrobles virtual law library

CAUSE OF DEATH:chanrobles virtual

law library

On July 20, 1994, the trial judge rendered a decision imposing the death
penalty on Arnel Alicando.chanroblesvirtualawlibrarychanrobles virtual
law library

A)
ASPHYXIA
STRANGULATIONchanrobles
law library

BY
virtual

B) FRACTURED, 2nd CERVICAL

VERTEBRA.chanroblesvirtualawlibraryc
hanrobles virtual law library
C) HEMORRHAGE, 2nd DEGREE TO
LACERATED VAGINAL & RECTAL
OPENINGS. 6

The case is now before us on automatic review. Disagreeing with the

trial court's conviction of the accused for the crime of Rape with
Homicide and the said court's imposition of the death penalty the Court's
majority has decided to overturn the conviction and remand the case to
the trial court on the basis of the following alleged procedural
irregularities:
First, that the arraignment of the appellant is null, and void;
Second, that the plea of guilt made by the appellant is likewise null and
void;

II
THERE WAS SUBSTANTIAL, IF NOT FULL
COMPLIANCE WITH EXISTING RULES ON
ARRAIGNMENT AND PLEA.
A thorough review of the record reveals that there was full compliance
with
existing
rules
on
arraignment
and
plea.chanroblesvirtualawlibrarychanrobles virtual law library
It is plainly obvious from an examination of the appropriate rules and the
record of the case that: 1) there is absolutely nothing on the record which
would warrant a finding the information was not read in the language or
dialect known to the appellant; 2) the rule on arraignment and plea does
not absolutely require that the same be indicated in the record of every
criminal case; 3) Rule 116 Section 1 contains nothing requiring trial
courts to indicate in the record the fact that the information was read in
the language or dialect known to the defendant, even if the same was in
fact
actually
complied
with
by
the
lower
court.chanroblesvirtualawlibrarychanrobles virtual law library
The rule on arraignment, Rule 116 provides the following:
Sec. 1: Arraignment and plea; how made. - (a) The accused must be
arraigned before the court where the complaint or information has been
filed or assigned for trial. The arraignment must be made in open court
by the judge or clerk by furnishing the accused a copy of the complaint
or information with the list of witnesses, reading the same in the
language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecution may, however, call at the trial
witnesses other than those named in the complaint or
information.chanroblesvirtualawlibrarychanrobles virtual law library
(b) The accused must be present at the arraignment and
must personally enter his plea. Both arraignment and
plea shall be made of record, but a failure to enter of
record shall not affect the validity of the
proceedings.chanroblesvirtualawlibrarychanrobles
virtual law library
(c) If the accused refuses to plead, or makes a conditional
plea of guilty, a plea of not guilty shall be entered for
him.
xxx xxx xxxchanrobles virtual law library
99

Sec. 3: Plea of guilty to capital offense; reception of

evidence. When the accused pleads guilty to a capital
offense, the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to
prove his guilt and the precise degree of culpability. the
accused may also present evidence in his behalf.
When an accused is arraigned in connection with a criminal charge, it is
the duty of the court to inform him of its nature and cause so that he may
be able to comprehend the charges against him as well as the
circumstances attendant thereto. When the charge is of a serious nature,
it becomes the imperative duty of the lawyer present not only to assist
the accused during the reading of the information but also to explain to
him the gravity and consequence of his plea. 9
Trial judges are enjoined to refrain from accepting with alacrity the
accused's plea of guilty. While justice demands speedy administration,
judges are duty bound to be extra solicitous in seeing to it that when an
accused pleads guilty, he fully understands the meaning of his plea and
the import of an inevitable conviction. 10
Consequently, three things need to be accomplished after the accused in
a criminal case enters a plea of guilty to a capital offense:chanrobles
virtual law library
(1) the court should conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of the accused's
plea;chanrobles virtual law library
(2) the lower court should require the prosecution to prove the guilt of
the accused and the precise degree of his culpability; andchanrobles
virtual law library
(3) the court should inquire whether or not the accused wishes to present
evidence on his behalf and should allow him to do so if he so desires. A
judge who fails to observe this requirement commits a grave abuse of
discretion.chanroblesvirtualawlibrarychanrobles virtual law library
These requirements have been complied with in this case, which the
following pertinent portions of the appellant's arraignment, quoted from
the record support:
Prosecutor Edwin Fama -chanrobles
virtual law library
Appearing
as
public
prosecutor.chanroblesvirtualawlibrarycha
nrobles virtual law library
Atty. Rogelio Antiquiera -chanrobles
virtual law library

For the accused, Your Honor. Ready for

arraignment.chanroblesvirtualawlibraryc
hanrobles virtual law library

Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library

Interpreter:chanrobles virtual law library

(Reading the information to the accused
for arraignment and pre-trial.)chanrobles
virtual law library

Q Or maybe because you the were

manhandled or maltreated by anyone and
that will just be consideration for you to
plead guilty?chanrobles virtual law
library

Note:chanrobles virtual law library

Accused:chanrobles virtual law library

(After reading the information to the

accused,
accused
pleads
guilty.)chanrobles virtual law library

No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library

Court:chanrobles virtual law library

Court:chanrobles virtual law library

Question of the court to the

accused.chanroblesvirtualawlibrarychanr
obles virtual law library

Were you not manhandled, please let us

see your body?chanrobles virtual law
library

Q Considering that this is a crime and

under the amended law is a heinous
crime, because of your plea of guilty
without the consent or even against the
discretion of the court, the court will give
you a mandatory death penalty because
of the crime charged, do you understand
that?chanrobles virtual law library

Note:chanrobles virtual law library

Accused:chanrobles virtual law library

Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Did you enter a plea of guilty on your
own voluntary will or without any force
or intimidation from any one or
whatever.chanroblesvirtualawlibrarychan
robles virtual law library
Accused:chanrobles virtual law library
None,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Are you sure?chanrobles virtual law
library
Accused:chanrobles virtual law library

(Accused raised his prison uniform or

shirt and showed to the court his body
from
waist
up).chanroblesvirtualawlibrarychanrobles
virtual law library
Accused:chanrobles virtual law library
No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
You were not maltreated in the jail?
chanrobles virtual law library
Accused:chanrobles virtual law library
No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Please let us see whether you have
bruises so that you will be examined by a
physician to the order of the court?
chanrobles virtual law library
Accused:chanrobles virtual law library
100

No,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library

A
Yes.chanroblesvirtualawlibrarychanroble
s virtual law library

Court:chanrobles virtual law library

Q Do you still affirm and confirm to your

plea of guilty of your rape with
homicide?chanrobles virtual law library

If you plead guilty to the crime charged

there will be some effects on your civil
rights but not until the decision will be
affirmed
by
the
Supreme
Court.chanroblesvirtualawlibrarychanrob
les virtual law library
Accused:chanrobles virtual law library
Yes, Your Honor. 11
Again, before the prosecution presented its evidence on July 11, 1994,
the trial judge once more asked appellant if he was sure of his plea.
Fiscal Fama:chanrobles
library

virtual

law

Appearing as the public prosecutor,

ready,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Our first witness is Dr. Tito Doromal,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Atty. Antiquiera:chanrobles virtual law
library
For
the
accused,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Before the court will proceed with the
reception of evidence by the prosecution,
Arnel Alicando, please come here. (At
this juncture, Arnel Alicando, come near
to the court)chanrobles virtual law library
The court is warning you again that this
is reception of evidence by the
prosecution after you plead guilty to the
crime charged at, do you understand?
chanrobles virtual law library

A
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Do you still insist that your plead of
guilty is voluntary without force,
intimidation or whatsoever?chanrobles
virtual law library
A
Yes.chanroblesvirtualawlibrarychanroble
s virtual law library
Q The court is warning you that after
reception of evidence, the imposable
penalty is mandatory death?chanrobles
virtual law library
A
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Despite of that, you still insist of your
plea of guilty?chanrobles virtual law
library
A
Yes,
Your
Honor.chanroblesvirtualawlibrarychanro
bles virtual law library
Court:chanrobles virtual law library
Okey, proceed. 12
It is crystal clear, from the above-quoted portions of the transcript of the
appellant's arraignment that the trial judge made every effort to ascertain
the voluntariness of the plea, and that he repeatedly warned the
defendant of the consequences of his plea. In other words A) The above-quoted proceedings satisfy the requirement of a searching
inquiry.
There is no hard and fast rule requiring judges to conduct their searching
inquiry in the detailed manner suggested by the majority opinion,
although judges should ideally strive to conduct as detailed an inquiry as

would be reasonable under the circumstances. In People v. Dayot 13 we

held that:
A searching inquiry . . . compels the judge to content himself reasonably
that the accused has not been coerced or placed under a state
of duress - and that his guilty plea has not therefore been given
improvidently - other by actual threats of physical harm from malevolent
quarters or simply because of his, the judge's, intimidating robes.
xxx xxx xxxchanrobles virtual law library
While there can be no hard and fast rule as to how a
judge may conduct searching inquiry, as to the number
and character of questions he may put to the accused, or
as to the earnestness with which he may conduct it, since
each case must be measured according to its individual
merit, taking into consideration the age, educational
attainment, and social status of the accused confessing
guilt, among other things, the singular barometer is that
the judge must in all cases, fully convince himself
that: (1) the accused, in pleading guilty, is doing so
voluntarily, and (2) he, in so doing, is truly guilty, and
that there exists a rational basis for a finding of guilt,
based on his testimony. This Court leaves to judges,
considering their training, ample discretion, but expects
them at the same time, that they will be true to their
calling and be worthy ministers of the law.
The purpose of a searching inquiry is to satisfy the judge that the
defendant's plea was entered into voluntarily and that the defendant
understood the consequences of his plea. There is no hard and fast rule,
as the Dayot case states, as to the number and character of the questions
propounded. Judges are not required to go into obsessive detail about the
psychological, educational and sociological background of the accused if
from a reasonable inquiry conducted through a reasonable number of
questions he is fully convinced a searching inquiry has been met. There
is a world of difference between a fastidious attention to detail which
furthers the end of justice and an attention to detail and minutae
bordering on obsessiveness which ultimately obstructs justice and
defeats the purpose of the law. Apropos to this there is B) No evidence that the information was not read in a language or
dialect known to the appellant.
The records in an overwhelming number of criminal cases brought
before us contain informations written in the English language without
any indication, whatsoever, that the same was translated from a language
or dialect known to the defendant. And yet, even in Metro Manila alone,
one observes that the bulk of proceedings in our trial courts, including
the process of arraignment, is conducted in the vernacular. On the record
of these cases normally printed in English, courts hardly bother to point
101

out those sections of the trial conducted in the vernacular and translated
into English. Because of this widespread practice, which the section on
arraignment in the Rules of Court does not proscribe - the presumption
of regularity ought to apply. Otherwise, we should compel ourselves to
review the criminal cases decided by this Court since the imposition of
the 1985 Revised Rules on Criminal Procedure and see whether there
was any indication that the arraignment of these criminal cases were, the
records therein then ought to show, conducted in a language known to
the defendants. The absurdity of this argument by the defense then
becomes apparent, because it would be fairly obvious to all of us that
most of these proceedings were actually conducted in the vernacular, but
the fact was never put on record. In fact, Section 1 (b) of Rule 116 even
states that while the arraignment and plea be made of record failure to
enter (the same) of record shall not affect the validity of the proceedings.
Even the rule on placing the arraignment and plea on record is not
absolute, and I cannot see how we can be too strict about indicating on
record whether proceedings were made in the vernacular in cases where
in fact the proceedings were so conducted. The argument that the
information was not read in the language or dialect known to appellant
merely grasps on straws and ought to be dismissed for being so
inconsequential
as
to
be
bereft
of
merit.chanroblesvirtualawlibrarychanrobles virtual law library
Moreover, it is a matter of common practice that in every court,
especially in the provinces, an interpreter is always at hand to translate to
the parties all questions propounded to them in the language or dialect
known to them. It is also common practice that the transcript of
stenographic notes submitted to the court only reflect the court
proceedings conducted in the English language. While again, the records
do not categorically indicate that the information was read in the
language or dialect known to the defendant or that the questions asked
were mandated in the vernacular or dialect understood by him it is
presumed, as we have actually done in many cases before this, that such
duty was regularly performed in the absence of any evidence to the
contrary. 14 In the face of this common practice, the burden now lies on
the defense to prove the contrary. Under the principle of equal
application of laws, we cannot have varying degrees of fastidiousness in
the enforcement of procedural rules based on the gravity of the penalty.
THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY
NOT IMPROVIDENT
In the case before us, when the appellant pleaded guilty in open court on
June 28, 1994, appellant was clearly assisted by counsel. The court took
pains to repeatedly remind him of the grave consequences of a plea of
guilty, which appellant said he understood. One very such occasion, he
had every opportunity, through his counsel, to ask the court for
clarification.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court, on its own, in fact went out of its way to repeatedly
inform the defendant of the nature of his plea and the implications of the
plea he was making. On July 11, 1994, before the presentation of
evidence for the prosecution, he was once again asked by the court if he
was sure of his plea. At this time, appellant had more than sufficient time
or about thirteen days to reflect on all the possible consequences of his
plea. If indeed it was not voluntarily made during his arraignment, he
had enough time and opportunity with the assistance of his lawyer to
recant or at least express reservations about the same. However, in spite
of several warnings given by the trial court on different occasions,
appellant
stood
pat
with
his
judicial
admission.chanroblesvirtualawlibrarychanrobles virtual law library
Significantly, the records fail to indicate that appellant questioned his
plea of guilty at any stage of the trial. He had the opportunity to crossexamine the witnesses for the prosecution. He did not put up any defense
nor denied the inculpatory testimonies, documents and real evidence
presented against him (in fact, it was appellant himself who directed the
police investigators to the location of the various physical evidence, e.g.
green slippers, earrings 15).chanroblesvirtualawlibrarychanrobles virtual
law library
Appellant's silence as to the accusations made against him in open court
from the time of his arraignment and during his entire trial therefore
assumes a great deal of significance in the context of the majority's
insistence that herein appellant's plea of guilty was improvident and
therefore void. In the face of the seriousness of the accusations against
him, his reticence was eloquent. As the Court held in People vs. Pillones:
Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a
quasi- confession. An innocent person will at once naturally and
emphatically repel an accusation of crime, as a matter of selfpreservation and self-defense, and as a precaution against prejudicing
himself. A person's silence, therefore, particularly when it is persistent,
will justify an inference that he is not innocent. (Underhill's Criminal
Evidence, 4th Ed., p. 401.) 16chanrobles virtual law library
The absence of an extrajudicial confession does not detract from the
efficacy or validity of appellant's plea of guilty, it does not affect the
requirement compelling the prosecution to prove the guilt of the accused
and the precise degree of his culpability. No where in the rules does it
state that an extrajudicial confession is a prerequisite for a conviction
based on a plea of guilty. While the constitutional infirmities that
attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea
of guilt made in open court and not on the extrajudicial confession,
which formed but a small aspect of the prosecution's case. An
extrajudicial confession only serves to confirm or substantiate a plea of
guilty entered in open court. As between an extrajudicial confession and

a judicial admission, the latter significantly is given evidentiary weight.

Even assuming the extrajudicial confession in this case could not be
given evidentiary weight because of mistakes committed by authorities
in conducting their custodial investigation and in their gathering
evidence, his plea of guilty on arraignment, his repeated admissions to
the same in spite of repeated warnings of the trial judge of the
consequences of his plea and the presence of ample corroborating
testimony from a credible eyewitness to the crime establish appellant's
guilt beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles
virtual law library
The essence of the plea of guilty in a trial is that the accused admits his
guilt freely, voluntarily and with full knowledge of the consequences and
meaning of his act, and with a clear understanding of the precise nature
of the crime charged in the complaint or information. 17 A plea of guilty,
when formally entered on arraignment is sufficient to sustain a
conviction charged in the information without need of further
proof. 18 This, notwithstanding, (in line with the pronouncement of the
Court in several cases 19) the trial court received evidence to determine
if the appellant erred in admitting his guilt. Independent of such plea,
there was more than sufficient evidence adduced to prove that appellant
indeed committed the acts charged.
THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE
OF THE EXCEPTIONS TO THE EXCLUSIONARY RULE
Objections were vigorously raised by the defense regarding certain
pieces of evidence obtained by law enforcement authorities following
the uncounseled custodial investigation of the accused in the case at
bench. These objections have been thoroughly threshed out and weighed
against the other factual material obtained at trial in order to determine
whether or not, on the balance, the accused's conviction ought to be
sustained, modified in favor of a lesser penalty, or altogether thrown out.
I
shall
discuss
them
in
the
interest
of
thoroughness.chanroblesvirtualawlibrarychanrobles virtual law library
Central to these objections were the pieces of physical evidence
allegedly obtained by law enforcement officers as a result of information
volunteered by the accused during his uncounseled custodial
investigation. Since the information obtained, it has been pointed out,
was taken supposedly in violation of the Constitution, the pieces of
evidence derivatively gathered should have been excluded by the court
below,
following
the
fruit
of
the
poisonous
tree
doctrine.chanroblesvirtualawlibrarychanrobles virtual law library
The 1987 Constitution's exclusionary rules absolutely forbid evidence
obtained from illegal searches and seizures or evidence resulting from
uncounseled custodial investigations of accused individuals. The fruit of
the poisonous tree doctrine extends these prohibitions to pieces of
evidence derivatively flowing from illegal searches and seizures or from
102

admissions made by accused individuals under conditions proscribed by

the Constitution. However, the doctrine is not without its exceptions, and
the evidence in dispute in the instant case falls within those
exceptions.chanroblesvirtualawlibrarychanrobles virtual law library
The discovery of the victim's body near the house of the accused would
have naturally led law enforcement authorities to undertake a more
thorough investigation of the site, particularly in those areas where the
victim was last seen. Assuming local police had enough logistical
capabilities to form two teams to undertake two separate searches, one
for physical evidence and other clues and one for the possible suspects,
the evidence objected to would have been inevitably discovered with a
thorough search of the site. Under the circumstances of this case where
only one search was initially conducted (obviously because of logistical
reasons), primarily for a suspect, it would have logically followed had a
suspect not been found at the time, or, had the accused not made his
voluntary, though uncounselled confession, that a search for evidence
would have been undertaken, under conditions which would have
validated a warrantless search, where the same physical evidence would
have been inevitably discovered. In other words, with or without
appellant's volunteered information, the pieces of evidence objected to the blood-stained pillow, the T-shirt and the victim's earring - would have
fallen into police hands by legal means which would have normally been
undertaken
by
the
authorities
in
any
case.chanroblesvirtualawlibrarychanrobles virtual law library
Courts have generally approved the view that it is not necessary to hold
that all evidence is fruit of the poisonous tree. Under one of the
recognized exceptions, the more appropriate question in such cases is
whether the evidence to which the objection is made would not have
been discovered at all but for the illegality or would have been
discovered anyway by sources or procedures independent of the
illegality. Another exception refuses to treat the doctrine as absolutely
sacred if the evidence in question would have been inevitably discovered
under normal conditions.chanroblesvirtualawlibrarychanrobles virtual
law library
I submit, that under the peculiar circumstances of this case, the evidence
objected to would have been inevitably discovered anyway. In a long
line of cases, courts have recognized that evidence derived
from information obtained illegally is not absolutely inadmissible under
the fruit of the poisonous tree doctrine where it is shown that such
evidence would have been inevitably gained even without the unlawful
act. 20 The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the
poisonous tree for the reason that the information which led to his
confession, though the product of an illegal search would have been
discovered in the absence of such illegality. 21 The Court in Lockridge
vs. Superior Court was of the opinion that where a witness is discovered
as a result of illegal police conduct, his testimony is admissible is he

would have been discovered in the normal course of a normally

conducted investigation. 22These and other recognized limitations to the
fruit of the poisonous tree doctrine do not have the effect of diluting the
effect of our exclusionary rules. Rather, they serve the purpose of the
rule well by maintaining a reasonable balance between the need to deny
evidence come by through the exploitation of an illegality on one hand
and the need to minimize opportunity for the defendant in a criminal
case
to reap an undeserved and socially undesirable
bonanza. 23 Certainly it could not be argued that with nothing in their
hands, the police would not have gone back to the site for a better
inspection.
THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL
COURT'S CONVICTION OF THE ACCUSED WITH MORAL
CERTAINTY
Assuming arguendo the validity of the defense's arguments over the
pieces of evidence recovered by the police in the case at bench abovementioned, a thorough review of the evidence utilized by the trial court
leads us to the conclusion that the defendant's conviction would have
been sustained, in any case, without the pieces of evidence objected
to. 24 Lest we mistake the trees for the forest, a shifting of the pieces of
evidence, and a separation therefrom of the physical evidence objected
to would nevertheless still leave the prosecution with enough legal
evidence to convict the accused with moral certainty. These
include:chanrobles virtual law library
1. The defendant's own repeated admissions, in the presence of counsel
and in open court that he committed the acts charged;chanrobles virtual
law library
2. The essentially uncontradicted testimony of the prosecution's
eyewitness, Luisa Rebada.chanroblesvirtualawlibrarychanrobles virtual
law library

A
I
was
at
home.chanroblesvirtualawlibrarychanrob
les virtual law library
Q Where is your house situated?
chanrobles virtual law library
A Brgy. Rizal, Pala-pala, Zone I, Iloilo
City.chanroblesvirtualawlibrarychanroble
s virtual law library
Q Do you have any neighbor in that
residence of yours at Rizal Pala-pala?
chanrobles virtual law library
A
Yes,
Sir,
Arnel
Alicando.chanroblesvirtualawlibrarychan
robles virtual law library
Q How far is the house of Arnel Alicando
from your house?chanrobles virtual law
library
A One and a half (1 1/2) arm's
length.chanroblesvirtualawlibrarychanro
bles virtual law library
Q On that time at 5:30 P.M. have you
seen Arnel Alicando?chanrobles virtual
law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q Where was Arnel Alicando at that
time?chanrobles virtual law library

Having discussed the first point, I shall go directly to Rebada's

testimony, which the majority opinion let pass without comment. For a
better perspective of Rebada's testimony, allow me once again to quote
from the transcript:

A He was upstairs, inside the house of

Romeo
Alicando.chanroblesvirtualawlibrarychan
robles virtual law library

Q Can you recall where were you on

June 12, 1994, at around 5:30 P.M.?
chanrobles virtual law library

Q What is the relation of Romeo

Alicando to Arnel Alicando if you know?
chanrobles virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

A
Romeo
is
the
uncle
of
Arnel.chanroblesvirtualawlibrarychanrob
les virtual law library

Q Where were you?chanrobles virtual

law library

Q Did Arnel Alicando have any

companion while he was in the house of
his uncle, Romeo Alicando?chanrobles
virtual law library
103

A
Khazie
Mae
was
his
companion.chanroblesvirtualawlibrarych
anrobles virtual law library

Q And after that, after the child was

crying, what have you observed at that
time?chanrobles virtual law library

Q You are referring to Khazie Mae

Penecilla, the victim in this case?
chanrobles virtual law library

A
And
then
she
squealed.chanroblesvirtualawlibrarychan
robles virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

Q After that, what did you do after

hearing that and she, the child squealed,
what did you do if there was any?
chanrobles virtual law library

Q Aside from them, the two of them,

Arnel Alicando and Khazie Mae
Penecilla, are there any person inside the
house of Romeo Alicando at that time?
chanrobles virtual law library
A No more, only the two of
them.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q Now, at that precise time at 5:30 of
June 12, 1994, what have you observed if
you observed any in the house of Romeo
Alicando wherein Arnel Alicando and
Khazie Mae Penecilla was at that time?
chanrobles virtual law library
A I saw the child looking out in the
window and I invited her for a yemas
candy, and Arnel Alicando suddenly
closed
the
window.chanroblesvirtualawlibrarychanr
obles virtual law library
Q When Arnel Alicando you said closed
the window, what did you observe after
that if there is any?chanrobles virtual law
library

A So, I went down from the house to the

house of Romeo Alicando, where I saw
between an opening between the two
slots.
I
went
up
two
steps.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q And then what did you do?chanrobles
virtual law library
A And so, I peeped between the floor and
the door because there was an
opening.chanroblesvirtualawlibrarychanr
obles virtual law library
Q Have you seen anything inside that
house?chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q What have you seen if there is any?
chanrobles virtual law library

A
The
child
cried.chanroblesvirtualawlibrarychanrobl
es virtual law library

A I saw Arnel Alicando who was

naked/nude at that time lying on top of
the child wherein his left hand was
holding
the
neck
of
the
child.chanroblesvirtualawlibrarychanrobl
es virtual law library

Q You are referring to the victim, Khazie

Mae Penecilla when you said the child
was crying?chanrobles virtual law library

Q When you said child, you are referring

to the victim, Khazie Mae Penecilla?
chanrobles virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

Q What did you do after seeing that?

chanrobles virtual law library
A Because I was afraid at that time and I
got nervous, so I went down from that
house and went to my own house and
gathered my .
. .
. .
.
.chanroblesvirtualawlibrary chanrobles
virtual law library
Q When you went to your house, was
there any person inside your house?
chanrobles virtual law library
A
My
friend.chanroblesvirtualawlibrarychanrob
les virtual law library
Q Who is the name of your friend?
chanrobles virtual law library
A
Ricardo
Lagrana
(Compare).chanroblesvirtualawlibrarych
anrobles virtual law library
Q Have you talked to our compare,
Ricardo Lagrana who was in your house?
Have you told about the incident that you
have seen in the house of Romeo
Alicando wherein Arnel Alicando was at
the top of the victim, Khazie Mae
Penecilla, without clothes at all?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q What action did your compare do if
there was any?chanrobles virtual law
library
A When I told the incident to my
compare he also felt nervous and he went
home.chanroblesvirtualawlibrarychanrob
les virtual law library
Q How about on the same day of June
12, 1994, at around 6:00 P.M., where
were you?chanrobles virtual law library
A
I
was
inside
the
house.chanroblesvirtualawlibrarychanrob
les virtual law library
104

Q And you have observed what is

happening in your barangay at that time?
chanrobles virtual law library

Q Where were you at that time when you

asked Arnel Alicando?chanrobles virtual
law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

A
I
was
inside
my
house.chanroblesvirtualawlibrarychanrob
les virtual law library

Q What have you observed?chanrobles

virtual law library

Q Because you are very near neighbor to

each other?chanrobles virtual law library

A The parents of Khazie Mae Penecilla

were
looking
for
her.chanroblesvirtualawlibrarychanrobles
virtual law library

A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library

Q When you have observed, have you

known that the parents of Khazie Mae
Penecilla were looking for her, it did not
occur to your mind to report the incident
to the parents of Khazie Mae Penecilla
on what you have seen at that time?
chanrobles virtual law library
A I did not go out of the house because I
was
afraid
of
Arnel
Alicando.chanroblesvirtualawlibrarychan
robles virtual law library
Q Have you seen on the same day after
that incident of 5:30 in the evening, have
you seen again Arnel Alicando?
chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q Where?chanrobles virtual law library
A I saw Arnel Alicando inside the house
going
around.chanroblesvirtualawlibrarychanro
bles virtual law library
Q Did you talk to him?chanrobles virtual
law library
A One June 12, 1994, at 10:45 in the
evening, I told Arnel Alicando and asked
him, what time did the child go down
from
the
house.chanroblesvirtualawlibrarychanrob
les virtual law library

Q And it is one and a half (1 1/2) arm's

length your house from Arnel Alicando's
house?chanrobles virtual law library
A
Yes,
Sir.chanroblesvirtualawlibrarychanrobles
virtual law library
Q Did Arnel Alicando answer you?
chanrobles virtual law library
A He answered, I do not know because I
was
drank
at
that
time.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q How about one June 13, 1994 in the
morning at around 8:00 o'clock, what did
you observe in your barangay?chanrobles
virtual law library
A
None.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q You have not observed anything?
chanrobles virtual law library
A
None.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q Do you know when the parents of the
victim, Khazie Mae Penecilla found their
daughter?chanrobles virtual law library
A Khazie Mae Penecilla was found at
around
8:00
A.M.chanroblesvirtualawlibrarychanrobl
es virtual law library

Q Of what day?chanrobles virtual law

library
A
June
13,
1994.chanroblesvirtualawlibrarychanrobl
es virtual law library
Q Why do you know that this Khazie
Mae Penecilla was only found by their
parents?chanrobles virtual law library
A Because Leopoldo (Torong) Santiago,
when he went down from their house and
answered the call of nature, he found the
child under their house.25
It is well-settled in this jurisdiction that the testimony of a lone witness,
free from signs of impropriety or falsehood, is sufficient to convict an
accused even if uncorroborated. In this case, Rebada's testimony was
positive and straightforward. I see no reason why the same should not be
given the credence and the weight that it deserves, without our ignoring
established principles in the law on evidence. Such factual findings of
the trial court on the issue of credibility of a witness are accorded great
weight and respect on appeal, as it should have been in the instant case,
because the trial court had the every available opportunity to observe the
demeanor of the lone witness during the trial. Her belated reporting of
the incident the next morning, to which the defense urged the lower court
to
accord
great
weight,
is
hardly
out
of
the
ordinary.chanroblesvirtualawlibrarychanrobles virtual law library
Individual reactions are motivated by varied and varying environmental
factors. There is no standard norm of human behavioral response when
one is confronted with a strange, startling or frightful
experience. 26 Fear and self preservation are strong motivating factors. It
is common for people to choose not to get involved when a crime is
committed, otherwise there should only be a few unsolved
crimes. 27 Rebada, in this case, was obviously terrified with what she
saw. Self-preservation and fear of possible reprisals from the appellant
would have initially overwhelmed any desire on her part to reveal what
she had seen during the incident. She tried her best to remain as calm
and casual as possible, and pretend that she did not see anything the
instant she saw Alicando, when she asked appellant what time Khazi
Mae got down from his house following the incident. 28 Given these
factors, it would have been too much to expect Rebada in her mixed state
of dread, fear, revulsion and instinctive self-preservation to harness
superhuman reserves of courage to stop appellant when she saw him
in that compromising position. Man's actions and reactions cannot be
stereotyped. 29 Some individuals flee from an adverse stimulus, others
confront it. Upon seeing the dead girl's distraught parents, and
overcoming her fear with some prodding from her husband, Luisa
105

Rebada was finally driven by conscience to reveal what she knew the
following morning.chanroblesvirtualawlibrarychanrobles virtual law
library
The minor inconsistencies in Rebada's testimony are understandable
under these circumstances. However, it should be stressed here that the
trial court's conclusions were founded principally on the direct, positive
and categorical assertions made by Rebada as regards material events in
the crime. It is worthy to stress, moreover, that Rebada never wavered in
her oral testimony even on intense cross-examination from the defense.
In her affidavit, she declared that she saw Khazi Mae at appellant's
house; that appellant closed the window; and after hearing the child's cry
and squeal, peeped into the opening and saw appellant on top of the
victim. These were the very same declarations she made when she took
the witness stand. While she may have wavered on a minor detail (as to
whether it was the right or the left hand of the appellant which was used
in choking the victim) these should not be sufficient to debunk her
credibility. 30She had no reason to falsely testify against the appellant
and there were no possible motives alleged for her to do so. She is not in
any way related to the Penecillas, and there was no evidence adduced to
show that she harbored any ill-feelings towards the appellant. In a sense,
her credibility is even enhanced by the absence any improper motive. 31
Together with the direct testimony of the eyewitness, Rebada, there is, I
repeat, sufficient evidence corroborating and unmistakably pointing to
the appellant as the author of the crime. Khazi Mae was last seen in the
company of the appellant. Rebada testified that she saw appellant naked
on top of Khazi Mae. Recovered from the latter's house were Khazi
Mae's green slippers, pair of gold earrings, her dress, bloodied buri mat
and pillow. The fact of shoddy police work in the recovery of these
pieces of evidence does not escape us. But whether on not these pieces
should have been admissible is on hindsight hardly relevant in the face
of ample legally admissible evidence justifying the trial court's guilty
verdict.chanroblesvirtualawlibrarychanrobles virtual law library
As a last resort, appellant would want to drive home the point that rape
was not committed. He argues that 1) while Rebada saw him on top of
Khazi Mae, she did not see him in a push and pull movement 2) the
requested NBI report on the examination of Khazi Mae's underwear to
show the presence or absence of the male semen was not presented; and
3) the autopsy report revealed that the proximate cause of death was
asphyxiation by strangulation.chanroblesvirtualawlibrarychanrobles
virtual law library
In the first place, witness PO3 Danilo Tan testified that when he arrived
at the Pencilla's house to take a look at the dead body, he looked at Khazi
Mae's underwear and saw that it was bloodied. The underwear was sent
to the NBI Laboratory for examination. Considering, however, the
inadequate facilities of the NBI Laboratory at Iloilo, the underwear was
referred to Manila for examination. Since it will take time for the court

to wait for the results from Manila, the trial court dispensed with it as
this would only serve as corroborating evidence to the fact of rape. 32
Moreover, rape is committed whenever there is penetration, no matter
how slight into the genital organ of the victim. 33 The vaginal and anal
findings of Dr. Tito Doromal revealed that the lacerated wound from the
fourchette up to the dome of the rectum was caused by a forcible entry of
an object. In view of settled jurisprudence to the effect that rape is
committed by the mere touching of the male genital organ on the vagina,
it hardly is relevant whether or not semen or sperm are present or absent.
Absence of emission does not negate rape. Rebada's testimony that she
saw appellant naked on top of the victim when she peeped through an
opening between the floor and the door of appellant's house and the
autopsy report revealing the laceration of the vagina eloquently testify to
the crime committed and its authorship in the case at bench. As correctly
observed by the Solicitor General, the corpus delicti was there for all to
see. The trial court, therefore, did not err in dispensing with the results of
the NBI laboratory examination of Khazi Mae's underwear to determine
the presence of male semen, a fact of little relevance after the rape was
established
by
definitive
legal
evidence.chanroblesvirtualawlibrarychanrobles virtual law library
Finally, notwithstanding the fact that the proximate cause of death was
asphyxiation by strangulation, it cannot be denied that Khazi Mae was
raped and killed on the same occasion. As we observed in People
v. Yu, 34 unity of thought and action in the criminal purpose of the
accused cannot be altered by the circumstances that both the crime of
rape and the crime of murder resulted. The accused had to choke and
strangle the girl at the same time that he was satisfying his lust on her. 35
Based on all of the foregoing, it is clear and inescapable that appellant
committed the heinous crime or Rape with Homicide under Sec. 11 of
R.A. 7659 which provides:
Art. 335 of the same Code is hereby amended to read as
follows:chanrobles virtual law library
Art. 335. When and how rape is committed. - Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances:
xxx xxx xxxchanrobles virtual law library
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be
death.chanroblesvirtualawlibrarychanrobles virtual law
library
The death penalty shall also be imposed if the crime of
rape is committed with any of the following
circumstances:

xxx xxx xxxchanrobles virtual law library

(4) When the victim is a religious or a child below seven
(7) years old.
xxx xxx xxx
Having thoroughly evaluated the evidence utilized by the trial court in
convicting the accused with the crime of subject to our automatic review,
it is painfully clear - even to those who have reservations about imposing
the death penalty among us - that we have reached the point of moral
certainty necessary to the imposition of the supreme punishment of death
in this case.chanroblesvirtualawlibrarychanrobles virtual law library
Convictions for the crime of rape have been sustained by this Court in an
overwhelming number of cases on uncorroborated evidence given almost
exclusively by the complainant alone. Against this backdrop (of most
cases of rape where reliance is placed solely on the victims allegations)
the trial Court in the case at bench, arrived at its conclusions principally
on the basis of two key pieces of testimonial evidence: 1) the accused's
admission of guilt in not one but two occasions in open court (in the
presence of his lawyer) even after being warned on both occasions by the
judge of all the possible consequences of his admission the accused's
admission of guilt; and 2) the essentially uncontradicted testimony of an
eyewitness to the crime itself. Even with the relatively minor
inconsistencies of the latter's testimony - which the defense spiritedly
tried to magnify - the net effect of the same was to enhance, not
diminish, the testimony of the lone eyewitness because minor
incongruencies are on the whole indicative of honest and unrehearsed
declarations and often amplify the credibility of such
declarations. 36Ordinarily, as stated earlier, convictions for rape have
been obtained on the basis far less evidence. Parenthetically, either one
of these testimonies, standing alone, would have been adequate to obtain
the accused's conviction.chanroblesvirtualawlibrarychanrobles virtual
law library
In fine, let me reiterate my position in People vs. Veneracion, that the
reimposition of the death penalty for specific offenses under Republic
Act 7659 has left our courts with no choice but to impose the penalty for
crimes clearly enumerated in the said law. If a court, after leaving no
stone unturned, finds it necessary to impose the penalty, I believe that it
does not do so as an infallible God exercising a divine right to give or
take away human life, but as a fallible human institution recognizing the
importance of according majesty to laws so indispensable to maintaining
social order. In the instant case, after a thorough and searching review of
the evidence and an evaluation of the procedural and constitutional
objections adduced either in support of an acquittal or of imposing a less
severe penalty it should be fairly obvious to us that the trial court
committed no error in finding the accused guilty as charged.
Recognizing our fallible nature, the quantum of evidence necessary to
convict has never been absolute proof beyond any doubt but merely
106

proof beyond reasonable doubt. The death penalty in the instant case was
clearly imposed in conformity with the mandate of law and the
Constitution.

20 Del Carmen, Criminal Procedure, Law and Practice, 3rd Ed., pp. 6465.chanrobles virtual law library

xxx xxx xxx

Q: When you invited him to go with you to the Police Station and when
you arrived there,what did you do?

Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ., concur.

21 G.R. No. 100910, July 25, 1994, 234 SCRA 407.chanrobles virtual
law library

Endnotes:

22 Ibid, p. 416.chanrobles virtual law library

A: I let the witness identify the suspect and the witness pointed to
him.chanrobles virtual law library

1 Criminal Case No. 43663, RTC of Iloilo City, Br. 38.chanrobles virtual
law library

23 TSN, July 12, 1994, p. 28.chanrobles virtual law library

Pros. Fama:

24 No. L-31008, January 10, 1971, 37 SCRA 445.chanrobles virtual law

library

Q: Do you know who is that witness?

2 Order of June 28, 1994.chanrobles virtual law library

3 Section 14 (2) of Article III of the Constitution.chanrobles virtual law
library
4 See section 6, Article XIV of the Constitution.chanrobles virtual law
library
5 See section 7, Article XIV of the Constitution.chanrobles virtual law
library
6 TSN, June 28, 1994, p. 2.chanrobles virtual law library
7 Section 1, Article III of the Constitution provides: "No person shall be
deprived of life, liberty, or property without due process of law . . . "
8 TSN, June 28, 1994, pp. 2-3.chanrobles virtual law library
9 TSN, July 11, 1994, p. 2.chanrobles virtual law library
10 24 SCRA 798, [1968].chanrobles virtual law library
11 E.g., People vs. Abrea, 112 SCRA 83 [1982]; People vs. Alibasa, 118
SCRA 183 [1982]; People vs. Havana, 1199 SCRA 805; People vs.
Petalcorin, et al., 180.chanrobles virtual law library
12 In re: Winship, 397, US358, 90 S.ct., 1068, 25 L. Ed. 2d 368
[1970].chanrobles virtual law library
13 Decision, page 7; Records, p. 96.chanrobles virtual law library
14 Exh. "J".chanrobles virtual law library
15 Exh. "F".chanrobles virtual law library
16 TSN, July 12, 1994, pp. 18-21.chanrobles virtual law library
17 TSN, July 12, 1994, pp. 14-17.chanrobles virtual law library
18 308 US 388, 60 S.Ct. 266, 84 L ed. 307 [1939].chanrobles virtual law
library
19 The genesis of the doctrine was laid down in Silverthorne Lumber
Co. v. US, 251 US 385, 40 S.Ct. 182, 64 L. Ed. 319 [1920].chanrobles
virtual law library

KAPUNAN, J., dissenting opinion:

A: Yes, sir.chanrobles virtual law library

Q: Who is that witness?

1 The Oxford Companion to the Supreme Court of the United States, pp.
125-126, 1992 ed.chanrobles virtual law library

A: Luisa Rebada.

2 RA 7659 Enacted on December 13, 1994.chanrobles virtual law library

xxx xxx xxx

An Act to Impose the Death Penalty on Certain Heinous Crimes,

amending for that purpose the Revised Penal Code, as amended, other
special penal laws, and for other purposes.chanrobles virtual law library

Q: After the witness positively identified the suspect what action did you
do?

WHEREAS, the Constitution, specifically Article III, Section 19

paragraph (1) thereof, states "Excessive fines shall not be imposed nor
cruel, degrading or inhuman punishment inflicted. Neither shall death
penalty imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. . . .";
WHEREAS, the crimes punishable by death under this Act are heinous
for being grievous, odious and hateful offenses and which, by reason of
their inherent or manifest wickdness, viciousness, atrocity ad perversity
are repugnant and outrageous to the common standards and norms of
decency and morality in a just, civilized and ordered society;
WHEREAS, due to the alarming upsurge of such crimes which has
resulted not only in the loss of human lives and wanton destruction of
property but has also affected the nation's efforts towards sustainable
economic development and prosperity while at the same time has
undermined the people's faith in the Government and the latter's ability
to maintain peace and order in the country.chanrobles virtual law library
WHEREAS, the Congress, in the interest of justice, public order and the
rule of law, and the need to rationalize and harmonize the penal
sanctions for heinous crimes, finds compelling reasons to impose the
death penalty for said crimes.chanrobles virtual law library
3 TSN, July 12, 1994, pp. 28-32.chanrobles virtual law library
4 TSN, July 11, 1994, pp. 14-19.
Q: After you received that information, what did you do?
A: We invited Arnel Alicando to the headquarters.

A: I immediately arrested him and then placed him on the police

blotter.chanrobles virtual law library
Q: You mean you arrested him at the Super Market at the meat section?
A: Yes, sir, at Rizal-Palapala.chanrobles virtual law library
Q: When you arrested him where did you bring him?
A: I brought him to the Iloilo City Proper Police Station.chanrobles
virtual law library
Q: What did you do there?
A: I entered the matter at the police blotter and I asked him further. I
asked him who raped the child.chanrobles virtual law library
Q: Did the suspect answer?
A: Yes, sir.chanrobles virtual law library
Q: What did he answer?
A: He answered that he was the one.chanrobles virtual law library
Q: Did you ask him what he did with the victim after raping?
A: I further asked him why the child died and he answered that, killed
her. (TSN, July 12, 1994, pp. 11-13.)
6 Records, p. 79.chanrobles virtual law library
7 Rollo, p. 5.chanrobles virtual law library
8 Order dated June 28, 1994; Records, p. 12.chanrobles virtual law
library
107

9 People v. Perete, 1 SCRA 1290; People v. Camay, 152 SCRA 401

(1987).chanrobles virtual law library

27 People v. Lase, 219 SCRA 584 (1993).chanrobles virtual law library

28 TSN, July 11, 1994, p. 17.chanrobles virtual law library

10 People v. Saligan, 54 SCRA 190 (1973); People v. Aguilar, 37 SCRA

115 (1971); People v. Simeon, 47 SCRA 129 (1972).chanrobles virtual
law library

29 People v. Salazar, 221 SCRA 170 (1994).chanrobles virtual law

library

11 TSN, pp. 2-3, June 28, 1994.chanrobles virtual law library

30 People v. Bautista, 147 SCRA 500 (1987); People v. Ancheta, 148

SCRA 178 (1987).chanrobles virtual law library

12 TSN, p. 2, July 11, 1994.chanrobles virtual law library

13 187 SCRA 637 (1990).chanrobles virtual law library
14 People v. Evangelista, 235 SCRA 247 (1994); People v. Vivar, 235
SCRA 257 (1994); People v. de Guzman, 229 SCRA 795
(1994).chanrobles virtual law library
17 People v. Ariola, 100 SCRA 523 (1980); People v. Gabierrez, Jr., 113
SCRA 155 (1982).chanrobles virtual law library
18 People v. Laspardas, 93 SCRA 638 (1979); People v. Formentera, 130
SCRA 114; People v. Gonzaga, 127 SCRA 158 (1984).chanrobles virtual
law library
19 People v. Dayot, 187 SCRA 637 (1890), People v. Camay, 152 SCRA
401 (1987); People v. Domingo, 68 SCRA 50 (1975); People v. Serna,
130 SCRA 550 (1984).chanrobles virtual law library
20 Somer vs. U.S. 138 F2d 790 (1943); Wayne vs. U.S. 318 F2d 205
(1963); Lockridge vs. Superior Court, 402 U.S. 910 (1970).chanrobles
virtual law library
21 U.S. vs. Seohnlein, 399 U.S. 913 (1970).chanrobles virtual law
library
22 See, Lockridge, supra, note 19.chanrobles virtual law library
23 Maguire, How to Unpoison the Fruit - the Fourth Amendment and the
Exclusionary Rule. 55 J Crim Law, Crim and Pol Sci 307
(1964) cited in Spivey, "Fruit of the Poisonous Tree"
Doctrine Excluding Evidence Derived from Information Gained in
Illegal Search. 43 ALR 36, 385.
24 Moreover, it would have been inevitable for police authorities to go
back to the scene of the crime and ultimately discover the evidence, even
without the accused's volunteered information. This "inevitable
discovery" is one of the recognized limitations to the "fruit of the
poisonous tree doctrine." See Crispin Nix v. Robert Anthony Williams,
467 U.S. 431.chanrobles virtual law library
25 TSN, July 11, 1994, pp. 14-18.chanrobles virtual law library
26 People v. Arman, 224 SCRA 37 (1993); People v. Danico, 208 SCRA
472 (1992).chanrobles virtual law library

31 People v. Castor, 216 SCRA 410 (1992); People v. Ladrera, 150

SCRA 113 (1987).chanrobles virtual law library

THIRD DIVISION

32 TSN, July 15, 1994, p. 2.chanrobles virtual law library

34 1 SCRA 199 (1961).chanrobles virtual law library

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

JANUARIO y ROLDAN, EFREN CANAPE y BAYOT, ELISEO
SARITA @ TOTO, EDUARDO SARINOS and SANTIAGO
CID, accused, and RENE JANUARIO Y ROLDAN and EFREN
CANAPE y BAYOT, accused-appellants.

35 Id.chanrobles virtual law library

DECISION

36 People vs. Reyes, G.R. No. 79896, January 12, 1995.

PANGANIBAN, J.:

33 People v. Palicte, 229 SCRA 543 (1994).chanrobles virtual law

library

[G.R. No. 98252.February 7, 1997]

The 1987 Constitution was crafted and ordained at a historic time when
our nation was reeling from ghastly memories of atrocities, excesses and
outright violations of our peoples rights to life, liberty and
property.Hence, our bill of rights was worded to emphasize the sanctity
of human liberty and specifically to protect persons undergoing custodial
investigations from ignorant, overzealous and/or incompetent peace
officers. The Constitution so dearly values freedom and voluntariness
that, inter alia, it unequivocally guarantees a person undergoing
investigation for the commission of an offense not only the services of
counsel, but a lawyer who is not merely (a) competent but also (b)
independent and (c) preferably of his own choice as well.
In the case before us, the main evidence relied upon for the conviction of
appellants were their own extrajudicial confessions which admittedly
were extracted and signed in the presence and with the assistance of a
lawyer who was applying for work in the NBI.Such counsel cannot in
any wise be considered independent because he cannot be expected to
work against the interest of a police agency he was hoping to join, as a
few months later, he in fact was admitted into its work force.For this
violation of their constitutional right to independent counsel, appellants
deserve acquittal.After the exclusion of their tainted confessions, no
sufficient and credible evidence remains in the Courts records to
overturn another constitutional right:the right to be presumed innocent of
any crime until the contrary is proved beyond reasonable doubt.
This is an appeal from the Decision[1] of the Regional Trial Court of
Cavite, Branch XVIII in Tagaytay City, disposing of Criminal Case No.
TG-1392-89, viz.:
WHEREFORE, and premises considered, judgment is hereby rendered
finding accused:
108

(1) RENE JANUARIO Y ROLDAN

and(2) EFREN CANAPE Y BAYOT
GUILTY beyond reasonable doubt of the crime of Violation of Sec. 14
last sentence of R.A. No. 6539, otherwise known as the Anti-Carnapping
Law and as charged against them in the Information and pursuant to the
said law, this Court hereby imposes upon the said accused, the supreme
penalty of Reclusion Perpetua or life imprisonment.
Further, they are ordered to pay jointly and severally, but separately, the
heirs of their victims, namely, Geronimo Malibago and Andrew
Patriarca, Jr., the sums of:
(a)P50,000.00 for moral damages;
(b)P50,000.00 for exemplary damages;
(c)P25,000.00 for actual damages, and to pay the costs of this
proceeding.
There being no evidence to warrant a finding of conviction beyond
reasonable doubt, judgment is hereby rendered ACQUITTING Accused
SANTIAGO CID of the crime charged. Being a detention prisoner, the
City Warden of Tagaytay City is hereby ordered to immediately release
said person from his prison cell, unless he is therein detained for any
other cause. is
SO ORDERED.
The Antecedents
On November 7, 1988, an Information signed by Assistant Provincial
Fiscal Jose M. Velasco, Jr., was filed against accused-appellants Rene
Januario and Efren Canape, and their co-accused Santiago Cid, Eliseo
Sarita @ Toto and Eduardo Sarinos @ Digo charging them with
violation of Republic Act No. 6539 (Anti-Carnapping Law)[2] allegedly
commited as follows:
"That on or about September 4, 1987, at Barangay Bulihan, Municipality
of Silang, Province of Cavite, the above-named accused, together with
Eliseo Sarita @ Toto and Eduardo Sarinos who (sic) still at-large,
conspiring and confederating together and mutually helping one another,
with intent to gain, by means of force, violence and intimidation, did,
then and there, willfully (sic), unlawfully and feloniously, after stabbing
to death the driver Gernonimo (sic) Malibagoand conductor Andrew
Patriarca, take, steal and carry away and carnap, one Isuzu passenger
type jeepney, with plate No. DFB-550, owned by Doris and Victor Wolf,
to their damage and prejudice in the total amount of P124,000.00.
CONTRARY TO LAW."[3]

Arraigned on February 7, 1989, appellants Januario and Canape, assisted

by counsel de oficio, pleaded not guilty.[4] On May 30, 1989, Cid,
assisted by counsel de parte, likewise entered a plea of not guilty.
[5] Sarita and Sarinos remained at large.At the trial, the prosecution
presented the following witnesses:Myrna Temporas, NBI Agent Arlis S.
Vela, Vicente Dilanco Pons, Andrew Patriarca, Sr., Juliana Malibago,
Atty. Magno Toribio, and Atty. Carlos Saunar, documentary and other
evidence tending to prove the following:
Sometime in March 1988,Santiago Cid went to the house of prosecution
witness Vicente Dilanco Pons, a farmer engaged in the buy and sell
business, in Camarines Sur.Cid, Pons' cousin, asked Pons if he wanted to
buy a jeepney. Pons replied that he had no money but that he could help
him find a buyer for the jeepney for the price of P50,000.00.With
Amador Alayan, one of the drivers of his son who was around, Pons
offered to look for a buyer of the jeepney provided that Cid would
entrust the vehicle to them.Cid agreed to the proposal.At that time, Pons
did not know who owned the jeepney, but he eventually offered it for
sale to Myrna Temporas who agreed to the purchase price
of P65,000.00.However, Temporas paid Pons only the amount
of P48,500.00.[6]
Myrna Temporas had a slightly different story.According to her, Pons
said that the jeepney was owned by his niece, Doris Wolf.Pons,
purportedly acting upon the instructions of Doris Wolf, borrowed from
Myrna Temporas the amount of P48,500.00 and used the jeepney as a
collateral.The amount was given to Pons in P10,000.00 cash and the
balance in a check payable to Doris Wolf.The check was encashed as it
was cleared from Myrna Temporas' account.It bore a signature
supposedly of Doris Wolf at its back portion and a second endorsement
by Pons who subsequently deposited it in his account.
On September 11, Temporas asked Pons to secure a special power of
attorney from Doris Wolf.Pons promised to comply in one or two
weeks.But Pons failed to pay the indebtedness.So, Myrna Temporas
repeatedly went to his house in Digmaan, Camarines Sur to collect the
amount borrowed but Pons always promised that he himself would go to
her house to pay.[7]
Inasmuch as Pons also failed to produce a deed of sale covering the
jeepney, Temporas lodged a complaint against him for estafa before the
NBI.[8]Acting on the complaint, the NBI contacted the relatives of the
owner of the jeepney who went to Camarines Sur, identified the jeepney
and informed the NBI that its driver (deceased Geronimo Malibago) and
conductor (deceased Andrew Patriarca, Jr.) had been killed by
carnappers.[9]
Patriarca's widow also filed a complaint with the NBI.Upon
investigation, an NBI team led by Supervising Agent Magno Toribio
found out that the carnapping of the jeepney and the killing of Patriarca
and Malibago were the "handiwork" of a group of four (4) persons

named Rene Januario, Efren Canape, Eliseo Sarita alias Toto, and
Eduardo Sarinos alias Digo.The team also discovered that the jeepney
was disposed of through Cid.[10]
Appellants Januario and Canape, as well as Cid, were arrested in
Camarines Sur.The NBI then invited Pons and Temporas to shed light on
the carnapping incident.The jeepney was recovered in an auto shop with
its engine partly dismantled.Upon being informed by the NBI that the
jeepney had been found, an insurance company brought it back to
Manila.
From the "oral investigation" they conducted at the Naga City NBI office
on March 27, 1988, the team learned that Sarita and Sarinos took
Patriarca and Malibago inside a sugar plantation where presumably they
were killed.Because appellants volunteered that their companions were
their neighbors in Paliparan, Dasmarias, Cavite who could be in Manila
already, the NBI team decided to take down their statements at the NBI
head office in Manila.The team traveled with appellants to Manila,
arriving there at around 1:00 o'clock in the afternoon of March 28, 1988.
At the Taft Avenue head office of the NBI, the team took the statements
of appellants one at a time.They asked Atty. Carlos Saunar, who was
"just around somewhere," to assist appellants during the
investigation.Agent Arlis Vela took the statement of appellant Januario
while Supervising Agent Toribio took that of Canape.The first portion of
the statement, Exhibit C, taken from appellant Januario reads:
"SINUMPAANG SALAYSAY NA IBINIGAY NI RENE JANUARIO Y
ROLDAN SA HARAP NI NBI AGENT ARLIS E. VELA NGAYONG
IKA-28 NG MARSO 1988 SA NBI, NCR, MANILA.
xxx
xxx

xxx

1. TANONG
Mr. RENE JANUARIO ipina-aalam namin sa iyo na
ikaw ay aming inuusig sa salang pagnakaw ng isang jeepney at
pagkapatay sa driver at conductor nito.Gusto naming malaman mo na
ikaw ay hindi maaring pilitin na magbigay ng salaysay at kong (sic)
sakaling magbibigay ka ng salaysay, ano mang sasabihin mo rito ay
pueding (sic) gamitin laban sa iyo sa ano mang caso.Nauunawaan mo ba
ito?
SAGOT
2. T
ito?
S
3.

Naiintiendihan (sic) ko.

Kailangan mo ba ang tulong ng abogado sa pagtatanong na

Magsalaysay (sic) lang ako pag-may abogado ako.

T

May abogado ka ba sa ngayon?

S
Mayroon po si Atty. CARLOS SAUNAR ay nandito para
tulongan (sic) ako.
109

4.
T
Nanunumpa ka na magsasabi ng katotohanan, buong
katotohanan at wala ng iba kungdi katotohanan lamang sa pagtatanong
na ito?
S

Opo.

S
Napansin ko na lang na maneho na ni TOTO Sarita ang jeep na
kanyang pinasibad habang ang driver ay nakatali na rin at ako naman ay
sinabihan ni DIGO na hawakan iyong conductor sa balikat habang
tinutukan ng patalim ni DIGO.Ang conductor ay nagsasalita na siya ay
nasasaktan dahil nakatusok na ang patalim sa kanyang leeg o batok.

5. T
Sabihin mo ang iyong pangalan at iba-ibang bagay tungkol
sa iyong pagkatao?

20. T
Ano ang nangyari matapos na matutukan ang conductor at
driver at habang nagmamaneho si TOTO?

S
RENE JANUARIO Y ROLDAN, 26 taong gulang, binata, isang
(sic) buy and sell hanapbuhay at naninirahan sa Puro Batya, Libmanan,
Camarines Sur.

S
Mula sa lugar na iyon pagkaraan ng ilang minuto ay biglang
iniliko sa isang maliit na lupang kalsada na napapaligiran ng tubo at
talahib at doon ay hininto ang sasakyan.

xxx
xxx
xxx."[11]

21. T
Ano na ang sumonod (sic) na nangyari sa lugar na iyon
matapos na maihinto ang jeep?

According to appellant Januario, two weeks before September 1987, he

was already in the house of appellant Canape in Bgy. Palapala,
Dasmarias, Cavite to procure chicken and "kalawit" for his business.He
also went there because his new friends named Toto Sarita and Digo
Samera (sic), as well as appellant Canape, wanted him to look for a
buyer of a jeep.Appellant Januario asked for a photograph of the jeep to
assist him in making a canvass of buyers in Bicol but he was told that he
would have it later at night because they were then having drinks in the
house of Toto.
After that drinking spree, the group agreed to fetch appellants Januario
and Canape at 4:00 o'clock the following morning.It was Digo Samera
who fetched appellants before they went to the house of Toto
Sarita.Together, they went to GMA town in Cavite.It was around 5:00
o'clock in the morning when they hailed a jeep from the
"looban."Thereafter, the following allegedly transpired:
"18. T

Ano na ang nangyari noong kayo ay sumakay sa jeep?

S
Ako ang naunang sumakay pagtigil noong jeep. Bago maka-alis
ang jeep nagsalita si TOTO SARITA na nasa baba pa kasama sina
EFREN CANAPE at DIGO na `HINTAY ka muna may naiwanan pa
ako.'Sumakay si Digo sa tapat ng conductor na nasa loob ng jeep
samantalang si TOTO ay pumuesto sa bandang kanan sa unahan ng jeep
at si EFREN ay sa bandang kaliwa rin ng jeep tapat ng driver at sabay si
EFREN at TOTO na sumakay sa unahan ng jeep at mabilis na tinulak ni
EFREN ang driver patungo kay TOTO na siyang tumutok, (sic) sa driver
ng isang sandata balisong 29.Habang nangyayari iyon ay tinutukan
naman ni DIGO na nasa loob ng jeep ang conductor na pinasubsub ang
ulo habang tinutukan ng 29.Ang sabi sa akin ni DIGO ay REN igapos
mo ito' at inabutan niya ako ng isang panyong panali.Sa aking
kabiglaanan ako ay napasunod at tinali ko iyong conductor.
19. T
Ano na ang sumunod na nangyari matapos matalian mo ang
conductor?

S
Unang bumaba po ay si TOTO na hawak ang driver pababa at
itinulak ang driver sa may tobohan (sic).Si EFREN ay sumonod
(sic)hanggang sa may gilid ng karsada habang si TOTO ay tuloy sa
tobohan (sic) na dala ang driver.Si DIGO naman ay tinulak ang
conductor hawak-hawak sa buhok at ang sabi naman sa akin ay hawakan
ko ang balikat. Kinuha sa akin ang conductor ni DIGO at dinala sa may
tubuhan (sic) at akin na lang narinig na ang pag-ungol ng conductor
dahil malapit lang iyon sa sasakyan.
22. T
Nakikita mo ba sila DIGO at ang conductor habang siya ay
umuungol?
S

Hindi ko na po nakita kasi nasa tubohan na.

xxx
xxx
xxx."[12]
Appellant Januario described the driver as more than fifty years old, of
medium build, and with gray hair and a fine nose.Upon reaching
Libmanan, they went directly to Santiago Cid with whom appellant
Januario had earlier conferred regarding the sale of the jeep.Appellant
Januario did not know to whom the jeep was sold but he knew that Cid
approached Vicente Pons.The latter gave appellant Januario P1,000 cash
and rice and eggs worth around P600.A second jeep was brought by Toto
and Digo to Roger Abajero.Cid brought both appellants to the house of
Roger.Later, the jeep was impounded at the NBI Naga City office.
Appellant Januario signed and thumbmarked his statement which was
sworn before NBI Executive Director Salvador R. Ranin.It was also
signed by Atty. Carlos Saunar "as counsel."
Appellant Canape's sworn statement, Exhibit I, was taken by Atty.
Magno V. Toribio, a supervising NBI Agent. Quoted in full, the
statement reads:
"SINUMPAANG SALAYSAY NI IBINIGAY NI EFREN CANAPE y
BAYOT KAY AGENTS MAGNO V. TORIBIO AND TOMAS C.
ENRILE, MGA AHENTE NG NBI DITO SA NCR, NBI, MANILA,
NGAYONG IKA 27 NG MARSO 1988.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x

25. T
Noong kayo ay umalis sa tubohan na iyon, nasaan na noon
ang driver at ang conductor?

1.
TANONG
Ginoong EFREN CANAPE y BAYOT, ikaw ay
aming iniimbistigahan ngayon tungkol sa pagkanakaw ng isang Izuzu
(sic) type jitney sa Silang, Cavite at sa pagkamatay ng conductor nito
noong buwan ng Septembyre (sic) 1988.Bago ka namin tanungin aming
ipinaalam sa iyo ang iyong mga karapatan sa ilalim ng Saligang
Batas.Una, ikaw ay may karapatan na huwag magbigay ng salaysay sa
imbistigasyon na ito, at manahimik.Ano mang sabihin mo dito ay
puweding gamitin laban sa iyo sa asunto kriminal o civil.Ikalawa, ikaw
ay may karapatan na kumuha ng iyong abogado upang tulungan ka sa
imbistigasyon na ito.At kung gusto mo pero wala kang pambayad sa
sirbesyon (sic) nito, ikaw ay bibigyan ng NBI ng libre.Matapos mong
malaman ang iyong mga karapatan, ikaw ba ay nakahandang magbigay
ng kusang loob na salaysay?

ANSWER

23. T
Sila TOTO at ang driver nasaan sila habang naririnig mong
umuungol ang conductor?
S

Pumasok po sa tubohan hindi ko na sila makita.

24. T
Ano na ang nangyari matapos na dalhin ni TOTO ang driver
at ni DIGO naman ang conductor sa tobohan (sic)?
S
Mga ilang minuto lang po ay bumalik na sila sa sasakyan at kami
sumakay na at si TOTO ang nagmaneho ng sasakyan at tuloy-tuloy na
kami sa Bikol, sa Libmanan, Camarines Sur.

Wala na po.

26. T
May napansin ka ba kina DIGO at TOTO noong sila ay
sumakay sa jeep galing sa tubuhan (sic)?
S
Humihingal sila po na parang pagod at napansin ko na may dugo
ang kamay ni DIGO at ang damit at pantalon naman ni TOTO ay may
tilamsik (sic) ng dugo.

Opo, sir.

2. T
Kung ganoon sabihin mo ang iyong buong pangalan, tirahan
at iba pang mga bagay-bagay na pweding pagkakakilalanan sa iyong
pagkatao?
S
Ako si EFREN CANAPE y BAYOT, 31 anyos ang idad (sic),
kasal kay AIDA ROLDAN, isang mag-sasaka (sic), nakatapos ng ikalimang baitang sa elemantarya, at sa kasalukuyan ay naninirahan sa Bgy.
Sibuho, Libmanan, Camarines Sur.
110

3.
T
Ikaw ba ay may nalalaman sa pagkanakaw ng isang
Malaguea type jeepney sa Bulihan, Silang, Cavite noong buwan ng
Septyembre 1988?
S

Opo, sir.

4. T
Kung ganoon sabihin mo sa mga imbistigador na ito kung
paano ang buong pangyayari?
S
Kasi nuong (sic) minsan ako ay mapasyal sa Bgy. Crossing, sakop
ng Dasmarias, Cavite noong mga buwan ng Agosto 1987, kami ay
nagkita ng aking kaibigan na si TOTO' SARETA at ang kanyang kasama
na si DIGO (complete name unknown) at ako ay kanyang sinabihan na
humanap ng buyer ng isang jeep.Kaya, ng (sic) ako ay umuwi na ng
Libmanan, Camarines Sur ako ay humananp (sic) ng taong interesado na
bumili ng nasabing jeep, katulung si RENE JANUARIO na taga bayan
ng Libmanan.Ang aming nakitang interesado sa jeep ay si SANTIAGO
CID.Kaya ang aming ginawa ni RENE ay bumalik sa Bgy. Crossing,
Dasmarias, Cavite para ipaalam kina TOTO SARETA na kami ay
nakakuha na ng buyer. Ng gabing yaon na kami ay dumating kami ay
niyaya nina TOTO na mag inuman at habang kami ay nag-iinuman
sinabi ni TOTO na may makukuha na kami na jeep.Mga bandang alas
kuwatro ng madaling araw, kami ay niyaya na nina TOTO na kunin na
ang jeep. Kami ay lumakad na papuntang Bulihan, Silang,
Cavite.Pagdating namin doon, kami ay naghintay ng mga ilang
minuto.Ng (sic) dumaan ang isang jeep na wala pnag (sic) pasahero, ito
ay pinara ni DIGO at kami ay sumakay.Mga ilang minuto naman ang
lumipas, habang ang diyep (sic) ay tumatakbo papuntang Alabang ay
naglabas ng patalim sina TOTO at DIGO at tinutukan ang driver at ang
kundoktor.Tapos kami ni RENE ay sinabihan (sic) din nila na maglabas
ng patalim at tutukan din ang driver at ang kundoktor (sic).Pagdating
namin sa Bgy. Maguyam, sakop din ng Silang, sapilitana (sic) ibinaba
nina TOTO, DIGO at RENE ang driver at ang kundoktor (sic) at dinala
sa loob ng tubuhan.Ako ay naiwan sa loob ng jeep.Hindi naman
natagalan ay lumabas na ang tatlo galing sa loob ng tubuhan, hindi na
kasama ang driver at and kundoktor (sic).Tapos, narining ko kay TOTO
na `ayos na daw'.Ang sunod naming ginawa ay pinatakbo na namin ang
jeep papuntang Libmanan.Pagdating namin sa Libmanan kami ay
dumerretso (sic) kay SANTIAGO CID at ibinigay na namin sa kanya
ang jeep.Ang sabi naman ni SANTIAGO ay dadalhin niya ang jeep kay
VICENTE PONS na taga Libmanan din.
5. T
Alam mo ba ang nangyari sa driver at konduktor (sic) ng
jeep na inagaw niyo?
S
Ang pag-kaalam ko ho sa sabi ni TOTO na ayos na' ang ibig
sabihin ay patay na sila.
6.

Sino naman ang VICENTE PONS na ito?

S
Ang sabi sa amin ni SANTIAGO si VICENTE PONS ay ang
kanyang nakuhang buyer ng jeep.

7. Q
and jeep?
A
8.

Sa pagkaalam mo ba ay talagang binili ni VICENTE PONS

Opo, sir.
T

18. T
Ano pa ang ibang alam mo tungkul (sic) dito sa pangalawang
jeep na ibenenta (sic) nila kay Mr. ABAJERO?
S

Magkano naman ang pagkabili ni VICENTE PONS?

A
Hindi ko po alam kung magkano ang iksaktong halaga, pero ang
presyo sa amin ni SANTIAGO ay P25,000.00.

Wala na ho sir.

19. T
Iyung tungkol sa unang jeep na ibenenta kay Mr. VICENTE
PONS, alam mo ba kung nasaan na iyon ngayon?
S

Hindi ko rin po alam kung saan dinala ni Mr. PONS.

9. T
Nang dalhin ba ninyo ang jeep kay SANTIAGO ay agad
ninyong dinala at pinagbili rin kay VICENTE PONS?

20. T
kakilala?

S
Matagal na ho sir, dahil sa ako ay ipinanganak din sa Dasmarias,
Cavite at doon din lumaki.Sila ho ay aking mga kababayan at matalik
kung mga kaibigan.

Opo, ng araw din na iyon.

10. T
Magkano ba ang paunang bayad, kung mayroon man, na
ibinigay ni VICENTE PONS sa inyo?
A
Ang alam ko ho ay P4,000.00 ang ibinigay ni VICENTE PONS
kay SANTIAGO dahil siya ang kausap nito.
11.
S

Magkano naman ang halagang naparte mo?

Ako ho ay binigyan ni SANTIAGO ng P1,000.00?

12. T
Ito bang pag-pabili ninyo ng jeep kay VICENTE PONS ay
may kasulatan?
S

Wala po.

13. T
Kailan pa ang mga sumunod na bayad na ibinigay sa inyo ni
VICENTE PONS?
S
Hindi ko na ho masyadong matandaan ang mga iksaktong oras na
kanyang pagbayad at kung magkano, basta ang pag-kaalam ko ay mga
tatlong beses lang siyang nag-hulog at iyon ay kanyang ibinibigay kay
SANTIAGO.Si SANTIAGO naman ang siyang nag-bibigay (sic) sa
amin.

Ito bang sina TOTO SARETA at DIGO ay matagal mo nang

21. T
Nung ikaw ba ay sabihan nina TOTO na humanap ng buyer
ng jeep alam mo ba na ang jeep na iyon ay nanakawin lamang?
S

Opo, sir.

22. T
Pansamantala ay wala na muna akong itatanong sa iyo, ikaw
ba ay mayroon pa ibig sabihin?
S

Wala na po, sir. KATAPUSAN NG SALAYSAY.

(Signed and thumbmarked)

EFREN B. CANAPE
Nagsasalaysay
SIGNED IN THE PRESENCE OF:
(Illegible signature) (Illegible signature)

14. T
Ito bang si SANTIAGO CID at si VICENTE PONS ay alam
kung saan at paano ninyo nakuha ang jeep?

SUBSCRIBED AND SWORN TO BEFORE ME this 27th day of March

1988 at NBI, National Capital Region, Manila.I likewise certify that I
have carefully examined the herein affiant and that I am satisfied that he
voluntarily executed his statement and understood the same.

(Signed)

15. T
S
16. T
S

Opo, sir.
Nasaan na ngayon sina TOTO SARETA at DIGO?
Sa Dasmarias, Cavite ho.
Hindi na ba sila napupuntang Libmanan?
Bihira na ho sir. Pumupunta lang ho sila kung kukuha ng pera.

17. T
Sa pagkaalam mo, mayroon pa ba silang ibang jeep na dinala
sa Libmanan?
S
Mayroon pa ho akong nalaman kay SANTIAGO CID na may isa
pang jeep na dinala daw sina TOTO at DIGO sa kanya at kanya namang
ibenenta kay Mr. ROGELIO ABAJERO, na taga Libmanan din.

Atty. ARLIS E. VELA

(By Authority of Rep. Act 157)"[13]
After the investigation, appellants went with the NBI agents in searching
for their companions.[14]
Meanwhile, Andrew Patriarca, Sr. reported the disappearance of his son,
Andrew, Jr., the jeepney and its driver to the police detachment in
Bulihan, Silang, Cavite and the police stations in Silang and Imus,
Cavite.Two weeks after September 4, 1987, the body of 23-year-old
Andrew Patriarca, Jr. was found in a sugarcane plantation in
Maguyam.His head was severed from his body.[15] The body of the
driver, Geronimo Malibago, stepfather of Doris Wolf, the owner of the
111

jeepney,[16] was recovered after the harvest of sugarcane in the

plantation[17] in Maguyam.[18] Malibagos widowidentified his body
from its clothing.[19]
On September 12, 1989, the prosecution formally offered its evidence,
[20] which the court duly admitted.[21] For its part, the defense, through
counsel, manifested its intention to file a demurrer to evidence.However,
because the defense had not yet presented accused Cid, the court on
November 21, 1989, ordered the cancellation of his bailbond and gave
his surety thirty days within which to show cause why judgment against
the bond should not be rendered.The defense counsel, Atty. Jose Claro,
was likewise required to explain why he should not be held in contempt
of court for his failure to file a demurrer to evidence.[22]
For failure of the defense counsel to appear at the scheduled hearing
dates and to file the promised demurrer to evidence, the court on
December 22, 1989, issued an order stating that the "accused may no
longer at this time be allowed to present their Demurrer to Evidence."It
scheduled dates for the presentation of defense evidence and appointed
Atty. Oscar Zaldivar as counsel de oficio for the defendants.[23]
Nevertheless, on December 26, 1989, counsel for the defense Claro
mailed a "demurrer to evidence or motion to dismiss on (sic)
insufficiency of evidence."[24] On January 10, 1990, the trial court
denied the motion finding that the demurrer did not "contain any reason
compelling enough to recall the previous order," disallowing the filing of
said pleading.[25]
On February 8, 1990, upon the manifestation of Atty. Claro that
appellants would no longer present evidence, the trial court issued an
order considering the case terminated as far as appellants were
concerned.However, it granted a "reservation" to present evidence as
regards Cid.The trial court further directed Atty. Claro to present Cid
before the court on March 9, 1990.It ordered the filing of memoranda "as
the case of accused Januario and Canope (sic) is now considered
closed."It set the "partial promulgation of judgment" on March 9, 1990
"insofar as the two (2) accused are concerned."[26]
On March 1, 1990, appellants' counsel filed their memorandum.[27]
On March 9, 1990, the trial court did not make a "partial promulgation of
judgment."Instead, it ordered the "continuation of proceedings for
purposes of rebuttal evidence."[28]
On the same day, the defense presented Santiago Cid as a witness.He
testified that a certain Raul Repe, Toto Sarita and Digo Sarreal
approached him about the sale of the jeepney.He referred them to
Vicente Pons who he thought would buy the vehicle.He knew appellants
were also from Libmanan but did not see them during the transaction for
the sale of the jeepney.[29]

On March 27, 1990, the Court denied defense counsel Claro's motion to
cancel the hearing scheduled for that day.Noting the presence of Atty.
Carlos Saunar, a prosecution witness whose attendance during scheduled
trial dates had been delayed, and citing the "imperatives of justice," the
trial court issued an order directing that the testimony of said witness
should be heard that day.[30] In the absence of the counsel of record for
the defense, the trial court reiterated the appointment of Atty. Oscar
Zaldivar as counsel de oficio.
Atty. Saunar testified that he joined the NBI sometime in May or June
1988.On March 1988, while still in private practice, he was at the NBI
head office handling a client case when Atty. Vela, an NBI agent,
approached him.The latter and Atty. Toribio introduced him to appellants
and Cid.Vela and Toribio told him that the three had verbally confessed
to participation in a crime and that they needed his assistance as they
were about to execute their sworn statements.[31] Saunar agreed to assist
the three suspects and allegedly explained to them the consequences of
their confession.He also supposedly told them individually and in
Tagalog, their constitutional rights, like their rights to be silent and to
counsel and that whatever they would say could be used against them.
[32]
Saunar identified his signature in the sworn statement of appellant
Januario.However, he could no longer recall which of the three accused
was appellant Canape although he admitted that the latter's face was
"familiar."[33] He was certain, however, that he participated in the
taking of appellant Canape's sworn statement on March 28, 1988.He
admitted that his signature does not appear on appellant Canape's sworn
statement but he could "only surmise" that he did not sign the same
sworn statement because either it was not presented to him immediately
after the statement was taken or that it could have been misplaced.[34]
After receiving Saunar's testimony, the trial court asked the prosecution
whetherit was presented as rebuttal testimony.Answering in the positive,
the prosecutor reminded the court that when Saunar could not be
presented as a witness, he had made a reservation to call him as
"additional evidence for the prosecution and/or rebuttal"
testimony.Clarifying, the court said that as against Cid, the testimony
was a principal one but a rebuttal as far as the appellants were
concerned.[35]
On May 11, 1990, the defense manifested that it was closing its case.
The prosecution having waived its right to present "any rebuttal
evidence," the trial court issued an order requiring the filing of the
parties' respective memoranda.[36] On June 27, 1990, the trial court
rendered the herein questioned Decision.[37]

(1)The trial procedure, particularly the presentation and admission of the

testimony of Atty. Carlos Saunar, was irregular and prejudicial to the
appellants; and
(2)The extra-judicial confessions of the appellants are inadmissible in
evidence for having been extracted in violation of their constitutional
right to counsel.
Insisting that his guilt had not been proven beyond reasonable doubt,
appellant Januario contends that the trial court erred in admitting in
evidence his sworn statement before the NBI and the testimony of Atty.
Saunar as rebuttal or additional witness after the prosecution had rested
its case, he (appellant Januario) had filed his memorandum, and the
decision had been scheduled for promulgation.[38]
For his part, appellant Canape also claims that his guilt had not been
proven beyond reasonable doubt.He questions the trial court's having
given "weight and sufficiency" to his extra-judicial confession.[39]
Appellant Januario contends that the trial court erred in allowing the
presentation of Saunar as a witness after the prosecution had closed its
case and offered its documentary evidence.Saunar could not in any guise
be considered as a rebuttal witness simply because there was no defense
evidence to rebut.
The Courts Ruling
The First Issue:Order of Trial
The pertinent provisions of Rule 119 of the Rules of Court state:
"Sec. 3. Order of trial.- The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge, and in the
proper case, the civil liability.
(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional remedy in
the case.
(c) The parties may then respectively present rebutting evidence only,
unless the court, in the furtherance of justice, permits them to present
additional evidence bearing upon the main issue.
(d) Upon admission of the evidence, the cases shall be deemed submitted
unless the court directs the parties to argue orally or to submit
memoranda.

The Issues

(e) However, when the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the order of
trial may be modified accordingly." (Emphasis supplied.)

In their separate briefs filed by their respective counsel (Atty. Jose C.

Claro for Januario and Atty. Florendo C. Medina for Canape), appellants
ascribe basically two errors against the trial court:

The trial procedure as outlined in this rule is ordinarily followed to

insure the orderly conduct of litigations to attain the magisterial
objective of the Rules of Court to protect the parties' substantive rights.
112

[40] However, strict observance of the Rules depend upon the

circumstances obtaining in each case at the discretion of the trial
judge.Thus, as early as 1917, this Court explained:

deprived of normal conditions guaranteeing individual autonomy, an

informed judgment based on the choices given to him by a competent
and independent lawyer.

"x x x. The orderly course of proceedings requires, however, that the

prosecution shall go forward and should present all of its proof in the
first instance; but it is competent for the judge, according to the nature of
the case, to allow a party who has closed his case to introduce further
evidence in rebuttal.This rule, however, depends upon the particular
circumstances of each particular case, and falls within the sound
discretion of the judge, to be exercised or not as he may think
proper."[41]

Thus, the lawyer called to be present during such investigation should be

as far as reasonably possible, the choice of the individual undergoing
questioning.If the lawyer were one furnished in the accused's behalf, it is
important that he should be competent and independent, i.e., that he is
willing to fully safeguard the constitutional rights of the accused, as
distinguished from one who would merely be giving a routine,
peremptory and meaningless recital of the individual's constitutional
rights.In People v. Basay, this Court stressed that an accused's right to be
informed of the right to remain silent and to counsel `contemplates the
transmission of meaningful information rather than just the ceremonial
and perfunctory recitation of an abstract constitutional principle.'

Hence, the court may allow the prosecutor, even after he has rested his
case or even after the defense has moved for dismissal, to present
involuntarily omitted evidence.[42] The primary consideration is
whether the trial court still has jurisdiction over the case.Thus
"The claim that the lower court erred in allowing the prosecuting
attorney to introduce new evidence is devoid of any merit, for while the
prosecution had rested, the trial was not yet terminated and the cause
was still under the control and jurisdiction of the court and the latter, in
the exercise of its discretion, may receive additional evidence.Sec. 3(c),
Rule 119 of the Rules of Court clearly provides that, in the furtherance
of justice, the court may grant either of the parties the right and
opportunity to adduce new additional evidence bearing upon the main
issue in question."[43]
Saunars testimony was admitted in evidence before the trial court
rendered its Decision.Undoubtedly then, the court a quo retained its
jurisdiction even though the prosecution had rested its case.As to
appellants, Saunar was an additional prosecution witness, not a rebuttal
witness, because the defense waived presentation of evidence after the
prosecution had rested its case.[44] Saunar was, therefore, a rebuttal
witness with respect to accused Cid.[45]

Ideally, therefore, a lawyer engaged for an individual facing custodial

investigation (if the latter could not afford one) `should be engaged by
the accused (himself), or by the latter's relative or person authorized by
him to engage an attorney or by the court, upon proper petition of the
accused or person authorized by the accused to file such petition.
Lawyers engaged by the police, whatever testimonials are given as proof
of their probity and supposed independence, are generally suspect, as in
many areas, the relationship between lawyers and law enforcement
authorities can be symbiotic."[46]
We find that Saunar was not the choice of appellant Januario as his
custodial investigation counsel.Thus, NBI Agent Arlis Vela testified:
"Q Now, considering that they were then under your custody, and
under investigation, were they represented by counsel during the time
that you took their statements?

A We requested him, because he was just around, sir."[48] (Emphasis

supplied.)
As regards Saunar's assistance as counsel for appellant
Canape,investigating NBI Agent Magno Toribio testified as follows:
"Q
Now, with regards to your advice that he has a right to
counsel, and to seek assistance of a counsel of his own choice if he does
not have one, and to remain silent, and if he does not have a lawyer, you
will furnish one for him, now what was his answer?
WITNESS:
According to him, he does not need a lawyer, but despite that refusal to
have a lawyer...
COURT:
That is not refusal.That is manifestation that he does not need a
lawyer.He did not refuse.He said, he does not need a lawyer.
WITNESS: (con't.)
Although, he does not need a lawyer, we provided him a lawyer by the
name of Atty. Carlos Saunar, who was present during the investigation,
and who advised him of the consequences of the statements that he will
give, and he did not refuse.
FISCAL VELAZCO:
Q Now, how did you know that Atty. Saunar gave him advice, gave
accused Canape advice?
A

Because we were present.

Yes, sir. They were.

Q Now, when did Atty. Saunar give that advice to accused Canape,
was it before, during, or after the taking of this statement?

Do you recall who was that counsel who represented them?

Before, during, and after the taking of the statement.

The Second Issue:Appellants Right to Counsel

Atty. Carlos Saunar, sir.

Now, may we know from you why Atty. Saunar was present there?

Proof of Saunar's presence during the custodial investigation of

appellants is, however, not a guarantee that appellants' respective
confessions had been taken in accordance with Article III, Section 12 (1)
of the Constitution.This constitutional provision requires that a person
under investigation for the commission of an offense shall have no less
than "competent and independent counsel preferably of his own
choice."Elucidating on this particular constitutional requirement, this
Court has taught:

Q Was he the counsel of their own choice, or was the counsel

furnished by your office?

A
He was present there because he was then applying for the position
of NBI agent.

A Because they were not represented by counsel of their own choice,

we got the service of Atty. Carlos Saunar who helped them.[47]

FISCAL VELAZCO:

It is noteworthy that the modifiers competent and independent were

terms absent in all organic laws previous to the 1987 Constitution.Their
addition in the fundamental law of 1987 was meant to stress the primacy
accorded to the voluntariness of the choice, under the uniquely stressful
conditions of a custodial investigation, by according the accused,

xxx
xxx.
Q

xxx

A I remember, Atty. Claro, sometimes is there, representing another

client.[49]

And Atty. Saunar is connected with the NBI?

A
At that time, he was at the NBI Office. He was just somewhere
around.
Q And it was the NBI who requested Saunar to assist Mr. Rene
Januario in the investigation?

Was he the only lawyer who was present there?

xxx

xxx
xxx.

Now, Atty. Saunar is employed with the NBI office, am I right?

Yes, sir.
113

When was he employed at the NBI office? Tell us the exact date?

COURT:
If you can.
WITNESS:
Maybe in September.
ATTY. CLARO:
19?
A

1988.

Q But he was always frequent in the NBI office because he was to be

employed, is that what you mean?
A

He was applying.

And from where is he?

I think he is from Bicol.

xxx
xxx

xxx.

Q Now, how many times have you requested Atty. Saunar to assist a
person under your investigation in the NBI office, other than this?
A

I cannot remember anymore.

Q You always ask him to assist if there is no lawyer available, or the

person to be investigated has no lawyer?
A

If he is around."[50] (Emphasis supplied.)

Let us for the moment grant arguendo that Saunar's competence as a

lawyer is beyond question.Under the circumstances described by the
prosecution however, he could not have been the independent counsel
solemnly spoken of by our Constitution.He was an applicant for a
position in the NBI and therefore it can never be said that his loyalty
was to the confessants.In fact, he was actually employed by the NBI a
few months after.As regards appellant Januario, Saunar might have
really been around to properly apprise appellant of his constitutional
right as reflected in the written sworn statement itself.
However, the same cannot be said about appellant Canape.Clearly, he
was not properly informed of his constitutional rights.Perfunctorily
informing a confessant of his constitutional rights, asking him if he
wants to avail of the services of counsel and telling him that he could
ask for counsel if he so desires or that one could be provided him at his
request, are simply not in compliance with the constitutional mandate.
[51] In this case, appellant Canape was merely told of his constitutional
rights and posthaste, asked whether he was willing to confess.His

affirmative answer may not, by any means, be interpreted as a waiver of

his right to counsel of his own choice.

A
That was in connection with the vehicle I mentioned earlier, in
connection with the carnapping incident mentioned earlier.

Furthermore, the right of a person under custodial investigation to be

informed of his rights to remain silent and to counsel implies a
correlative obligation on the part of the police investigator to explain
and to contemplate an effective communication that results in an
understanding of what is conveyed.[52] Appellant Canape's sworn
statement, which reads and sounds so lifeless on paper, fails to reflect
compliance with this requirement.Neither does the aforequoted
testimony of NBI Agent Toribio. Bearing in mind that appellant Canape
reached only the fifth grade, the NBI agents should have exerted more
effort in explaining to him his constitutional rights.

Q You invited them in connection with the carnapping because you

want to know from them actually what they know about the carnapping,
am I correct?

Moreover, there is enough reason to doubt whether appellant Canape

was in fact and in truth assisted by counsel.Atty. Saunar affirmed on the
witness stand that he assisted appellants on March 28, 1988.
[53] However, the sworn statement itself reveals that it was taken on
March 27, 1988.No satisfactory explanation was made by the
prosecution on this discrepancy.All that Agent Vela stated was that they
conducted an oral investigation in Naga City on March 27, 1988 and
that investigation at the NBI Manila head office was made in the
afternoon of March 28, 1988.[54]
The law enforcement agents' cavalier disregard of appellants'
constitutional rights is shown not only by their failure to observe Section
12 (1) of Article III of the Constitution.They have likewise forgotten the
third paragraph of Section 12 of the same article which mandates that
an admission of facts related to a crime must be obtained with the
assistance of counsel otherwise it would be inadmissible in evidence
against the person so admitting.[55]

Precisely, that is right."[57]

Apparently attempting to avoid the questions on whether appellants

admitted complicity in the crime, Agent Toribio testified:
"ATTY. CLARO:
When you were conducting an investigation, and you saw me at the NBI
building, Naga City, you were referring to the investigation of Mr.
Canape, am I right?
A

Yes, sir.

Q And that investigation you were conducting was reduced to writing,

and that is now Exhibit `G', am I right?
A

That is not.

Q But you investigated Mr. Canape in Naga City at the NBI building,
am I right, tell the Court?
A
At that time, we were taking the statement of the woman, the
complainant, in the estafa case, and the other witnesses.
COURT:
You mean, at the time you investigated that estafa complaint, that was
the time when you also investigated Canape, is that what you mean?

An admission, which, under Section 26 of Rule 130 of the Rules of

Court, is an "act, declaration or omission of a party as to a relevant
fact" is different from a confession which, in turn, is defined in Section
33 of the same Rule as the "declaration of an accused acknowledging
his guilt of the offense charged, or of any offense necessarily included
therein."Both may be given in evidence against the person admitting or
confessing. In People vs. Lorenzo,[56] the Court explained that in a
confession there is an acknowledgment of guilt while in an admission the
statements of fact by the accused do not directly involve an
acknowledgment of guilt or of the criminal intent to commit the offense
with which the accused is charged.

FISCAL VELAZCO:

Appellants verbally intimated facts relevant to the commission of the

crime to the NBI agents in Naga City.This is shown by the testimony of
NBI Agent Vela that, based on the facts gathered from interviews of
people in that city, they "invited" and questioned appellants, thus:

That is it, sir, Naga City. That is the question.

"Q Now, tell us, what was your purpose in inviting these two (2)
people?

ATTY. CLARO:

No, your Honor.

COURT:
But there is a question of counsel. You better clarify that.
WITNESS:
He was asking me if I had already taken the statement of Canape.
COURT:

WITNESS:
Not yet. We were only asking him.

By him, whom are you referring to:

114

The complainants and the witnesses, sir.

"COURT:

ATTY. ZALDIVAR:

Q
All right. You were with Atty. Vela when you conducted an
investigation to (sic) Mr. Canape, am I right? In Naga City?

There is one thing that he would like to add, `that I talked to the accused
one by one,' you want to add something?

I just want to manifest into the record that they have already confessed;
that the witness has just repeated the word.

WITNESS:

A
And I confirmed with them whether they are confessing to their
crime, and they said yes.In fact, from what I observed, they have already
confessed to the NBI agents.

COURT:

COURT:

FISCAL VELAZCO:

All of them confessed?

Now, did you verify whether that confession was only verbal or in
writing?

Yes, sir.
Q And Mr. Vela at that time, was also conducting an investigation to
(sic) a certain Rene Januario in Naga City, is that right?
A. No. We took the statement in Manila.
COURT:
You took the statement in Manila. How about in Naga, that is the
question of counsel?
A

Naga, no statement yet.

ATTY. CLARO:
Mr. Toribio, because you were with Mr. Vela, Mr. Vela did not conduct
any investigation to (sic) Mr. Januario, one of the accused in this case,
in Naga City? Tell the Court?

Yes, your Honor, because they also told me what happened.

FISCAL VELAZCO:
Now, when they informed you that they intend to confess, now, did you
explain to them, to the accused or to the persons under investigation the
consequences of confessing?
A
Yes, that is basic.I informed them of their rights to remain silent
and to counsel, and whatever they will confess there will be used against
them during the trial of this case.
Q

How about that ultimate consequence of admission?

A
Not yet at that time, because it was useless.The crime was
committed in Silang, Cavite.They will have to be brought to Manila for
the appropriate Judge or Fiscal.

Yes. I told them that if they confess, they will have to go to prison.

And what were their answers?

COURT:

A
Actually, they have already confessed to their crime before I talked
to them.

So, you are claiming that you did not conduct any investigation of
Canape?
A
We conducted an investigation.When we took the statement of the
other witnesses, complainant and witnesses.
COURT:

xxx
xxx.

xxx

ATTY. ZALDIVAR:

Does that satisfy you?

Your Honor, the witness has just answered during the preliminary
question of the Fiscal that at the time his assistance was sought by the
NBI, the accused had in fact already confessed.

ATTY. CLARO:

COURT:

No.

I am now asking him, have you said that?

COURT;

Please clarify the question.

ATTY. ZALDIVAR:

WITNESS: (con't.)

We can review the transcript of stenographic notes.

It is true that we were sometimes talking with those people, but not
investigating them yet."[58] (Emphasissupplied.)

COURT:

Note should also be taken of the fact that according to Atty. Saunar,
when he acceded to be the custodial investigation counsel of appellants,
the latter had already confessed.Thus:

They have already confessed.

What do you mean by that?

A

They were still confessing at that time, your Honor.

But there is an explanation by him.Put that on record, all of them.

A That was only verbal that is why there is a need for the sworn
statement to be taken.That was the time that I was telling them that they
can be put to jail."[59] (Emphasis supplied.)
It is therefore clear that prior to the execution of the sworn statements at
the NBI head office, appellants had already made verbal admissions of
complicity in the crime.Verbal admissions, however, should also be made
with the assistance of counsel.Thus:
"The verbal admissions allegedly made by both appellants of their
participation in the crime, at the time of their arrest and even
before their formal investigation, are inadmissible, both as
violative of their constitutional rights and as hearsay
evidence.These oral admissions, assuming they were in fact made,
constitute uncounselled extrajudicial confessions within the
meaning of Article III, Section 12 of the Constitution."[60]
That appellants indeed admitted participation in the commission of the
crime in Naga City is shown by the fact that the NBI agents brought
them to Manila to facilitate apprehension of the other culpritswho could
be either in Cavite or Manila. Because their uncounselled oral
admissions in Naga City resulted in the execution of their written
confessions in Manila, the latter had become as constitutionally infirm
as the former.In People vs. Alicando,[61] this Court explained the
ramifications of an irregularly counselled confession or admission:
"We have not only constitutionalized the Miranda warnings in our
jurisdiction. We have also adopted the libertarian exclusionary rules
known as the `fruit of the poisonous tree,' a phrase minted by Mr. Justice
Felix Frankfurter in the celebrated case of Nardone v. United States.
According to this rule, once the primary source (the `tree') is shown to
have been unlawfully obtained, any secondary or derivative
evidence (the `fruit') derived from it is also inadmissible.Stated
otherwise, illegally seized evidence is obtained as a direct result of the
illegal act, whereas the `fruit of the poisonous tree' is the indirect
result of the same illegal act.The `fruit of the poisonous tree is at least
once removed from the illegally seized evidence, but is equally
inadmissible.The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because
115

the originally illegally

subsequently obtained."

obtained

evidence taints all

evidence

Appellants might have indeed committed the crime in concert with

Eliseo Sarita and Eduardo Sarinos.However, what could have been their
valuable admissions and confessions as far as the prosecution was
concerned were sullied and rendered inadmissible by the irregular
manner by which the law enforcement agents extracted such admissions
and confessions from appellants.Without such statements, the remaining
prosecution evidence -- consisting mostly of hearsay testimony and
investigation reports -- is sorely inadequate to prove appellants
participation in the crime.

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.[67]

Notably, these law enforcers did not only defy the mandate of Section 12
of the Bill of Rights but, after making "inquiries" from appellants about
the crime, they likewise illegally detained appellants as shown by the
admission of one of the NBI agents that appellants were deprived of
their liberty while in their custody.[62] Appellants were even made to
travel for ten (10) hours[63] from Naga City to Manila just so their
formal confessions could be executed in the latter city.According to NBI
Agent Vela, they "actually arrested" the appellants when the court issued
the warrant for their arrest.[64] The records show however that the NBI
turned appellants over to the Municipal Circuit Trial Court of SilangAmadeo in Cavite only on March 30, 1989.On the same day, the same
court turned them back to the NBI for "detention during pendency of the
case."[65]

WHEREFORE, the questioned Decision of the Regional Trial Court of

Cavite, Branch 18 in Tagaytay City, is hereby REVERSED and SET
ASIDE.Appellants
Rene
Januario
and
Efren
Canape
are ACQUITTED.Let a copy of this Decision be furnished the Director
General, Philippine National Police and the Director, National Bureau
of Investigation in order that Eliseo Sarita and Eduardo Sarinos, who
are still at large, may be apprehended and this time properly
investigated and prosecuted.

Epilogue

Narvasa, C.J. (Chairman), Davide, Jr., Melo and Francisco, JJ., concur.

The accused-appellants are hereby ORDERED RELEASED immediately

unless they are being detained for some other legal cause.
SO ORDERED.

The Court understands the difficulties faced by law enforcement

agencies in apprehending violators of the law especially those involving
syndicates.It sympathizes with the public clamor for the bringing of
criminals before the altar of justice.However, quick solution of crimes
and the consequent apprehension of malefactors are not the end-all and
be-all of law enforcement.Enforcers of the law must follow the procedure
mandated by the Constitution and the law.Otherwise, their efforts would
be meaningless.And their expenses in trying to solve crimes would
constitute needless expenditures of taxpayers money.
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.The
admonition given by this Court to government officers, particularly
those involved in law enforcement and the administration of justice, in
the case of People vs. Cuizon,[66] where NBI agents mishandled a drug
bust operation and in so doing violated the constitutional guarantees
against unlawful arrests and illegal searches and seizures, is again
called for and thus reiterated in the case at bench, to wit:
x x x In the final analysis, we in the administration of
justice would have no right to expect ordinary people to be lawabiding if we do not insist on the full protection of their
116

EN
[G.R.

BANC
No.

134530.

December

4,

Hermogenes Trading in Mendez, Cavite led to the recovery of the said

personal
belongings
of
the
victim.

2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROBERTO

SAMONTAEZ
y
DELA
VEGA, Accused-Appellant.

On January 11, 1996, Roberto Samontaez was formally charged in

court with the crime of rape with homicide, defined and penalized under
Article 335 of the Revised Penal Code, as amended, in an Information
that
reads:chanrob1es
virtual
1aw
library

DECISION

DE LEON, JR., J.:

Before us on automatic review is the Decision 1 of the Regional Trial

Court, Branch 14, of Nasugbu, Batangas dated May 15, 1998 in Criminal
Case No. 1032 convicting the appellant, Roberto V. Samontaez, of the
crime of rape with homicide and sentencing him to suffer the supreme
penalty
of
death.chanrob1es
virtua1
1aw
1ibrary
In the early morning of November 25, 1995, Corazon delas Alas saw her
daughter, eighteen (18) year-old Lolita delas Alas, off to school from
their residence in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas.
That was the last time Corazon had seen her alive because at 8:00
oclock in the evening of the same day Lolitas lifeless and naked body
was found in the middle of a sugar cane plantation in Sitio Ilaya,
Barangay Bunducan, Nasugbu, Batangas. Lolita was apparently raped
before
the
attacker
ended
her
life.
Nobody witnessed the actual commission of the grisly crime. However,
police investigation reveals that Roberto Samontaez was seen at around
6:30 oclock in the evening on November 25, 1995 while he was in the
act of coming out of the sugar cane plantation of Perino Desacola in
Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas near the place
where the dead body of Lolita delas Alas was later found. It also appears
that earlier, at around 5:30 oclock in the afternoon, Roberto passed by
the house of Melecio Mendoza in Sitio Bulanggutan, Barangay
Bunducan and he headed eastward to the direction of the sugar cane
plantation of Desacola. Thirty (30) minutes later, Lolita was also spotted,
and she was likewise heading eastward to her house in Sitio Ilaya. At
around 7:00 oclock in the evening, Roberto returned heading westward
and he passed through the same path along the cane field.
On November 28, 1995, Roberto was fetched by the police authorities of
Nasugbu, Batangas from his workplace at Hermogenes Trading in
Barangay Galicia III, Mendez, Cavite. During the investigation at the
Nasugbu Police Headquarters in Nasugbu, Batangas, Roberto admitted
to the police that the other personal belongings of Lolita delas Alas were
inside his bag that was left at his workplace in Mendez, Cavite. A
follow-up investigation conducted by the Nasugbu police authorities at

That on or about the 26th day of November, 1995, at about 6:30 oclock
in the evening, at Sitio Ilaya, Brgy. Bunducan, Municipality of Nasugbu,
Province of Batangas, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and
intimidation, did then and there wilfully, unlawfully and feloniously
have carnal knowledge of Lolita delas Alas y Andino against her will and
consent and by reason or on occasion of the said rape accused with intent
to kill, wilfully, unlawfully and feloniously strangled the said Lolita
delas Alas y Andino with the use of the latters T-shirt which directly
caused her instantaneous death. Further, the personal properties of Lolita
delas Alas y Andino consisting of a gold ring and a wrist watch in an
undetermined
amount
were
taken
by
the
accused.
Contrary

to

law.

Upon being arraigned on February 1, 1996, Accused Roberto

Samontaez, assisted by counsel de oficio, entered the plea of "Not
guilty"
to
the
Information
in
this
case.
Pre-trial was scheduled and terminated on March 14, 1996. Before trial
on the merits could ensue the accused, through counsel, manifested his
intention of changing his earlier plea of not guilty to that of guilty.
Accordingly, the trial court ordered that the accused be re-arraigned in
Tagalog, a dialect which he understood, and the said accused then
pleaded guilty to the charge of rape with homicide as stated in the instant
information. After being satisfied that the accused entered a voluntary
and informed plea by asking some questions, the trial court required the
prosecution to adduce evidence to prove the guilt of the accused and the
precise degree of his culpability pursuant to Article 116, Section 3 of the
1985
Rules
of
Criminal
Procedure.
3
The evidence of the prosecution shows that on November 26, 1995, the
victim, Lolita delas Alas alias Betia, left their house in Sitio Ilaya,
Barangay Bunducan, Nasugbu, Batangas at around 6:00 oclock in the
morning to attend her classes at Kim Harold Computer School in
Poblacion, Nasugbu, Batangas. She was expected to return home at 5:00
oclock in the afternoon of the same day. Having failed to come home on
time, the victims mother, Corazon delas Alas, decided to meet Lolita in
Barangay Pantalan which was her usual route in going home from
school. Upon her arrival in Barangay Pantalan however, Corazon was
informed that Lolita had already passed by, and that by then she must

have reached their home. Corazon returned to Sitio Ilaya but found that
Lolita was not yet home. Filled with apprehension, Corazon sought the
assistance of her neighbors, Renato Bauyon and Dalmacio Salao, to
locate her daughters whereabouts. At 8:00 oclock in the evening
Corazon fainted upon being informed by Bauyon and Salao that the dead
body of Lolita was found in the sugar cane plantation of Perino
Desacola. The body of her dead daughter was already inside the house
when
she
regained
consciousness.
4
Corazon gave her sworn statement 5 to the police on December 8, 1995
in connection with the rape-slay case of her daughter Lolita delas Alas.
She knew accused-appellant Roberto Samontaez for the reason that he
was a resident of Sitio Balanggutan, Barangay Bunducan, Nasugbu,
Batangas. The death of her daughter was very painful to Corazon and
that she spent about P40,000.00 in connection with her wake and funeral
6
It appears that on November 26, 1995, Carlito Samontaez, who is a first
cousin of both the accused-appellant and the victim, was on his way
home after gathering fodder for his animals when, at a distance of twenty
(20) arms length, he chanced upon Roberto at around 6:30 oclock in the
evening while the latter was coming out of the sugar cane plantation of
Perino Desacola in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas.
Carlito and Roberto were coming from opposite directions. However,
when they came close to two (2) arms length with each other, Carlito
observed that Roberto, who was naked from waist up with his T-shirt
placed on his shoulder, was perspiring, somewhat surprised and looked
pale ("medyo po namumutla"). Carlito greeted Roberto and asked him
where he just came from, but the latter did not answer and left hurriedly.
Carlito dismissed his cousins reaction, thinking that he (Roberto) may
have
been
merely
drunk.
7
After reaching his house, Carlito joined in the search for Lolita upon
learning that she was missing. At 8:00 oclock in the evening, the victim
was found dead in the sugar cane plantation of Perino Desacola in Sitio
Ilaya. Lolita was lying on her stomach, naked and a black T-shirt was
tied
around
her
neck.
8
Another prosecution witness, Melecio Mendoza, who is an uncle of
Roberto Samontaez by affinity, saw Roberto walking eastward to Sitio
Ilaya in Barangay Bunducan at about 5:30 oclock in the afternoon on
November 26, 1995. Melecio also saw Lolita at around 6:00 oclock in
the evening of the same day walking home to Sitio Ilaya. Subsequently,
at 7:00 oclock in the evening, Melecio again saw Roberto passed by his
house, this time heading westward to Sitio Balanggutan in Barangay
Bunducan. Roberto was naked from waist up with his T-shirt placed on
his
shoulder.
9
Melecio joined in the search for Lolita after having been requested by
117

Renato Bauyon. Lolita was totally naked and already dead when they
found her in the sugar cane plantation of Perino Desacola in Sitio Ilaya
which was approximately one hundred (100) meters away from his
house
in
Sitio
Balanggutan.
10
Acting on the report that a dead woman was found in Barangay
Bunducan, Nasugbu, Batangas, SPO2 Buenaventura Masikat and other
police officers of Nasugbu, Batangas, together with Dra. Estela Hizon,
proceeded to the crime scene in Sitio Ilaya, Barangay Bunducan,
Nasugbu, Batangas where the victim, Lolita delas Alas, was found dead
and lying on her stomach totally naked with a black T-shirt tied around
her neck. A panty was stuffed in her anal area. Her hands were stretched
upward
and
her
bra
was
half
removed.
11
Dra. Estela Hizon, M.D., Municipal Health Officer of Nasugbu,
Batangas, conducted a post-mortem examination on the cadaver of Lolita
delas Alas which was already in a state of rigor mortis. Her findings are
contained in her post mortem certification 12 dated November 26, 1995,
thus:chanrob1es
virtual
1aw
library
1.

Contusion

2.

Contused

3.

Presence

around

wounds
of

mark

the

at

the

upper

of

strangulation

left

eye.

and

lower

around

the

lips
neck.

4. Multiple contusions at the anterior aspect of the chest.

5.
Cause

Multiple
of

laceration
death

of

Asphyxia

the
by

hymen.
Strangulation.

Dra. Hizon also prepared an anatomical sketch of the human body 13

showing the location of the injuries indicated in her post-mortem report
and another anatomical sketch showing the hymenal lacerations 14 in the
vaginal canal of the victim. She explained that the contusion on the left
eye, the contused wounds on the upper and lower lips with swelling and
blackish discoloration as well as the multiple contusions at the anterior
aspect of the chest of the victim may have been caused by fist blows.
The horizontal skin depressions around the victims neck was caused by
ligature possibly with the use of a piece of cloth or a rope. The
protruding tongue of the victim may have been caused by constriction
around her neck. The multiple fresh lacerations of the hymen may have
been caused by forcible penetration of the victims vaginal canal. There
was watery bloodied fluid coming out of the victims vagina. Finally, the
cause of death of the victim was asphyxia by strangulation. 15
Meanwhile, SPO2 Masikat found two (2) short pants and one (1) piece
of slipper that belonged to Lolita delas Alas. 16 On the other hand, SPO2

Dionisio Calara took pictures 17 of the deceased victim and the scene of
the crime on the same evening. On November 27, 1995, police officers
Masikat and Calara returned to the crime scene and found the black bag
of the victim containing a lotion, a pair of maong pants and a pair of
shoes. 18 They also found the brown bag of the victim which contained
her Kim Harold identification card, coin purse, hair pin, powder kit and
powder puff. 19 In addition, they prepared a sketch of the scene of the
crime 20 and its vicinity. Thereafter, SPO2 Masikat conducted
interviews of the persons in the vicinity among whom were the
prosecution witnesses, Carlito Samontaez and Melecio Mendoza.
During the interview, SPO2 Masikat learned, among others, that the
suspect, Roberto Samontaez, could possibly be located at Hermogenes
Trading in Barangay Galicia III, Mendez, Cavite where he worked. 21
On November 28, 1995, SPO2 Masikat, together with police officers
Ramos, Malinay, Ocoma, Lejano and Ilao, all of the Nasugbu, Batangas
police found Roberto Samontaez at the Hermogenes Trading in
Barangay Galicia III, Mendez, Cavite. After talking to his employer, they
invited Roberto to the Nasugbu Police Headquarters. During the
interrogation at the police headquarters, Roberto informed SPO2
Masikat and SPO2 Calara that some of the personal belongings of Lolita
delas Alas were inside his bag that was left at his workplace in Mendez,
Cavite.
22
On December 4, 1995 SPO2 Masikat and his group returned to
Hermogenes Trading in Barangay Galicia III, Mendez, Cavite and
inquired from Mr. Nelson Hermogenes about the bag of Roberto.
Accordingly, Mr. Hermogenes produced a black bag purportedly
belonging to Roberto containing an Omax wrist watch, a Joop cologne
and a pawnshop receipt for a gold ring that was subsequently redeemed
by SPO2 Masikat for P500.00. The three (3) articles were positively
identified during the trial of the case by Corazon delas Alas as belonging
to her daughter, Lolita delas Alas. The police also found a fan knife
(balisong) and a Barangay Clearance inside the black bag of Roberto
Samontaez.
23
The prosecution rested its case on November 30, 1997. During the
scheduled hearings on January 14 and 29, 1998 for the presentation of
evidence of the defense, the accused took the witness stand and
reiterated his previous plea of guilty to the crime charged in the
information. Thereafter, the trial court rendered a decision, the
dispositive portion of which reads:chanrob1es virtual 1aw library
WHEREFORE, foregoing premises considered, Accused Roberto
Samontaez is found guilty beyond reasonable doubt as principal, of the
crime of Rape with Homicide as thus penalized and is hereby sentenced
to DEATH, together with the accessory penalties provided for in Article
40 of the same code. The accused is further condemned to pay to the
heirs of the victim the amount of P40,000.00 by way of compensatory or

actual damages; P50,000.00 as civil indemnity for her death; and

P100,000.00 as and for moral damages. The accused should pay costs.
SO

ORDERED.

24

In his Brief, appellant Roberto Samontaez assails the validity of his

plea of guilty to the charge in the information in this case for having
been improvidently made. On the other hand, the People belie the claim
of the appellant by citing portions of the transcript of the stenographic
notes of the hearing during the appellants re-arraignment on March 14,
1996 and that of the scheduled hearings on January 14 and 29, 1998 to
show that he voluntarily entered the plea of guilty to the crime of rape
with homicide as charged in the information and with full knowledge of
the consequences of his plea of guilty. It averred that the guilt of the
appellant was also established beyond reasonable doubt by independent
evidence adduced by the prosecution during the trial of the instant
case.chanrob1es
virtua1
1aw
1ibrary
The record shows that the trial court relied on a) the appellants plea of
guilty to the crime of rape with homicide as charged in the information
and b) the evidence adduced by the prosecution during the trial of the
instant
case.
Section 3 Rule 116 of the Revised Rules on Criminal Procedure
specifically mandates the course that trial courts should follow in case
where the accused pleads guilty to a capital offense, as
follows:chanrob1es
virtual
1aw
library
SEC. 3. Plea of guilt to capital offense; reception of evidence. When
the accused pleads guilt to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his guilt
and the precise degree of culpability. The accused may also present
evidence
in
his
behalf.
Based on the aforecited rule, three (3) things are enjoined of the trial
court after a plea of guilty to a capital offense is entered by the accused:
1. The trial court must conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of his plea; 2. The trial
court must require the prosecution to present evidence to prove the guilt
of the accused and the precise degree of his culpability through the
requisite quantum of evidence; and 3. The trial court must ask the
accused if he desires to present evidence in his behalf and allow him to
do so if he desires. 25 It must be emphasized that the said procedure is
mandatory and any judge who fails to observe it commits grave abuse of
discretion.
26
The rationale behind the rule is that the courts must proceed with more
care where the possible punishment is in its severest form, namely death,
118

for the reason that the execution of such a sentence is irrevocable and
experience has shown that innocent persons have at times pleaded guilty.
The primordial purpose is to avoid improvident pleas of guilty on the
part of an accused where grave crimes are involved since by admitting
his guilt before the court, he would forfeit his life and liberty without
having fully understood the meaning, significance and consequence of
his
plea.
27

A:

The Court notes the trial courts efforts to ensure the propriety of
appellants plea of guilty to the crime of rape with homicide as
evidenced by its lengthy inquiries to the appellant in separate hearings,
the transcript of which were reproduced in its assailed Decision. Hence,
during the scheduled hearing on March 14, 1996, the following
proceedings transpired, to wit:chanrob1es virtual 1aw library

Court:

Q:

Yes,
Where

Atty.

is

the

sir.

mother

Exchaure:chanrob1es

of

virtual

the

accused?

1aw

library

Court

Interpreter:chanrob1es

(After

reading

Your
She

is

here,

your

honor.

Teresita

Samontaez)

honor,

the

the

Court:chanrob1es

virtual

1aw

the

Q:

Are

you

A:

He

is

mother
related
my

to

the

son,

your

accused?
honor.

1aw

Information

accused

Court:chanrob1es
(To

virtual

entered

virtual

library

in

Plea

of

Pilipino.)
Not

1aw

Guilty.
library

Place the accused on the witness stand. I want to clear this matter very
well,
because
of
the
gravity
of
the
offense.
Court:

(To

the

accused)

Q: Now, is it true that your son has decided to plead guilty?

Q: Do you swear to tell the truth and nothing but the truth in this case?

A:

A:

library
Yes,

your

honor.

Yes,

sir.

Ready?
Atty.

Exchaure:chanrob1es

virtual

1aw

library

Your honor, just a moment ago I informed the accused the fact that we
will now proceed with the trial on the merits of the case, but as usual, the
accused intimated to this representation that he will be pleading guilty to
the offense charged against him. I informed him the gravity of the
offense as well as the corresponding severe penalty attached to the
offense which is death, considering that there is a new law. But the
accused insists on his desire to plead guilty, in fact I brought that desire
of his to the attention of his mother who is present, as well as his aunt,
and grandmother, and according to them, that is the wish of the accused
to
plead
guilty
to
the
charge
against
him.

Q: And as mother, did you counsel your son that pleading guilty will
mean
his
guilt
as
charged?
A:

Yes,

Court:chanrob1es

your
virtual

virtual

1aw

Prosecutor

Marajas:chanrob1es

Court

is

asking

the

library

virtual

1aw

your

A: ROBERTO SAMONTAEZ, 26 years old, single, laborer in a

construction, and a resident of Barangay Bunducan, Nasugbu, Batangas.
Q: You were re-arraigned this morning by reading to you an information
in Pilipino, did you understand the information as read to you?
A:

Yes,

sir.

library

Q: And you are a Tagalog speaking because you were born and grew up
in
Brgy.
Bunducan,
Nasugbu,
Batangas?

honor.

A:

library

Q: Do you know that by pleading guilty as you did awhile ago, the Court
will impose on you the death penalty as provided for by law for this
offense?

Yes,

sir.

library
Court:chanrob1es

The

1aw

The accused can now be re-arraigned, but after his plea of guilty, the
prosecution still has to present evidence as required by the 1985 Rules
on
Criminal
Procedure.

Yes,
Court:chanrob1es

honor.

Q: Please state your name and other personal circumstances.

virtual

1aw

accused.

Q: Is the manifestation of your counsel, Atty. Exchaure true and correct

that you have now made up your mind to plead guilty to the offense as
charged?

Make

your

motion,

Atty.

Exchaure:chanrob1es

Mr.

defense

virtual

1aw

counsel.
library

A:

Yes,

sir.

Q: And your pleading guilty was nobodys liking but of your own
volition
and
spontaneous
decision?

Q: And you are doing that with your clear mind, nobody forced you?

Your honor, the accused, a moment ago, intimated to this representation

that he is changing his former Plea of Not Guilty to that of Guilty, for
which reason, your honor, I move that the accused be re-arraigned so
that
he
could
properly
enter
his
Plea
of
Guilty.

A:

Court:chanrob1es

library

Q:

accused.

A:

A:

Yes,

Yes,

sir.

sir.

Q: And did you reveal before to your counsel your decision to plead
guilty?

Re-arraign

virtual
the

1aw

(The Court Interpreter read the information in Pilipino to the accused.).

A:

Yes,
Did

your

mother

tell
No,

sir.
you

to

plead

guilty?
sir.

Q: Did your counsel, Atty. Exchaure tell you to plead guilty?

119

A:
A:

No,

sir.

A:

Its

my

own

decision,

Yes,

sir.

sir.

Q: Do you know the consequences of your pleading guilty?

Q: And in fact, you were asked by the Honorable Court if your having
pleaded
guilty
is
of
your
own
voluntary
act?

sir.

A:

A:

Q: Did anybody for that matter tell you to plead guilty?

Q:

What

A:

A:

Q:

Did

the

prosecutor

A:

tell

you

to

plead

No,

None,

guilty?

sir.

Yes,
is

will

the
be

sir.

consequence
punished

of

with

your
a

pleading

grave

guilty?

penalty,

Yes,

Q: Now, up to the present time, do you confirm the fact that you pleaded
guilty
to
the
charge
against
you?

sir.
A:

Q: When you pleaded guilty, you were in your right senses?

A:

Yes,

Q: Do you have an idea as to the grave penalty that the Court may
impose
on
you?

sir.
A:

Q: What grade did you finish in school or what is your educational

attainment?
A:

Grade

IV,

sir.

None,

But

you

A:

can

read

and

Yes,

write?

Yes,

Q:
A:

Where
Brgy.

Bunducan,

did
Nasugbu,

sir.

sir.
A:

Q: Now, I am sternly and emphatically reminding you that the Court

may impose on you the severe penalty of death if you still maintain your
plea
of
guilty?
A: Yes, sir, despite that I am not changing my plea of guilty, sir. My
conscience is bothering me, for what I did to the victim, sir.

Yes,

Court:chanrob1es
And

sir.

virtual

even

now,

A:

1aw

nobody

is

library

threatening

Nobody,

you?
sir.

sir.

Q: As in fact, you are a registered voter, as you did vote in the last
election?
A:

Yes,

Q: At the time you pleaded guilty, nobody forced or coerced you to plead
guilty?

Q:
Q:

sir.

sir.
you
Batangas,

vote?
sir.

Q: In other words, you are admitting to have raped and killed the victim
in this case, Lolita delas Alas on that date in question and as charged in
the
information?

Q: Alright, you sign on the notes together with the assistance of your
counsel?

Atty.

Exchaure:chanrob1es

virtual

1aw

library

Q: Are you aware of the consequences of your having pleaded guilty?

A: (The accused affixed his signature on the notes together with his
counsel.)
28

A:

No,

During the scheduled hearing on January 14, 1998 for the presentation of
evidence of the defense, the following proceedings were duly recorded,
to
wit:chanrob1es
virtual
1aw
library

Court:chanrob1es

Atty.

A:

Exchaure:chanrob1es

virtual

1aw

library

Q:

Why
I

do
dont

virtual
you

say

know

sir.
1aw

you

dont

what

will

know

the

happen

library
consequences?
to

me,

sir.

The witness, your honor, is the accused himself. Although he pleaded

guilty to the crime imputed against him, he will explain to the Honorable
Court the reasons and circumstances, if any, why he pleaded guilty when
he
was
re-arraigned.

Q: Dont you understand that by pleading guilty, the Court will just
penalize
you
for
the
crime
that
you
admitted?

Q: Nobody gave or promised you any reward for your act of pleading
guilty?

Court:chanrob1es

Q: And in fact, the charge to which you pleaded guilty calls for the
supreme
penalty
of
death?

A:

Proceed.

A:

Yes,

None,

sir.

sir.

virtual

1aw

library

A:

A:
Q: Did anybody threaten or coerce or cajole you to do so?

Atty.

A:

Q: Mr. Witness, is it not a fact that when you were re-arraigned, you
pleaded
guilty
to
the
charge
against
you?

None,

sir.

Q: When you pleaded guilty awhile ago, whose decision is that?

Exchaure:chanrob1es

virtual

1aw

Yes,

Yes,

sir.

sir.

library
Q: And still you insist on or maintain your plea of guilty made before
and
you
are
confirming
the
same
this
morning?
A:

Yes,

sir.
120

Well, that is your point, you have to present your evidence.

Atty.

Exchaure:chanrob1es

virtual

1aw

library

Q: And you are willing to accept whatever will be the penalty will be
imposed by the Honorable Court for having pleaded guilty, which you
still
maintain
up
to
now?

Q: Do you know that your repentance cannot bring back the life of the
victim?
A:
Q:

A:

Yes.

Yes,
And

you

virtual

1aw

Yes,

sir.

Q: You just pray to God that in the final day of reckoning, God will still
forgive
you?
A:

Yes,

sir.

29

Also, on January 29, 1998, the following verbal exchange were recorded,
thus:chanrob1es
virtual
1aw
library
Court:

(To

the

accused)

Q: Roberto Samontaez, your counsel this morning manifested that you

cannot furnish him any evidence at least to mitigate the imposable
penalty, now under your same oath, do you confirm that?
A:

Yes,

sir.

Q: In other words, you have nothing more to say regarding your plea of
guilty?
A:

None,

sir.

Q: You have nothing more to present at least to mitigate your liability for
the offense which you admitted to have committed?
A:
Q:
A:

was
Were

then
you

high
a

on
user

Yes,

fate

to

this

Court?

marijuana,
of

Yes,

sir.

30

sir.

marijuana?
sir.

Nevertheless, We are not convinced that such lengthy inquiries

conducted by the trial court during the re-arraignment of the appellant as
well as during the subsequent hearings for the presentation of evidence
of both the prosecution and the defense sufficiently established
voluntariness and full of comprehension of the appellant of his plea of
guilty to the crime charged in the Information. It may be noted that the
appellant earlier entered the plea of "Not guilty" to the Information in
this case during his arraignment on February 1, 1996. Subsequently, the
appellant manifested, through his counsel de officio, his intention to
change his previous plea to that of a plea of guilty to the crime charged
in the Information. After having entered the plea of guilty on rearraignment, the trial court proceeded to propound questions on the
appellant during which affirmative responses were elicited from the
appellant apparently to show that his subsequent plea of guilty was his
own voluntary decision. The trial court per its Decision under review,
however, failed to dwell on a significant development that transpired
during the scheduled hearing on November 13, 1997 when the appellant
revealed in open court, through counsel, that his subsequent plea of
guilty was prompted by "pressure" from a certain policeman so that he
(appellant) agreed to admit the commission of the offense charged. The
pertinent portion of the transcript is quoted hereunder, to wit:chanrob1es
virtual
1aw
library
Court:chanrob1es

virtual

1aw

library

The prosecution having rested, the Court wants to hear from the defense
what
it
has
to
offer.
Atty.

Exchaure:chanrob1es

virtual

1aw

library

I am now in dilemma, your honor, considering that the accused has

already pleaded guilty to the charge against him and the accused
intimated to me this morning that he is changing his plea of guilty
because according to him when he testified before this Honorable Court
admitted and pleaded guilty (sic), he was under pressure by a certain
policeman
to
admit
the
commission
of
the
offense.

Q: And you were repentant of what you did to the victim?

Court:chanrob1es
A:

Yes,

Exchaure:chanrob1es

virtual

1aw

library

In that case, your honor, considering the recent development on the

intention of the accused, may I be allowed to confer first with the
accused and ask the Honorable Court to have this case to move for
continuance to give us time to present the accused himself at the next
schedule
hearing.

library

Are you remorseful for the crime imputed to you and which you
admitted
to
have
committed?
A:

your

Sir.
A:

Court:chanrob1es

leave

sir.

Atty.

virtual

1aw

library

Court:chanrob1es

virtual

1aw

library

Granted.
Prosecutor

Marajas:chanrob1es

virtual

1aw

library

I just manifest for the record that the accused is a detention prisoner if
what the defense counsel stated were true and correct that Mr. Roberto
Samontaez was just pressured, the more he should present the . . .
Court:chanrob1es
Precisely,

thats

virtual
why

he

is

1aw
asking

for

library

postponement.

31

The trial court perfunctorily brushed aside the aforesaid disclosure from
the appellant that he was pressured by a policeman to change his earlier
plea of not guilty to that of guilty to the charge in the information. It did
not propound any clarificatory questions about the matter on the same
occasion such as the identity of the concerned policeman, the nature of
the pressure and the circumstances under which the alleged pressure was
applied on the appellant. Although further inquiries were undertaken by
the trial court in the subsequent hearings on January 14 and 29, 1998, the
questions addressed to the appellant were primarily aimed at eliciting
affirmative responses or confirmations of his plea of guilty. The
statement of the appellant that he was pressured by a certain policeman
apparently escaped the memory or concern of the trial court as it did not
crop up in its inquiry during those subsequent hearings. Left
unventilated, the appellants allegation of pressure generates doubt on
the voluntariness of his plea of guilty to a capital offense.
Certain other considerations pose nagging doubts on the clarity of
appellants grasp of the true meaning, full significance and consequences
of his plea of guilty. The trial court failed to mention and explain clearly
to the appellant the elements of the crime of rape with homicide as
charged in the Information. 32 As a result, appellant was not properly
accorded his fundamental right to be informed of the precise nature of
the accusation against him, which is an integral aspect of the due process
clause under the Constitution.chanrob1es virtua1 1aw 1ibrary

sir.
121

Notably, the appellant who reached grade IV only stated that he did not
know the consequences of his plea of guilty during the hearing on
February 14, 1996 and again, during the hearing on January 14, 1998.
While the trial court informed the appellant that his plea of guilty meant
that he admitted liability for the crime of rape with homicide, as charged
in the information, which carries the penalty of death, it failed to
emphasize that his said plea of guilty would not, under any
circumstance, affect or reduce the death penalty, the imposition of which
is mandatory under Section 11 of Republic Act No. 7659. 33 In which
event, the appellant must be made to understand in plain and simple
language the precise meaning of the term "mandatory." 34 Additionally,
the trial court failed to apprise the appellant of the civil liability (e.g.
indemnity, moral damages and exemplary damages) arising from the
crime of rape with homicide which shall be imposed on him as
perpetrator of the crime. 35 Despite appellants apparent willingness to
accept the penalty for his crime, it is not farfetched to say that appellant
was actually led to believe that the penalty for his crime may still be
reduced upon his plea of guilty thereto especially when the trial court
informed the appellant, through counsel, that he should adduce evidence.
Also, the trial court should have probed deeper to the extent of securing
every material detail of the crime in its lengthy inquiries to the appellant
subsequent to his re-arraignment. Questions tending to elicit
corroborative responses to the testimonies of the prosecution witnesses
should have been asked of the appellant. Although there is no definite
and concrete rule as to how a trial judge may go about the matter of a
proper "searching inquiry", it would be well for the trial court, for
instance, to require the appellant to fully narrate the incident that
spawned the charges against him, or by making him re-enact the manner
in which he perpetrated the crime, or by causing him to furnish and
explain to the court missing details of significance in order to determine,
once and for all, his liability for the crime. 36 As it is, the Decision of the
trial court is devoid of any factual finding relative to the actual
commission of the crime of rape with homicide by the appellant. In the
final analysis, it is the quality rather than the number of questions
propounded during the inquiry that serves the task of ascertaining the
voluntariness and full comprehension by the accused of the
consequences of his plea of guilty to a capital offense.
Lastly, the trial court lamentably considered pieces of evidence that are
inadmissible in evidence for being the proverbial "fruit of a poisonous
tree." The facts show that the appellant Roberto Samontaez was
actually arrested by police authorities of Nasugbu, Batangas on
November 28, 1995 at his workplace in Barangay Galicia III, Mendez,
Cavite. It does not appear from the record that the appellant was apprised
of his constitutional rights during the police custodial investigation
which are enshrined in Article III, Section 12(1) of the 1987
Constitution. 37 It also does not appear that he was assisted by counsel
during the said custodial investigation. In the absence of a valid waiver,

any confession obtained from the appellant during the police custodial
investigation relative to the crime, including any other evidence secured
by virtue of the said confession is inadmissible in evidence even if the
same was not objected to during the trial by the counsel of the appellant.
Thus, the personal belongings of the victim namely: Omax wristwatch,
gold ring and Joop cologne were recovered and found inside the bag of
the appellant when the police authorities returned to the appellants place
of work at the Hermogenes Trading in Barangay Galicia III, Mendez,
Cavite after they illegally obtained a confession from the appellant. In
the case of People v. Alicando, 38 the Court had opportunity to reiterate
the rule that evidence gathered by virtue of an illegally obtained
confession is inadmissible, thus:chanrob1es virtual 1aw library
We have not only constitutionalized the Miranda warnings in our
jurisdiction We have also adopted the libertarian exclusionary rule
known as the "fruit of the poisonous tree," a phrase minted by Mr.
Justice Felix Frankfurter in the celebrated case of Nardone v. United
States. According to this rule, once the primary source (the "tree") is
shown to have been unlawfully obtained, any secondary or derivative
evidence (the "fruit") derived from it is also inadmissible. Stated
otherwise, illegally seized evidence is obtained as a direct result of the
illegal act, whereas the "fruit of the poisonous tree" is the indirect result
of the same illegal act. The "fruit of the poisonous tree" is at least once
removed from the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because
the originally illegally obtained evidence taints all evidence subsequently
obtained.
The only other evidence of the prosecution are the testimonies of Carlito
Samontaez and Melecio Mendoza, both of which merely seek to
establish the presence of the appellant near the vicinity of the crime
scene on or about the time when the crime took place. Ultimately, the
conviction of the appellant for the crime charged in the case at bar rested
primarily on his plea of guilty which appeared to have been
improvidently made and hence, contrary to the letter and spirit of Section
3, Rule 116 of the Revised Rules of Court, supra.chanrob1es virtua1 1aw
1ibrary
WHEREFORE, the Decision of the Regional Trial Court, Branch 14, of
Nasugbu, Batangas dated May 15, 1998 in Criminal Case No. 1032
convicting the appellant, Roberto V. Samontaez, of the crime of rape
with homicide and sentencing him to suffer the supreme penalty of death
is hereby ANNULLED and SET ASIDE; and the case is remanded to the
court of origin for the proper arraignment and trial of the accused until
terminated.
SO

ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,

Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes and YnaresSantiago, JJ., concurs.

Endnotes:
1. Penned by Judge Antonio A. De Sagun. Rollo, pp. 27-61.
2.
Rollo,
pp.
1-2.
3.
TSN
dated
March
14,
1996,
pp.
2-7.
4. TSN dated June 10, 1997, pp. 2-5; Exhibit "S" .
5.
Exhibit
"S"
.
6.
TSN
dated
June
10,
1997,
pp.
9-10.
7. TSN dated March 14, 1996, pp. 9-13; Exhibit "A" .
8.
Id.,
pp.
14-15.
9.
TSN
dated
June
26,
1996,
pp.
4-8;
10-11.
10.
Id.,
pp.
8-9.
11.
TSN
dated
July
11,
1996,
p.
5.
12.
Exhibit
"B"
.
13.
Exhibit
"C"
.
14.
Exhibit
"D"
.
15.
TSN
dated
March
27,
1996,
pp.
6-10.
16.
Exhibits
"Q",
"R",
"H"
.
17.
Exhibits
"f"
to
"F-4"
.
18.
Exhibits
"K"
to
"K-3"
.
19. Exhibits "L" to "L-3" ; Exhibits "M", "M-1" .
20.
Exhibit
"J"
.
21.
TSN
dated
July
11,
1996,
p.
13.
22.
Id,
pp.
13-14.
23.
Exhibits
"N"
to
"P-3"
.
24.
Rollo,
p.
61.
25. People v. Camay, 152 SCRA 401, 403 (1987); People v. Derilo 271
SCRA 633, 651 (1997); People v. Sevilleno, 305 SCRA 519, 528 (1999);
People v. Bello, G.R Nos. 130411-14, October 13, 1999.
26.
People
v. Dayot 187 SCRA 637,
641 (1990).
27. People v. Albert, 251 SCRA 136, 145-146 (1995) citing 14 Am. Jur.,
Criminal Law, Sec. 271, p. 951; People v. Gonzaga, 127 SCRA 158, 163
(1984); People v. Havana 199 SCRA 805, 811 (1991).
28.
TSN
dated
March
14,
1996,
pp.
2-7.
29.
TSN
dated
January
14,
1998,
pp.
2-5.
30. Minutes dated January 29, 1998. Original records, pp. 164- 165.
31. Minutes dated November 13, 1997. Original records, pp. 152-153.
32.
People
v.
Sevilleno
supra,
p.
528.
33. People v. De Luna, 174 SCRA 204, 212 (1989); People v. Sevilleno,
supra, pp. 528-529; People v. Bello, supra, G.R. Nos. 130411-14.
34. People v. Alicando, 251 SCRA 293, 308 (1995).
35.
Ibid.
36. People v. Estomaca, 256 SCRA 429, 437 (1996) citing People v.
Dayot,
supra.
122

37. Article III Section 12 paragraph (1) provides:chanrob1es virtual 1aw

library
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.
x

38. Supra, pp. 314-315.

EN BANC
[G.R. NO. 145566 - March 9, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v. DINDO "BEBOT"
MOJELLO, appellant.
DECISION
YNARES-SANTIAGO, J.:
On automatic review is a decision of the Regional Trial Court (RTC) of
Bogo, Cebu, Branch 61, finding appellant Dindo "Bebot" Mojello guilty
beyond reasonable doubt of the crime of rape with homicide defined and
penalized under Article 335 of the Revised Penal Code, as amended by
Republic Act No. 7659, and sentencing him to the supreme penalty of
death.1 rll
Appellant Dindo Mojello, alias "Bebot" was charged with the crime of
rape with homicide in an Information dated May 22, 1997, as follows: 2
That on the 15th day of December 1996, at about 11:00 o'clock in the
evening, at Sitio Kota, Barangay Talisay, Municipality of Santa Fe,
Province of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, moved by lewd design and
by means of force, violence and intimidation, did then and there
willfully, unlawfully and feloniously succeed in having carnal
knowledge with Lenlen Rayco under twelve (12) years of age and with
mental deficiency, against her will and consent, and by reason and/or on
the occasion thereof, purposely to conceal the most brutal act and in

pursuance of his criminal design, the above-named accused, did then and
there willfully, unlawfully and feloniously with intent to kill,
treacherously and employing personal violence, attack, assault and kill
the victim Lenlen Rayco, thereby inflicting upon the victim wounds on
the different parts of her body which caused her death.
CONTRARY TO LAW.
Appellant was arraigned on July 24, 1997, entering a plea of "not
guilty." Trial followed.
On January 21, 1999, the trial court rendered judgment finding appellant
guilty beyond reasonable doubt of the crime of rape with homicide, and
sentencing him to suffer the death penalty.

Dr. Sator testified that the swelling of the labia majora and hymenal
lacerations positively indicate that the victim was raped. 10 He observed
that froth in the lungs of the victim and contusions on her neck show that
she was strangled and died of asphyxia.11 He indicated the cause of
death as cardio-respiratory arrest due to asphyxia by strangulation and
physical injuries to the head and the trunk. 12 rll
In this automatic review, appellant raises two issues: whether the
extrajudicial confession executed by appellant is admissible in evidence;
and whether appellant is guilty beyond reasonable doubt of the crime of
rape with homicide.
We now resolve.

From the facts found by the court a quo, it appears that on December 15,
1996, at or around 9:00 p.m., Rogelio Rayco was having some drinks
with a group which included Roger Capacito and his wife and the
spouses Borah and Arsolin Illustrismo at the Capacito residence located
at Barangay Talisay, Sta. Fe, Cebu.3 rll

Appellant alleges that the lower court gravely erred in admitting in

evidence the alleged extrajudicial confession which he executed on
December 23, 1996. In his Brief, appellant avers that the confession
which he executed was not freely, intelligently and voluntarily entered
into.13 He argues that he was not knowingly and intelligently apprised

Rogelio Rayco left the group to go home about an hour later. On his way
home, he saw his niece, Lenlen Rayco, with appellant Dindo Mojello, a
nephew of Roger Capacito, walking together some thirty meters away
towards the direction of Sitio Kota. 4 Since he was used to seeing them

of his constitutional rights before the confession was taken from

him.14 Hence, his confession, and admissions made therein, should be

together on other occasions, he did not find anything strange about this.
He proceeded to his house.5 rll

We are not convinced.

On December 16, 1996, between 5:00 to 6:00 a.m., the Rayco family
was informed that the body of Lenlen was found at the seashore of Sitio
Kota. Rogelio Rayco immediately proceeded to the site and saw the
lifeless, naked and bruised body of his niece. Rogelio was devastated by
what he saw. A remorse of conscience enveloped him for his failure to
protect his niece. He even attempted to take his own life several days
after the incident.6 rll
Appellant was arrested at Bantayan while attempting to board a motor
launch bound for Cadiz City. On an investigation conducted by SPO2
Wilfredo Giducos, he admitted that he was the perpetrator of the
dastardly deed. Appellant was assisted by Atty. Isaias Giduquio during
his custodial interrogation. His confession was witnessed by Barangay
Captains Wilfredo Batobalanos and Manolo Landao. Batobalanos
testified that after it was executed, the contents of the document were
read to appellant who later on voluntarily signed it. 7 Appellant's
extrajudicial confession was sworn before Judge Cornelio T. Jaca of the
Municipal Circuit Trial Court (MCTC) of Sta. Fe-Bantayan. 8 On
December 21, 1996, an autopsy was conducted on the victim's cadaver
by Dr. Nestor Sator of the Medico-Legal Branch of the PNP Crime
Laboratory, Region VII.9 rll

deemed inadmissible in evidence, under the fruit of the poisonous tree

doctrine.

At the core of the instant case is the application of the law on custodial
investigation enshrined in Article III, Section 12, paragraph 1 of the
Constitution, which provides:
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 above provision in the fundamental Charter embodies what
jurisprudence has termed as "Miranda rights" stemming from the
landmark decision of the United States Supreme Court, Miranda v.
Arizona.15 It has been the linchpin of the modern Bill of Rights, and the
ultimate refuge of individuals against the coercive power of the State.
The Miranda doctrine requires that: (a) any person under custodial
investigation has the right to remain silent; (b) anything he says can and
will be used against him in a court of law; (c) he has the right to talk to
an attorney before being questioned and to have his counsel present
when being questioned; and (d) if he cannot afford an attorney, one will
be provided before any questioning if he so desires.
123

In the Philippines, the right to counsel espoused in the Miranda doctrine

was based on the leading case of People v. Galit16 and Morales, Jr. v.
Enrile,17 rulings subsequently incorporated into the present
Constitution. The Miranda doctrine under the 1987 Charter took on a
modified form where the right to counsel was specifically qualified to
mean competent and independent counsel preferably of the suspect's
own choice. Waiver of the right to counsel likewise provided for stricter
requirements compared to its American counterpart; it must be done in
writing, and in the presence of counsel.
Verily, it may be observed that the Philippine law on custodial
investigation has evolved to provide for more stringent standards than
what was originally laid out in Miranda v. Arizona. The purpose of the
constitutional limitations on police interrogation as the process shifts
from the investigatory to the accusatory seems to be to accord even the
lowliest and most despicable criminal suspects a measure of dignity and
respect. The main focus is the suspect, and the underlying mission of
custodial investigation to elicit a confession.
The extrajudicial confession executed by appellant on December 23,
1996, applying Art. III, Sec. 12, par. 1 of the Constitution in relation to
Rep. Act No. 7438, Sec. 2 complies with the strict constitutional
requirements on the right to counsel. In other words, the extrajudicial
confession of the appellant is valid and therefore admissible in evidence.
As correctly pointed out by the Solicitor General, appellant was
undoubtedly
apprised
of
his Miranda rights
under
the
Constitution.18 The court a quo observed that the confession itself
expressly states that the investigating officers informed him of such
rights.19 As further proof of the same, Atty. Isaias Giduquio testified that
while he was attending a Sangguniang Bayan session, he was requested
by the Chief of Police of Sta. Fe to assist appellant. 20 Appellant
manifested on record his desire to have Atty. Giduquio as his counsel,
with the latter categorically stating that before the investigation was
conducted and appellant's statement taken, he advised appellant of his
constitutional rights. Atty. Giduquio even told appellant to answer only
the questions he understood freely and not to do so if he was not sure of
his answer.21 Atty. Giduquio represented appellant during the initial
stages of the trial of the present case.
Atty. Giduquio was a competent and independent counsel of appellant
within the contemplation of the Constitution. No evidence was presented
to negate his competence and independence in representing appellant
during the custodial investigation. Moreover, appellant manifested for
the record that Atty. Giduquio was his choice of counsel during the
custodial proceedings.
The phrase "preferably of his own choice" does not convey the message
that the choice of a lawyer by a person under investigation is exclusive

as to preclude other equally competent and independent attorneys from

handling the defense; otherwise the tempo of custodial investigation will
be solely in the hands of the accused who can impede, nay, obstruct the
progress of the interrogation by simply selecting a lawyer who, for one
reason or another, is not available to protect his interest. 22 rll
We ruled in People v. Continente23 that while the choice of a lawyer in
cases where the person under custodial interrogation cannot afford the
services of counsel or where the preferred lawyer is not available is
naturally lodged in the police investigators, the suspect has the final
choice as he may reject the counsel chosen for him and ask for another
one. A lawyer provided by the investigators is deemed engaged by the
accused when he does not raise any objection against the counsel's
appointment during the course of the investigation, and the accused
thereafter subscribes to the veracity of the statement before the swearing
officer.24 rll
The right to counsel at all times is intended to preclude the slightest
coercion as would lead the accused to admit something false. The
lawyer, however, should never prevent an accused from freely and
voluntarily telling the truth. In People v. Dumalahay,25 this Court held:
The sworn confessions of the three accused show that they were properly
apprised of their right to remain silent and right to counsel, in
accordance with the constitutional guarantee.
At 8:00 in the morning of the next day, the three accused
proceeded to the office of Atty. Rexel Pacuribot, Clerk of
Court of the Regional Trial Court of Cagayan de Oro
City. All of the three accused, still accompanied by Atty.
Ubay-ubay, subscribed and swore to their respective
written confessions. Before administering the oaths, Atty.
Pacuribot reminded the three accused of their
constitutional rights under the Miranda doctrine and
verified that their statements were voluntarily given.
Atty. Pacuribot also translated the contents of each
confession in the Visayan dialect, to ensure that each
accused understood the same before signing it.
No ill-motive was imputed on these two lawyers to
testify falsely against the accused. Their participation in
these cases merely involved the performance of their
legal duties as officers of the court. Accused-appellant
Dumalahay's allegation to the contrary, being selfserving, cannot prevail over the testimonies of these
impartial and disinterested witnesses.
More importantly, the confessions are replete with details
which could possibly be supplied only by the accused,
reflecting
spontaneity
and
coherence
which

psychologically cannot be associated with a mind to

which violence and torture have been applied. These
factors are clear indicia that the confessions were
voluntarily given.
When the details narrated in an extrajudicial confession
are such that they could not have been concocted by one
who did not take part in the acts narrated, where the
claim of maltreatment in the extraction of the confession
is unsubstantiated and where abundant evidence exists
showing that the statement was voluntarily executed, the
confession is admissible against the declarant. There is
greater reason for finding a confession to be voluntary
where it is corroborated by evidence aliunde which
dovetails with the essential facts contained in such
confession.
The confessions dovetail in all their material respects.
Each of the accused gave the same detailed narration of
the manner by which Layagon and Escalante were killed.
This clearly shows that their confessions could not have
been contrived. Surely, the three accused could not have
given such identical accounts of their participation and
culpability in the crime were it not the truth.
Concededly, the December 17, 1996 custodial investigation upon
appellant's apprehension by the police authorities violated
the Miranda doctrine on two grounds: (1) no counsel was present; and
(2) improper waiver of the right to counsel as it was not made in writing
and in the presence of counsel. However, the December 23, 1996
custodial investigation which elicited the appellant's confession should
nevertheless be upheld for having complied with Art. III, Sec. 12, par. 1.
Even though improper interrogation methods were used at the outset,
there is still a possibility of obtaining a legally valid confession later on
by properly interrogating the subject under different conditions and
circumstances than those which prevailed originally.26 rll
The records of this case clearly reflect that the appellant freely,
voluntarily and intelligently entered into the extrajudicial confession in
full compliance with the Miranda doctrine under Art. III, Sec. 12, par. 1
of the Constitution in relation to Rep. Act No. 7438, Sec. 2. SPO2
Wilfredo Abello Giducos, prior to conducting his investigation,
explained to appellant his constitutional rights in the Visayan dialect,
notably Cebuano, a language known to the appellant, viz:27
PASIUNA (PRELIMINARY) : Ikaw karon Dindo Mojello ubos sa usa
ka inbestigasyon diin ikaw gituhon nga adunay kalabutan sa kamatayon
ni LENLEN RAYCO ug nahitabong paglugos kaniya. Ubos sa atong
Batakang Balaod, ikaw adunay katungod sa pagpakahilom ning maong
inbesigasyon karon kanimo ug aduna usab ikaw ug katungod nga
katabangan ug usa ka abogado nga motabang karon kanimo ning maong
124

inbestigasyon. Imo ba nasabtan kining tanan? (DINDO MOJELLO, you

are hereby reminded that you are under investigation in which you were
suspected about the death and raping of LENLEN RAYCO. Under the
Constitution you have the right to remain silent about this investigation
on you now and you have also the right to have counsel of your own
choice to assist you in this investigation now. Have you understood
everything?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Human ikaw sayri sa
imong katungod ubos sa atong Batakang Balaod sa
pagpakahilom, gusto ba nimo nga ipadayon nato kining
inbestigasyon karon kanimo? (After you have been
apprised of your rights under our Constitution to remain
silent, do you want to proceed this investigation on you
now?)
TUBAG (QUESTION) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Gusto ba usab nimo ug
abogado nga makatabang kanimo ning maong
inbestigasyon? (Do you want counsel to assist you in this
said investigation?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
APPEARANCE : Atty. Isaias Giduquio is appearing as
counsel of the affiant.
PANGUTANA (QUESTION) : Ako usab ikaw
pahinumdoman nga unsa man ang imo isulti karon dinhi
magamit pabor o batok kanimo sa Hukmanan, nasabtan
ba nimo kining tanan mo nga mga katungod nga walay
naghulga, nagpugos o nagdagmal kanimo o nagsaad ba
ug ganti sa kaulihan? (You are also hereby reminded that
all your statements now will be used as evidence against
or in your favor in any court of justice. Have you
understood all your rights with nobody coercing or
forcing you, or mauling or promising a reward in the
end?)
TUBAG (ANSWER) : Oo (Yes.)
PANGUTANA (QUESTION) : Andam ka nga mohatag
ug libre ug boluntaryo nga pamahayag? (Are you now
ready to give your free and voluntary statement?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
xxx

xxx

xxx

(START OF CUSTODIAL INVESTIGATION)

xxx

xxx

x x x.

The trial court observed that as to the confession of appellant, he was

fully apprised of his constitutional rights to remain silent and his right to
counsel, as contained in such confession. 28Appellant was properly

where the Miranda warnings have been given, the test of voluntariness
should be subsequently applied in order to determine the probative
weight of the confession.

assisted by Atty. Isaias Giduquio. The extrajudicial confession of

appellant was subscribed and sworn to before Judge Cornelio T. Jaca,
Municipal Judge of Medellin-Daanbantayan and acting Judge of MCTC
Sta. Fe-Bantayan and Madredijos. Judge Jaca declared that he explained
to the appellant the contents of the extrajudicial confession and asked if
he understood it. He subsequently acknowledged that when appellant
subscribed to his statement, Atty. Giduquio, witness Batobalonos and his
Clerk of Court were present as well as other people. 29 rll

Accordingly, the presumption of voluntariness of appellant's confession

remains unrebutted by his failure to present independent evidence that
the same was coerced.

The extrajudicial confession executed by the appellant followed the rigid

requirements of the Miranda doctrine; consequently, it is admissible as
evidence. The lower court was correct in giving credence to the
extrajudicial confession of the appellant.
On cross-examination, appellant Mojello claimed his life was threatened,
thereby inducing him to execute an extrajudicial confession, yet he
neither filed any case against the person who threatened him, nor he
report this to his counsel. He further claimed that he did not understand
the contents of the confession which was read in the Visayan dialect, yet
he admits that he uses the Visayan dialect in his daily discourse.
In People v. Pia,30 we held that "where appellants did not present
evidence of compulsion or duress or violence on their persons; where
they failed to complain to officers who administered the oaths; where
they did not institute any criminal or administrative action against their
alleged maltreatment; where there appears no marks of violence on their
bodies and where they did not have themselves examined by a reputable
physician to buttress their claim, all these should be considered as factors
indicating voluntariness of confessions." The failure of the appellant to
complain to the swearing officer or to file charges against the persons
who allegedly maltreated him, although he had all the chances to do so,
manifests voluntariness in the execution of his confessions. 31 To hold
otherwise is to facilitate the retraction of his statements at the mere
allegation of threat, torture, coercion, intimidation or inducement,
without any proof whatsoever. People v. Enanoria further declared that
another indicium of voluntariness is the disclosure of details in the
confession which could have been known only to the declarant. 32rll
The confessant bears the burden of proof that his confession is tainted
with duress, compulsion or coercion by substantiating his claim with
independent evidence other than his own self-serving claims that the
admissions in his affidavit are untrue and unwillingly executed. 33 Bare
assertions will certainly not suffice to overturn the presumption. 34 rll
The test for determining whether a confession is voluntary is whether the
defendant's will was overborne at the time he confessed. 35 In cases

It cannot be gainsaid that the constitutional duty of law enforcement

officers is to ensure that a suspect has been properly apprised of
his Miranda rights, including the right to counsel. It is in the paramount
public interest that the foundation of an effective administration of
criminal justice relies on the faithful adherence to the Miranda doctrine.
Compliance with Art. III, Sec. 12, par. 1 by police authorities is central
to the criminal justice system; Miranda rights must in every case be
respected, without exception.
Thus, the confession, having strictly complied with the constitutional
requirements under Art. III, Sec. 12, par. 1, is deemed admissible in
evidence against appellant. It follows that the admission of culpability
made therein is admissible. It is therefore not "fruit of the poisonous
tree" since the tree itself is not poisonous.
Appellant also alleges that the lower court gravely erred in holding him
guilty beyond reasonable doubt of the crime of rape with homicide,
thereby sentencing him to suffer the death penalty despite the glaring
insufficiency of circumstantial evidence against him. In his Brief, he
argues that the evidence against him is insufficient to warrant his
conviction of rape with homicide.
The categorical admission of the appellant to the crime of rape, coupled
with the corpus delictias established by the Medico-Legal Report and the
testimony of Rogelio Rayco, leads us to no other conclusion than that of
appellant's guilt for the rape of Lenlen Rayco on December 15, 1996. It
passes the test of moral certainty and must therefore be sustained.
However, the records do not adequately show that appellant admitted to
killing the victim. Neither is the circumstantial evidence sufficient to
establish that by reason or on the occasion of the rape a homicide was
committed by the appellant. The lack of physical evidence further
precludes us from connecting the slaying of the victim to her sexual
assault, given the quantum of proof required by law for conviction. No
estimated time of death was given, which is essential in making a
connection with the appellant's story that he went home after a night of
drinking. The time when he and the victim were headed towards the
seashore at or about 9:00 to 10:00 p.m. of December 15, 1996 until the
time when the victim's lifeless body was found at or about 4:00 a.m. of
December 16, 1996 had a time variance of between six to seven hours.
Although the circumstances may point to the appellant as the most likely
perpetrator of the homicide, the same do not constitute an unbroken
chain of events which would lead us to a reasonable conclusion that
appellant was guilty of killing the victim. In other words, there are gaps
125

in the reconstruction of facts and inferences surrounding the death of

Lenlen. Appellant only admitted to boxing the victim when she shouted,
then hurriedly ran away. The cause of death of Lenlen was cardiorespiratory attack due to asphyxiation and physical injuries; she was
strangled to death and left on the seashore as manifested by the frothing
in her lungs. No physical, scientific or DNA evidence was presented to
pinpoint appellant as the person who killed the victim. Fingerprints, if
available, would have determined who committed the homicide. Thus,
appellant cannot be convicted of rape with homicide considering the
insufficiency of evidence which thereby created a reasonable doubt as to
his guilt for the said special complex crime.
Appellant should instead be held liable only for the crime of statutory
rape, the victim Lenlen Rayco being then eleven years old. The sexual
assault was necessarily included in the special complex crime charged in
the Information dated May 22, 1997.
The trial court should have awarded damages to the heirs of the victim.
Civil indemnity in the amount of P50,000.00 is awarded upon the
finding of the fact of rape.36 Moral damages in the amount of
P50,000.00 may likewise be given to the heirs of the victim without need
of proof in accordance with current jurisprudence. 37 rll
WHEREFORE, in view of the foregoing, the decision of the Regional
Trial Court of Bogo, Cebu, Branch 61 in Criminal Case No. B-00224 is
AFFIRMED with MODIFICATION. Appellant Dindo Mojello is found
guilty beyond reasonable doubt of the crime of statutory rape and
sentenced to suffer the penalty of reclusion perpetua. He is also ordered
to pay the heirs of the victim, Lenlen Rayco, P50,000.00 as civil
indemnity and P50,000.00 as moral damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales,
Callejo,
Sr.,
and
Azcuna, JJ., concur.
Puno, J., on
leave.
Vitug, J., joins
the
dissent.
Panganiban, J., on
official
leave.
Quisumbing, J., please
see
dissenting
opinion.
TINGA, J., joins the dissent of J. Quisumbing.

126

Republic of the Philippines

Supreme Court
Manila

FIRST DIVISION

HO WAI PANG,

G.R. No. 176229

Petitioner,

Factual Antecedents
Present:

CORONA, C.J., Chairperson,

- versus -

Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16,
2006 Decision[3] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459
affirming the April 6, 1995 Decision[4] of the Regional Trial Court (RTC),
Branch 118 of Pasay City in Criminal Case No. 91-1592, finding him and his coaccused, namely, Law Ka Wang, Chan Chit Yue,[5] Wu Hing Sum, Tin San
Mao[6] and Kin San Ho[7] guilty beyond reasonable doubt for violation of
Section 15, Article III[8] of Republic Act (R.A.) No. 6425 otherwise known as
the Dangerous Drugs Act of 1972. Also assailed is the January 16, 2007 CA
Resolution[9] denying the motion for reconsideration thereto.

LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:

Respondent.

October 19, 2011

x------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

Infraction of the rights of an accused during custodial investigation or

the so-called Miranda Rights render inadmissible only the extrajudicial
confession or admission made during such investigation.[1] The admissibility of
other evidence, provided they are relevant to the issue and is not otherwise
excluded by law or rules, is not affected even if obtained or taken in the course of
custodial investigation.[2]

On September 6, 1991, at around 11:30 in the evening, United Arab Emirates

Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino
International Airport (NAIA). Among the passengers were 13 Hongkong
nationals who came to the Philippines as tourists. At the arrival area, the group
leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form
to Customs Examiner Gilda L. Cinco (Cinco), who was then manning Lane 8 of
the Express Lane. Cinco examined the baggages of each of the 13 passengers as
their turn came up. From the first traveling bag, she saw few personal belongings
such as used clothing, shoes and chocolate boxes which she pressed. When the
second bag was examined, she noticed chocolate boxes which were almost of the
same size as those in the first bag. Becoming suspicious, she took out four of the
chocolate boxes and opened one of them. Instead of chocolates, what she saw
inside was white crystalline substance contained in a white transparent
plastic. Cinco thus immediately called the attention of her immediate superiors
Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to
call the Narcotics Command (NARCOM) and the police. Thereupon, she guided
the tourists to the Intensive Counting Unit (ICU) while bringing with her the four
chocolate boxes earlier discovered.

At the ICU, Cinco called the tourists one after the other using the
passenger manifest and further examined their bags. The bag of Law Ka Wang
was first found to contain three chocolate boxes. Next was petitioners bag which
contains nothing except for personal effects. Cinco, however, recalled that two of
the chocolate boxes earlier discovered at the express lane belong to him. Wu
Hing Sums bag followed and same yielded three chocolate boxes while the
baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each contained two or
three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from
the baggages of the six accused.

NARCOM Agent Neowillie de Castro corroborated the relevant testimony of

Cinco pertaining to the presence of the chocolate boxes. According to him, he

conducted a test on the white crystalline substance contained in said chocolate

boxes at the NAIA using the Mandelline Re-Agent Test.[10] The result of his
examination[11] of the white crystalline substance yielded positive for
methamphetamine hydrochloride or shabu. Thereafter, the chocolate boxes were
bundled together with tape, placed inside a plastic bag and brought to the Inbond
Section.

The following day, September 7, 1991, the 13 tourists were brought to the
National Bureau of Investigation (NBI) for further questioning. The confiscated
stuff were turned over to the Forensic Chemist who weighed and examined
them. Findings show that its total weight is 31.1126 kilograms and that the
representative samples were positive for methamphetamine hydrochloride.
[12] Out of the 13 tourists, the NBI found evidence for violation of R.A. No.
6425 only as against petitioner and his five co-accused.

Accordingly, six separate Informations all dated September 19, 1991 were filed
against petitioner and his co-accused. These Informations were docketed as
Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a
Motion for Reinvestigation[13] which the trial court granted. The reinvestigation
conducted gave way to a finding of conspiracy among the accused and this
resulted to the filing of a single Amended Information[14] under Criminal Case
No. 91-1592 and to the withdrawal of the other Informations.[15] The Amended
Information reads:

That on or about September 6, 1991 in Pasay City,

Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and mutually helping one another, did, then and there,
willfully, unlawfully and feloniously carry and transport
into the country without lawful authority, 31.112 kilograms,
more
or
less,
of METHAMPHETAMINE HYDROCHLORIDE, also
popularly known as SHABU, a regulated drug.

CONTRARY TO LAW.[16]

After pleading not guilty to the crime charged,[17] all the accused testified almost
identically, invoking denial as their defense. They claimed that they have no
knowledge about the transportation of illegal substance (shabu) taken from their
traveling bags which were provided by the travel agency.

127

Ruling of the Regional Trial Court

On April 6, 1995, the RTC rendered a Decision[18] finding all the accused guilty
of violating Section 15, Article III of R.A. No. 6425, as amended, the decretal
portion of which reads:

WHEREFORE, all the foregoing considered,

the Court finds the accused LAW KA WANG, CHAN
CHIT YUE, HO WAI PANG, WU HING SUM, TIN
SUN MAO, AND KIN SAN HO (HO KIN SAN)
GUILTY of Conspiracy in violating Section 15, Article III,
Republic Act No. 6425, as amended for having conspired
to transport into the Philippines 31.112 kilograms of
methamp[h]etamine hydrochloride, locally known as
Shabu, and they are hereby sentenced to suffer the
PENALTY OF IMPRISONMENT OF SIX (6) [sic]
RECLUSION PERPETUA AND TO PAY EACH (SIC)
THE AMOUNT OF THIRTY (30) THOUSAND PESOS
(P30,000.00) each as FINE, the penalty of reclusion
perpetua is being imposed pursuant to Republic Act No.
7659 considering its applicability to the accused though
retroactively for having a less stricter penalty than that of
life imprisonment provided in Republic Act No. 6425. The
fine of P30,000.00 for each accused is imposed pursuant to
R.A. No. 6425 it being more favorable to the accused
[than] that provided in R.A. No. 7659 WITH
IMMEDIATE DEPORTATION AFTER SERVICE OF
SENTENCE. The penalty of death cannot be imposed
since the offense was committed prior to the effectivity of
R.A. No. 7659.

Let an alias warrant of arrest be issued against

accused WONG KOK WAH @ SONNY WONG, CHAN
TAK PIU, HO WAI LING AND INOCENCIA CHENG.

SO ORDERED.[19]

From this judgment, all the accused appealed to this Court where the
case records were forwarded to per Order of the RTC dated May 10, 1995.
[20] Later, all the accused except for petitioner, filed on separate dates their
respective withdrawal of appeal.[21] This Court, after being satisfied that the
withdrawing appellants were fully aware of the consequences of their action,

granted the withdrawal of their respective appeals through a Resolution

dated June 18, 1997.[22] Per Entry of Judgment, [23] said Resolution became
final and executory on July 7, 1997. Consequently, petitioner was the only one
left to pursue his appeal.

Petitioner filed his Brief[24] on April 6, 1998 while the brief[25] for the
respondent People of the Philippines was filed on August 27, 1998 through the
Office of the Solicitor General (OSG). Per Resolution[26] dated August 30,
2004, this Court referred the appeal to the CA for proper disposition and
determination pursuant to this Courts ruling in People v. Mateo.[27]

DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO

CONFRONT THE WITNESSES AGAINST HIM.

III
THE HONORABLE COURT OF APPEALS ERRED IN
NOT FINDING THAT THE PROSECUTIONS
EVIDENCE FAILED TO ESTABLISH THE
EXISTENCE OF A CONSPIRACY.

Ruling of the Court of Appeals

On June 16, 2006, the CA denied the appeal and affirmed the Decision of the
RTC. While conceding that petitioners constitutional right to counsel during the
custodial investigation was indeed violated, it nevertheless went on to hold that
there were other evidence sufficient to warrant his conviction. The CA also
rebuked petitioners claim that he was deprived of his constitutional and statutory
right to confront the witnesses against him. The CA gave credence to the
testimonies of the prosecution witnesses and quoted with favor the trial courts
ratiocination regarding the existence of conspiracy among the accused.

IV
THE HONORABLE COURT OF APPEALS ERRED IN
NOT FINDING THAT THE PROSECUTION FAILED
TO PRESENT PROOF BEYOND REASONABLE
DOUBT AS TO OVERTURN THE PRESUMPTION OF
INNOCENCE ACCORDED TO PETITIONER BY THE
CONSTITUTION.[30]

Undeterred, petitioner filed a Motion for Reconsideration[28] which the CA

denied in its Resolution[29] dated January 16, 2007.
OUR RULING
Hence, this petition for review on certiorari anchored on the following grounds:

I
WHILE ACKNOWLEDGING THAT PETITIONER
WAS DEPRIVED OF HIS CONSTITUTIONAL AND
STATUTORY RIGHTS UNDER CUSTODIAL
INVESTIGATION BOTH BY THE CUSTOMS
OFFICIALS AND BY THE NBI INVESTIGATORS,
THE HONORABLE COURT OF APPEALS ERRED IN
NOT EXCLUDING EVIDENCE TAKEN DURING
THE CUSTODIAL INVESTIGATION.

II
THE HONORABLE COURT OF APPEALS ERRED IN
NOT CONSIDERING THAT PETITIONER WAS

The petition lacks merit.

Section 12,
Article III of
the
Constitution
prohibits as
evidence only
confessions
and
admissions of
the accused
as
against
himself.
128

Anent the error first assigned, petitioner takes issue on the fact that he was not
assisted by a competent and independent lawyer during the custodial
investigation. He claimed that he was not duly informed of his rights to remain
silent and to have competent counsel of his choice. Hence, petitioner faults the
CA in not excluding evidence taken during such investigation.

While there is no dispute that petitioner was subjected to all the rituals
of a custodial questioning by the customs authorities and the NBI in violation of
his constitutional right under Section 12[31] of Article III of the Constitution, we
must not, however, lose sight of the fact that what said constitutional provision
prohibits as evidence are only confessions and admissions of the accused as
against himself. Thus, in Aquino v. Paiste,[32] the Court categorically ruled that
the infractions of the so-called Miranda rights render inadmissible only the
extrajudicial confession or admission made during custodial investigation. The
admissibility of other evidence, provided they are relevant to the issue and [are]
not otherwise excluded by law or rules, [are] not affected even if obtained or
taken in the course of custodial investigation.

In the case at bench, petitioner did not make any confession or admission during
his custodial investigation. The prosecution did not present any extrajudicial
confession extracted from him as evidence of his guilt. Moreover, no statement
was taken from petitioner during his detention and subsequently used in evidence
against him. Verily, in determining the guilt of the petitioner and his co-accused,
the trial court based its Decision on the testimonies of the prosecution witnesses
and on the existence of the confiscated shabu. As the Court held in People v.
Buluran,[33] [a]ny allegation of violation of rights during custodial investigation
is relevant and material only to cases in which an extrajudicial admission or
confession extracted from the accused becomes the basis of their
conviction. Hence, petitioners claim that the trial court erred in not excluding
evidence taken during the custodial investigation deserves scant consideration.

Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen
Ming[34] to exculpate himself from the crime charged. Though there are
semblance in the facts, the case of Ming is not exactly on all fours with the
present case. The disparity is clear from the evidence adduced upon which the
trial courts in each case relied on in rendering their respective
decisions. Apparently in Ming, the trial court, in convicting the accused, relied
heavily on the signatures which they affixed on the boxes of Alpen Cereals and
on the plastic bags. The Court construed the accuseds act of affixing their
signatures thereon as a tacit admission of the crime charged. And, since the
accused were not informed of their Miranda rights when they affixed their
signatures, the admission was declared inadmissible evidence for having been

obtained in violation of their constitutional rights. In ruling against the accused,

the trial court also gave credence to the sole testimony of the customs examiner
whom it presumed to have performed his duties in regular manner. However, in
reversing the judgment of conviction, the Court noted that said examiners
testimony was not corroborated by other prosecution witnesses.

may proceed notwithstanding the absence of the accused

provided that he has been duly notified and his failure to
appear is unjustifiable.

On the other hand, petitioners conviction in the present case was on

the
strength
of
his
having
been
caught in flagrante
delicto transporting shabu into the country and not on the basis of any confession
or admission. Moreover, the testimony of Cinco was found to be direct, positive
and credible by the trial court, hence it need not be corroborated. Cinco witnessed
the entire incident thus providing direct evidence as eyewitness to the very act of
the commission of the crime. As the Court held in People v Dela Cruz,[35] [n]o
rule exists which requires a testimony to be corroborated to be adjudged credible.
x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of
the testimony of a single witness despite the lack of corroboration, where such
testimony is found positive and credible by the trial court. In such a case, the lone
testimony is sufficient to produce a conviction.

Petitioner asserts that he was deprived of his right to know and understand what
the witnesses testified to. According to him, only a full understanding of what the
witnesses would testify to would enable an accused to comprehend the evidence
being offered against him and to refute it by cross-examination or by his own
countervailing evidence.

Indeed, a ruling in one case cannot simply be bodily lifted and applied to another
case when there are stark differences between the two cases. Cases must be
decided based on their own unique facts and applicable law and jurisprudence.

Petitioner was
not denied of
his right to
confrontation.

Turning now to the second assigned error, petitioner invokes the pertinent
provision of Section 14(2) of Article III of the 1987 Philippine Constitution
providing for the right to confrontation, viz:

Section 14. x x x

(2) In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial

In refutation, the OSG countered that petitioner was given the opportunity to
confront his accusers and/or the witnesses of the prosecution when his counsel
cross-examined them. It is petitioners call to hire an interpreter to understand the
proceedings before him and if he could not do so, he should have manifested it
before the court. At any rate, the OSG contends that petitioner was nevertheless
able to cross-examine the prosecution witnesses and that such examination
suffices as compliance with petitioners right to confront the witnesses against
him.

We agree with the OSG.

As borne out by the records, petitioner did not register any objection to the
presentation of the prosecutions evidence particularly on the testimony of Cinco
despite the absence of an interpreter. Moreover, it has not been shown that the
lack of an interpreter greatly prejudiced him. Still and all, the important thing is
that petitioner, through counsel, was able to fully cross-examine Cinco and the
other witnesses and test their credibility. The right to confrontation is essentially a
guarantee that a defendant may cross-examine the witnesses of the
prosecution. In People v. Libo-on,[36] the Court held:

The right to confrontation is one of the fundamental rights

guaranteed by the Constitution to the person facing
criminal prosecution who should know, in fairness, who his
accusers are and must be given a chance to cross-examine
them on their charges. The chief purpose of the right of
confrontation is to secure the opportunity for crossexamination, so that if the opportunity for crossexamination has been secured, the function and test of
confrontation has also been accomplished, the
confrontation being merely the dramatic preliminary to
cross-examination.
129

and methodically planned conspiracy with all the accused

assiduously cooperating and mutually helping each other in
order to ensure its success.[37]
Under the circumstances obtaining, petitioners constitutional right to confront the
witnesses against him was not impaired.

Conspiracy
among
the
accused was
duly
established.

Respecting the third assigned error, we uphold the trial courts finding
of conspiracy which was quoted by the appellate court in its assailed Decision,
and which we once again herein reproduce with approval:

On the allegation of conspiracy, the Court finds [no] direct

evidence to conclude conspiracy. However, just like in
other cases where conspiracy is not usually established by
direct evidence but by circumstantial evidence, the Court
finds that there are enough circumstantial evidence which if
taken together sufficiently prove conspiracy. First, it cannot
be denied that the accused somehow have known each
other prior to their [departure] in Hong Kong for Manila.
Although Law Ka Wang denied having known any of the
accused prior to the incident in NAIA, accused Ho Wai
Pang identified him as the one who assisted him in the
supposed tour in the Philippines to the extent of directly
dealing with the travel agency and [that] Law Ka Wang
was the one who received the personal things of Ho Wai
Pang allegedly to be place[d] in a bag provided for by the
travel agency. Accused Wu Hing Sum has been known to
accused Ho Kin San for about two to three years as they
used to work as cooks in a restaurant in Hong Kong.
Accused Ho Wai Ling, who is still at large, is know[n] to
accused Chan Chit Yue, Wu Hing Sum and Ho Kin San.
These relationships in a way can lead to the presumption
that they have the capability to enter into a conspiracy.
Second, all the illegal substances confiscated from the six
accused were contained in chocolate boxes of similar sizes
and almost the same weight all contained in their luggages.
The Court agrees with the finding of the trial prosecutor
that under the given circumstances, the offense charged
[c]ould have been perpetrated only through an elaborate

slight clash in Cincos statements neither dilute her credibility nor the veracity of
her testimony.

The trial courts words on this matter when it resolved petitioners Demurrer to
Evidence in its Order[44] of February 16, 1993 is quite enlightening. Thus
We find no cogent reason to reverse such findings.

Conspiracy is [the] common design to commit a felony.

[38] [C]onspiracy which determines criminal culpability need not entail a close
personal association or at least an acquaintance between or among the participants
to a crime.[39] It need not be shown that the parties actually came together and
agreed in express terms to enter into and pursue a common design.[40] The
assent of the minds may be and, from the secrecy of the crime, usually inferred
from proof of facts and circumstances which, taken together, indicate that they are
parts of some complete whole as we ruled in People v. Mateo, Jr.[41] Here, it
can be deduced from petitioner and his co-accuseds collective conduct, viewed in
its totality, that there was a common design, concerted action and concurrence of
sentiments in bringing about the crime committed.

Petitioners
guilt
was
proved
beyond
reasonable
doubt.

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond
reasonable doubt. He makes capital on the contention that no chocolate boxes
were found in his traveling bag when it was examined at the ICU. He claimed
that it was his co-accused Sonny Wong who took charge in ascribing upon him
the possession of the two chocolate boxes.

Petitioners contentions fail to persuade.

True, when principal prosecution witness Cinco first testified on June 3, 1992, she
declared that she did not see any chocolate boxes but only personal effects in
petitioners bag.[42] Nonetheless, she clarified in her succeeding testimony that
she recalls taking the two chocolate boxes from petitioners bag when they were
still at the counter. This sufficiently explained why Cinco did not find any
chocolate boxes from petitioners bag when they were at the ICU.[43] To us, this

In claiming that the evidences [sic] presented by the

prosecution is insufficient to command conviction, the
Demurrer went on to say that the testimony of Hilda Cinco
is either conjectural or hearsay and definitely missed its
mark in incriminating accused, Ho Wai Pang, because she
even testified that she found nothing inside the hand-carried
luggage of Ho Wai Pang (pp. 48-49, TSN, June 3,
1992). But that was when investigation was going on at the
Intensive Counting Unit (ICU). However, the same Hilda
Cinco later on testified that from the express lane in going
to the ICU, after the discovery of shabu, she was already
carrying with her four (4) chocolate boxes, two of [which]
taken from the bag of Tin Sun Mau and the other two
retrieved from the luggage of herein movant, Ho Wai Pang.
Categorically, Cinco admitted it was the reason that at the
ICU, Ho Wai Pangs bag was already empty (pp. 53-54,
TSN, June 3, 1992), but she nonetheless recognized the
bag and could recall the owner thereof, pointing to Ho Wai
Pang. Such testimony is not hearsay evidence. They are
facts from the personal perception of the witness and out of
her personal knowledge. Neither is it conjectural.[45]

Jurisprudence teaches that in assessing the credibility of a witness, his testimony

must be considered in its entirety instead of in truncated parts. The technique in
deciphering a testimony is not to consider only its isolated parts and anchor a
conclusion on the basis of said parts. In ascertaining the facts established by a
witness, everything stated by him on direct, cross and redirect examinations must
be calibrated and considered.[46] Also, where there is nothing in the records
which would show a motive or reason on the part of the witnesses to falsely
implicate the accused, identification should be given full weight. Here, petitioner
presented no evidence or anything to indicate that the principal witness for the
prosecution, Cinco, was moved by any improper motive, hence her testimony is
entitled to full faith and credit.

Verily, the evidence adduced against petitioner is so overwhelming that this Court
is convinced that his guilt has been established beyond reasonable doubt. Nothing
else can speak so eloquently of his culpability than the unassailable fact that he
130

was caught red-handed in the very act of transporting, along with his coaccused, shabu into the country. In stark contrast, the evidence for the defense
consists mainly of denials.

Petitioner tried to show that he was not aware of the shabu inside his
luggage considering that his bag was provided by the travel agency. However, it
bears stressing that the act of transporting a prohibited drug is
a malum prohibitum because it is punished as an offense under a special law. As
such, the mere commission of the act is what constitutes the offense punished and
same suffices to validly charge and convict an individual caught committing the
act so punished regardless of criminal intent. Moreover, beyond his bare denials,
petitioner has not presented any plausible proof to successfully rebut the evidence
for the prosecution. It is basic that affirmative testimony of persons who are
eyewitnesses of the events or facts asserted easily overrides negative testimony.
[47]

All told, we are convinced that the courts below committed no error in adjudging
petitioner guilty of transporting methamphetamine hydrochloride or shabu into
the country in violation of Section 15, Article III of R.A. No. 6425, as amended.

We agree. In People v. Doroja,[50] we held:

Associate Justice

In People v. Martin Simon (G.R. No. 93028, 29 July 1994)

this Court ruled (a) that the amendatory law, being more
lenient and favorable to the accused than the original
provisions of the Dangerous Drugs Act, should be
accorded retroactive application, x x x.

MARTIN S. VILLARAMA, JR.

Associate Justice

Associate Justice

C E R T I F I C AT I O N
And, since reclusion perpetua is a lighter penalty than life imprisonment, and
considering the rule that criminal statutes with a favorable effect to the accused,
have, as to him, a retroactive effect,[51] the penalty imposed by the trial court
upon petitioner is proper. Consequently, the Court sustains the penalty of
imprisonment, which is reclusion perpetua, as well as the amount of fine
imposed by the trial court upon petitioner, the same being more favorable to him.

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justic

WHEREFORE premises considered, the petition is DENIED and the

assailed June 16, 2006 Decision and January 16, 2007 Resolution of the Court of
Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED.

Penalty
SO ORDERED.
As to the penalties imposed by the trial court and as affirmed by the
appellate court, we find the same in accord with law and jurisprudence. It should
be recalled that at the time of the commission of the crime on September 6, 1991,
Section 15 of R.A. No. 6425 was already amended by Presidential Decree No.
1683.[48] The decree provided that for violation of said Section 15, the penalty of
life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00
shall be imposed. Subsequently, however, R.A. No. 7659[49] further introduced
new amendments to Section 15, Article III and Section 20, Article IV of R.A. No.
6425, as amended. Under the new amendments, the penalty prescribed in Section
15 was changed from life imprisonment to death and a fine ranging
from P20,000.00 to P30,000.00 to reclusion perpetua to death and a fine ranging
from P500,000.00 to P10 million. On the other hand, Section 17 of R.A. No.
7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty
provided by the amendatory law shall be applied depending on the quantity of the
dangerous drugs involved.

The trial court, in this case, imposed on petitioner the penalty

of reclusion perpetua under R.A. No. 7659 rather than life imprisonment
ratiocinating that R.A. No. 7659 could be given retroactive application, it being
more favorable to the petitioner in view of its having a less stricter punishment.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO

LUCAS P. BERSAMIN
131

SECOND DIVISION
G.R. No. L-69809 October 16, 1986
EDGARDO
A.
GAANAN, Petitioner,
vs. INTERMEDIATE
APPELLATE
COURT
and
PEOPLE
OF
THE
PHILIPPINES, Respondents.chanrobles virtual law library
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act
(RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the
issue of whether or not an extension telephone is among the prohibited
devices in Section 1 of the Act, such that its use to overhear a private
conversation would constitute unlawful interception of communications
between
the
two
parties
using
a
telephone
line.chanroblesvirtualawlibrarychanrobles virtual law library
The facts presented by the People and narrated in the respondent court's
decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and
his client Manuel Montebon were in the living room of complainant's
residence discussing the terms for the withdrawal of the complaint for
direct assault which they filed with the Office of the City Fiscal of Cebu
against Leonardo Laconico. After they had decided on the proposed
conditions, complainant made a telephone call to Laconico (tsn, August
26, 1981, pp. 3-5).chanroblesvirtualawlibrarychanrobles virtual law
library
That same morning, Laconico telephoned appellant, who
is a lawyer, to come to his office and advise him on the
settlement of the direct assault case because his regular
lawyer, Atty. Leon Gonzaga, went on a business trip.
According to the request, appellant went to the office of
Laconico where he was briefed about the problem.
(Exhibit 'D', tsn, April 22, 1982, pp. 45).chanroblesvirtualawlibrarychanrobles virtual law
library
When complainant called up, Laconico requested
appellant to secretly listen to the telephone conversation
through a telephone extension so as to hear personally
the proposed conditions for the settlement. Appellant
heard complainant enumerate the following conditions
for withdrawal of the complaint for direct
assault.chanroblesvirtualawlibrarychanrobles virtual law
library
(a) the P5,000.00 was no longer acceptable, and that the
figure had been increased to P8,000.00. A breakdown of
the P8,000.00 had been made together with other
demands, to wit: (a) P5,000.00 no longer for the teacher

Manuel Montebon, but for Atty. Pintor himself in

persuading his client to withdraw the case for Direct
Assault against Atty. Laconico before the Cebu City
Fiscal's Office;chanrobles virtual law library
(b) Public apology to be made by Atty. Laconico before
the students of Don Bosco Technical High
School;chanrobles virtual law library
(c) Pl,000.00 to be given to the Don Bosco Faculty
club;chanrobles virtual law library
(d) transfer of son of Atty. Laconico to another school or
another section of Don Bosco Technical High
School;chanrobles virtual law library
(e) Affidavit of desistance by Atty. Laconico on the
Maltreatment case earlier filed against Manuel Montebon
at the Cebu City Fiscal's Office, whereas Montebon's
affidavit of desistance on the Direct Assault Case against
Atty. Laconico to be filed later;chanrobles virtual law
library
(f) Allow Manuel Montebon to continue teaching at the
Don Bosco Technical School;chanrobles virtual law
library
(g) Not to divulge the truth about the settlement of the
Direct Assault Case to the mass media;chanrobles virtual
law library
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn,
August
26,
1981,
pp.
4748).chanroblesvirtualawlibrarychanrobles virtual law
library
Twenty minutes later, complainant called up again to ask
Laconico if he was agreeable to the conditions. Laconico
answered 'Yes'. Complainant then told Laconico to wait
for instructions on where to deliver the money. (tsn,
March
10,
1983,
pp.
212).chanroblesvirtualawlibrarychanrobles virtual law
library
Complainant called up again and instructed Laconico to
give the money to his wife at the office of the then
Department of Public Highways. Laconico who earlier
alerted his friend Colonel Zulueta of the Criminal
Investigation Service of the Philippine Constabulary,
insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he
received the money at the Igloo Restaurant, complainant
was arrested by agents of the Philippine

Constabulary.chanroblesvirtualawlibrarychanrobles
virtual law library
Appellant executed on the following day an affidavit
stating that he heard complainant demand P8,000.00 for
the withdrawal of the case for direct assault. Laconico
attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant.
Since appellant listened to the telephone conversation
without complainant's consent, complainant charged
appellant and Laconico with violation of the AntiWiretapping Act.
After trial on the merits, the lower court, in a decision dated November
22, 1982, found both Gaanan and Laconico guilty of violating Section 1
of Republic Act No. 4200. The two were each sentenced to one (1) year
imprisonment with costs. Not satisfied with the decision, the petitioner
appealed to the appellate court.chanroblesvirtualawlibrarychanrobles
virtual law library
On August 16, 1984, the Intermediate Appellate Court affirmed the
decision of the trial court, holding that the communication between the
complainant and accused Laconico was private in nature and, therefore,
covered by Rep. Act No. 4200; that the petitioner overheard such
communication without the knowledge and consent of the complainant;
and that the extension telephone which was used by the petitioner to
overhear the telephone conversation between complainant and Laconico
is covered in the term "device' as provided in Rep. Act No.
4200.chanroblesvirtualawlibrarychanrobles virtual law library
In this petition for certiorari, the petitioner assails the decision of the
appellate court and raises the following issues; (a) whether or not the
telephone conversation between the complainant and accused Laconico
was private in nature; (b) whether or not an extension telephone is
covered by the term "device or arrangement" under Rep. Act No. 4200;
(c) whether or not the petitioner had authority to listen or overhear said
telephone conversation and (d) whether or not Rep. Act No. 4200 is
ambiguous and, therefore, should be construed in favor of the
petitioner.chanroblesvirtualawlibrarychanrobles virtual law library
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all
the parties to any private communication or spoken word, to tap any wire
or cable or by using any other device or arrangement, to secretly
overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:chanrobles virtual law library
It shall be unlawful for any person, be he a participant or
not in the act or acts penalized in the next preceeding
132

sentence, to knowingly possess any tape record, wire

record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured
either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for
any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to
furnish transcriptions thereof, whether complete or
partial, to any other person: Provided, that the use of
such record or any copies thereof as evidence in any
civil, criminal investigation or trial of offenses
mentioned in Section 3 hereof, shall not be covered by
this prohibition.
We rule for the petitioner.chanroblesvirtualawlibrarychanrobles virtual
law library
We are confronted in this case with the interpretation of a penal statute
and not a rule of evidence. The issue is not the admissibility of evidence
secured over an extension line of a telephone by a third party. The issue
is whether or not the person called over the telephone and his lawyer
listening to the conversation on an extension line should both face prison
sentences simply because the extension was used to enable them to both
listen
to
an
alleged
attempt
at
extortion.chanroblesvirtualawlibrarychanrobles virtual law library
There is no question that the telephone conversation between
complainant Atty. Pintor and accused Atty. Laconico was "private" in the
sense that the words uttered were made between one person and another
as distinguished from words between a speaker and a public. It is also
undisputed that only one of the parties gave the petitioner the authority
to listen to and overhear the caller's message with the use of an extension
telephone line. Obviously, complainant Pintor, a member of the
Philippine bar, would not have discussed the alleged demand for an
P8,000.00 consideration in order to have his client withdraw a direct
assault charge against Atty. Laconico filed with the Cebu City Fiscal's
Office if he knew that another lawyer was also listening. We have to
consider, however, that affirmance of the criminal conviction would, in
effect, mean that a caller by merely using a telephone line can force the
listener to secrecy no matter how obscene, criminal, or annoying the call
may be. It would be the word of the caller against the
listener's.chanroblesvirtualawlibrarychanrobles virtual law library
Because of technical problems caused by the sensitive nature of
electronic equipment and the extra heavy loads which telephone cables
are made to carry in certain areas, telephone users often encounter what
are called "crossed lines". An unwary citizzen who happens to pick up
his telephone and who overhears the details of a crime might hesitate to
inform police authorities if he knows that he could be accused under
Rep. Act 4200 of using his own telephone to secretly overhear the
private communications of the would be criminals. Surely the law was

never
intended
for
such
mischievous
results.chanroblesvirtualawlibrarychanrobles virtual law library
The main issue in the resolution of this petition, however, revolves
around the meaning of the phrase "any other device or arrangement." Is
an extension of a telephone unit such a device or arrangement as would
subject the user to imprisonment ranging from six months to six years
with the accessory penalty of perpetual absolute disqualification for a
public officer or deportation for an alien? Private secretaries with
extension lines to their bosses' telephones are sometimes asked to use
answering or recording devices to record business conversations between
a boss and another businessman. Would transcribing a recorded message
for the use of the boss be a proscribed offense? or for that matter, would
a "party line" be a device or arrangement under the law?chanrobles
virtual law library
The petitioner contends that telephones or extension telephones are not
included in the enumeration of "commonly known" listening or
recording devices, nor do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains that in 1964, when
Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the
Senate, telephones and extension telephones were already widely used
instruments, probably the most popularly known communication
device.chanroblesvirtualawlibrarychanrobles virtual law library
Whether or not listening over a telephone party line would be punishable
was discussed on the floor of the Senate. Yet, when the bill was finalized
into a statute, no mention was made of telephones in the enumeration of
devices "commonly known as a dictaphone or dictagraph, detectaphone
or walkie talkie or tape recorder or however otherwise described." The
omission was not a mere oversight. Telephone party lines were
intentionally
deleted
from
the
provisions
of
the
Act.chanroblesvirtualawlibrarychanrobles virtual law library
The respondent People argue that an extension telephone is embraced
and covered by the term "device" within the context of the
aforementioned law because it is not a part or portion of a complete set
of a telephone apparatus. It is a separate device and distinct set of a
movable apparatus consisting of a wire and a set of telephone receiver
not forming part of a main telephone set which can be detached or
removed and can be transferred away from one place to another and to
be plugged or attached to a main telephone line to get the desired
communication
corning
from
the
other
party
or
end.chanroblesvirtualawlibrarychanrobles virtual law library
The law refers to a "tap" of a wire or cable or the use of a "device or
arrangement" for the purpose of secretly overhearing, intercepting, or
recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the spoken
words.chanroblesvirtualawlibrarychanrobles virtual law library

An extension telephone cannot be placed in the same category as a

dictaphone, dictagraph or the other devices enumerated in Section 1 of
RA No. 4200 as the use thereof cannot be considered as "tapping" the
wire or cable of a telephone line. The telephone extension in this case
was not installed for that purpose. It just happened to be there for
ordinary office use. It is a rule in statutory construction that in order to
determine the true intent of the legislature, the particular clauses and
phrases of the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be considered in
fixing the meaning of any of its parts. (see Commissioner of Customs v.
Esso
Estandard
Eastern,
Inc.,
66
SCRA
113,120).chanroblesvirtualawlibrarychanrobles virtual law library
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general
the terms of a contract may be, they shall not be understood to
comprehend things that are distinct and cases that are different from
those upon which the parties intended to agree.' Similarly, Article 1374
of the same Code provides that 'the various stipulations of a contract
shall be interpreted together, attributing to the doubtful ones that sense
which
may
result
from
all
of
them
taken
jointly.chanroblesvirtualawlibrarychanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
Consequently, the phrase 'all liabilities or obligations of
the decedent' used in paragraph 5(c) and 7(d) should be
then restricted only to those listed in the Inventory and
should not be construed as to comprehend all other
obligations of the decedent. The rule that
'particularization followed by a general expression will
ordinarily be restricted to the former' is based on the fact
in human experience that usually the minds of parties are
addressed specially to the particularization, and that the
generalities, though broad enough to comprehend other
fields if they stood alone, are used in contemplation of
that upon which the minds of the parties are centered.
(Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis.
603, 607, 115 NW 383, cited in Francisco, Revised Rules
of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200,
although not exclusive to that enumerated therein, should be construed to
comprehend instruments of the same or similar nature, that is,
instruments the use of which would be tantamount to tapping the main
line of a telephone. It refers to instruments whose installation or presence
cannot be presumed by the party or parties being overheard because, by
their very nature, they are not of common usage and their purpose is
133

precisely for tapping, intercepting or recording a telephone

conversation.chanroblesvirtualawlibrarychanrobles virtual law library
An extension telephone is an instrument which is very common
especially now when the extended unit does not have to be connected by
wire to the main telephone but can be moved from place ' to place within
a radius of a kilometer or more. A person should safely presume that the
party he is calling at the other end of the line probably has an extension
telephone and he runs the risk of a third party listening as in the case of a
party line or a telephone unit which shares its line with another. As was
held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d
137-138):
Common experience tells us that a call to a particular telephone number
may cause the bell to ring in more than one ordinarily used instrument.
Each party to a telephone conversation takes the risk that the other party
may have an extension telephone and may allow another to overhear the
conversation. When such takes place there has been no violation of any
privacy of which the parties may complain. Consequently, one element
of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party
would differ in no way if instead of repeating the message he held out
his hand-set so that another could hear out of it and that there is no
distinction between that sort of action and permitting an outsider to use
an
extension
telephone
for
the
same
purpose.chanroblesvirtualawlibrarychanrobles virtual law library
Furthermore, it is a general rule that penal statutes must be construed
strictly in favor of the accused. Thus, in case of doubt as in the case at
bar, on whether or not an extension telephone is included in the phrase
"device or arrangement", the penal statute must be construed as not
including an extension telephone. In the case of People v. Purisima, 86
SCRA 542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the
tenderness of the law of the rights of individuals; the object is to
establish a certain rule by conformity to which mankind would be safe,
and the discretion of the court limited. (United States v. Harris, 177 US
305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d
646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v.
Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452).
The purpose is not to enable a guilty person to escape punishment
through a technicality but to provide a precise definition of forbidden
acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on
Statutory Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or
interpretation of a legislative measure, the primary rule is to search for
and determine the intent and spirit of the law. A perusal of the Senate
Congressional Records will show that not only did our lawmakers not
contemplate the inclusion of an extension telephone as a prohibited

device or arrangement" but of greater importance, they were more

concerned with penalizing the act of recording than the act of merely
listening to a telephone conversation.
xxx xxx xxx
Senator Taada. Another possible
objection to that is entrapment which is
certainly objectionable. It is made
possible by special amendment which
Your
Honor
may
introduce.chanroblesvirtualawlibrarychan
robles virtual law library
Senator Diokno.Your Honor, I would feel
that entrapment would be less possible
with the amendment than without it,
because with the amendment the
evidence of entrapment would only
consist of government testimony as
against the testimony of the defendant.
With this amendment, they would have
the right, and the government officials
and the person in fact would have the
right
to
tape
record
their
conversation.chanroblesvirtualawlibraryc
hanrobles virtual law library
Senator Taada. In case of entrapment, it
would
be
the
government.chanroblesvirtualawlibraryc
hanrobles virtual law library
Senator Diokno. In the same way, under
this provision, neither party could record
and, therefore, the court would be limited
to saying: "Okay, who is more credible,
the police officers or the defendant?" In
these cases, as experienced lawyers, we
know that the Court go with the peace
offices.chanroblesvirtualawlibrarychanro
bles virtual law library

of checking it. But if you allow him to

record or make a recording in any form
of what is happening, then the chances of
falsifying the evidence is not very
much.chanroblesvirtualawlibrarychanrob
les virtual law library
Senator Taada. Your Honor, this bill is
not intended to prevent the presentation
of false testimony. If we could devise a
way by which we could prevent the
presentation of false testimony, it would
be wonderful. But what this bill intends
to prohibit is the use of tape record and
other electronic devices to intercept
private conversations which later on will
be
used
in
court.chanroblesvirtualawlibrarychanrobl
es virtual law library
(Congressional Record, Vol. III, No. 33,
March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through
punishment, persons such as government authorities or representatives of
organized groups from installing devices in order to gather evidence for
use in court or to intimidate, blackmail or gain some unwarranted
advantage over the telephone users. Consequently, the mere act of
listening, in order to be punishable must strictly be with the use of the
enumerated devices in RA No. 4200 or others of similar nature. We are
of the view that an extension telephone is not among such devices or
arrangements.chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, the petition is GRANTED. The decision of the then
Intermediate Appellate Court dated August 16, 1984 is ANNULLED and
SET ASIDE. The petitioner is hereby ACQUITTED of the crime of
violation of Rep. Act No. 4200, otherwise known as the AntiWiretapping Act.chanroblesvirtualawlibrary chanrobles virtual law
library
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

(Congressional Record, Vol. 111, No. 33,

p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind
is that under these conditions, with an
agent outside listening in, he could
falsify the testimony and there is no way
134

135

[Footnote 8] But this effort to decide whether or not a given "area,"

viewed in the abstract, is "constitutionally protected" deflects attention
from the problem presented by this case. [Footnote 9] For the Fourth
Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection. See Lewis v. United States, 385 U. S.
206, 385 U. S. 210; United States v. Lee, 274 U. S. 559, 274 U. S. 563.
But what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

The petitioner was convicted in the District Court for the Southern
District of California under an eight-count indictment charging him with
transmitting wagering information by telephone from Los Angeles to
Miami and Boston, in violation of a federal statute. [Footnote 1] At trial,
the Government was permitted, over the petitioner's objection, to
introduce evidence of the petitioner's end of telephone conversations,
overheard by FBI agents who had attached an electronic listening and
recording device to the outside of the public telephone booth from which
he had placed his calls. In affirming his conviction, the Court of Appeals
rejected the contention that the recordings had been obtained in violation
of the Fourth Amendment,

FOR THE NINTH CIRCUIT

Page 389 U. S. 349

See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S.

727, 96 U. S. 733.

Syllabus

because "[t]here was no physical entrance into the area occupied by [the
petitioner]." [Footnote 2] We granted certiorari in order to consider the
constitutional questions thus presented. [Footnote 3]

Katz v. United States, 389 U.S. 347 (1967)

Katz v. United States
No. 35
Argued October 17, 1967
Decided December 18, 1967
389 U.S. 347

Petitioner was convicted under an indictment charging him with

transmitting wagering information by telephone across state lines in
violation of 18 U.S.C. 1084. Evidence of petitioner's end of the
conversations, overheard by FBI agents who had attached an electronic
listening and recording device to the outside of the telephone booth from
which the calls were made, was introduced at the trial. The Court of
Appeals affirmed the conviction, finding that there was no Fourth
Amendment violation, since there was "no physical entrance into the
area occupied by" petitioner.
Held:
1. The Government's eavesdropping activities violated the privacy upon
which petitioner justifiably relied while using the telephone booth, and
thus constituted a "search and seizure" within the meaning of the Fourth
Amendment. Pp. 389 U. S. 350-353.
(a) The Fourth Amendment governs not only the seizure of tangible
items, but extends as well to the recording of oral statements. Silverman
v. United States, 365 U. S. 505, 365 U. S. 511. P. 389 U. S. 353.
(b) Because the Fourth Amendment protects people, rather than places,
its reach cannot turn on the presence or absence of a physical intrusion
into any given enclosure. The "trespass" doctrine of Olmstead v. United
States, 277 U. S. 438, and Goldman v. United States, 316 U. S. 129, is no
longer controlling. Pp. 389 U. S. 351, 389 U. S. 353.
2. Although the surveillance in this case may have been so narrowly
circumscribed that it could constitutionally have been authorized in
advance, it was not in fact conducted pursuant to the warrant procedure
which is a constitutional precondition of such electronic surveillance.
Pp. 389 U. S. 354-359.
369 F.2d 130, reversed.
Page 389 U. S. 348
MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner has phrased those questions as follows:

"A. Whether a public telephone booth is a constitutionally protected area
so that evidence obtained by attaching an electronic listening recording
device to the top of such a booth is obtained in violation of the right to
privacy of the user of the booth. "
Page 389 U. S. 350
"B. Whether physical penetration of a constitutionally protected area is
necessary before a search and seizure can be said to be violative of the
Fourth Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. In the first place, the
correct solution of Fourth Amendment problems is not necessarily
promoted by incantation of the phrase "constitutionally protected area."
Secondly, the Fourth Amendment cannot be translated into a general
constitutional "right to privacy." That Amendment protects individual
privacy against certain kinds of governmental intrusion, but its
protections go further, and often have nothing to do with privacy at all.
[Footnote 4] Other provisions of the Constitution protect personal
privacy from other forms of governmental invasion. [Footnote 5] But the
protection of a person's general right to privacy -- his right to be let alone
by other people [Footnote 6] -- is, like the

Page 389 U. S. 352

The Government stresses the fact that the telephone booth from which
the petitioner made his calls was constructed partly of glass, so that he
was as visible after he entered it as he would have been if he had
remained outside. But what he sought to exclude when he entered the
booth was not the intruding eye -- it was the uninvited ear. He did not
shed his right to do so simply because he made his calls from a place
where he might be seen. No less than an individual in a business office,
[Footnote 10] in a friend's apartment, [Footnote 11] or in a taxicab,
[Footnote 12] a person in a telephone booth may rely upon the protection
of the Fourth Amendment. One who occupies it, shuts the door behind
him, and pays the toll that permits him to place a call is surely entitled to
assume that the words he utters into the mouthpiece will not be broadcast
to the world. To read the Constitution more narrowly is to ignore the
vital role that the public telephone has come to play in private
communication.
The Government contends, however, that the activities of its agents in
this case should not be tested by Fourth Amendment requirements, for
the surveillance technique they employed involved no physical
penetration of the telephone booth from which the petitioner placed his
calls. It is true that the absence of such penetration was at one time
thought to foreclose further Fourth Amendment inquiry, Olmstead v.
United States, 277 U. S. 438, 277 U. S. 457, 277 U. S. 464, 277 U. S.
466; Goldman v. United States, 316 U. S. 129, 316 U. S. 134-136, for
that Amendment was thought to limit only searches and seizures of
tangible

Page 389 U. S. 351

Page 389 U. S. 353

protection of his property and of his very life, left largely to the law of
the individual States. [Footnote 7]

property. [Footnote 13] But "[t]he premise that property interests control
the right of the Government to search and seize has been
discredited." Warden v. Hayden, 387 U. S. 294, 387 U. S. 304. Thus,
although a closely divided Court supposed in Olmstead that surveillance
without any trespass and without the seizure of any material object fell
outside the ambit of the Constitution, we have since departed from the
narrow view on which that decision rested. Indeed, we have expressly
held that the Fourth Amendment governs not only the seizure of tangible
136

Because of the misleading way the issues have been formulated, the
parties have attached great significance to the characterization of the
telephone booth from which the petitioner placed his calls. The petitioner
has strenuously argued that the booth was a "constitutionally protected
area." The Government has maintained with equal vigor that it was not.

items, but extends as well to the recording of oral statements, overheard

without any "technical trespass under . . . local property law." Silverman
v. United States, 365 U. S. 505, 365 U. S. 511. Once this much is
acknowledged, and once it is recognized that the Fourth Amendment
protects people -- and not simply "areas" -- against unreasonable
searches and seizures, it becomes clear that the reach of that Amendment
cannot turn upon the presence or absence of a physical intrusion into any
given enclosure.
We conclude that the underpinnings of Olmstead and Goldman have
been so eroded by our subsequent decisions that the "trespass" doctrine
there enunciated can no longer be regarded as controlling. The
Government's activities in electronically listening to and recording the
petitioner's words violated the privacy upon which he justifiably relied
while using the telephone booth, and thus constituted a "search and
seizure" within the meaning of the Fourth Amendment. The fact that the
electronic device employed to achieve that end did not happen to
penetrate the wall of the booth can have no constitutional significance.
Page 389 U. S. 354
The question remaining for decision, then, is whether the search and
seizure conducted in this case complied with constitutional standards. In
that regard, the Government's position is that its agents acted in an
entirely defensible manner: they did not begin their electronic
surveillance until investigation of the petitioner's activities had
established a strong probability that he was using the telephone in
question to transmit gambling information to persons in other States, in
violation of federal law. Moreover, the surveillance was limited, both in
scope and in duration, to the specific purpose of establishing the contents
of the petitioner's unlawful telephonic communications. The agents
confined their surveillance to the brief periods during which he used the
telephone booth, [Footnote 14] and they took great care to overhear only
the conversations of the petitioner himself. [Footnote 15]
Accepting this account of the Government's actions as accurate, it is
clear that this surveillance was so narrowly circumscribed that a duly
authorized magistrate, properly notified of the need for such
investigation, specifically informed of the basis on which it was to
proceed, and clearly apprised of the precise intrusion it would entail,
could constitutionally have authorized, with appropriate safeguards, the
very limited search and seizure that the Government asserts, in fact, took
place. Only last Term we sustained the validity of
Page 389 U. S. 355
such an authorization, holding that, under sufficiently "precise and
discriminate circumstances," a federal court may empower government
agents to employ a concealed electronic device "for the narrow and
particularized purpose of ascertaining the truth of the . . . allegations" of
a "detailed factual affidavit alleging the commission of a specific
criminal offense." Osborn v. United States, 385 U. S. 323, 385 U. S. 329-

330. Discussing that holding, the Court in Berger v. New York,388 U. S.

41, said that "the order authorizing the use of the electronic device"
in Osborn "afforded similar protections to those . . . of conventional
warrants authorizing the seizure of tangible evidence." Through those
protections, "no greater invasion of privacy was permitted than was
necessary under the circumstances." Id. at 388 U. S. 57. [Footnote 16]
Here, too, a similar
Page 389 U. S. 356
judicial order could have accommodated "the legitimate needs of law
enforcement" [Footnote 17] by authorizing the carefully limited use of
electronic surveillance.
The Government urges that, because its agents relied upon the decisions
in Olmstead and Goldman, and because they did no more here than they
might properly have done with prior judicial sanction, we should
retroactively validate their conduct. That we cannot do. It is apparent that
the agents in this case acted with restraint. Yet the inescapable fact is that
this restraint was imposed by the agents themselves, not by a judicial
officer. They were not required, before commencing the search, to
present their estimate of probable cause for detached scrutiny by a
neutral magistrate. They were not compelled, during the conduct of the
search itself, to observe precise limits established in advance by a
specific court order. Nor were they directed, after the search had been
completed, to notify the authorizing magistrate in detail of all that had
been seized. In the absence of such safeguards, this Court has never
sustained a search upon the sole ground that officers reasonably expected
to find evidence of a particular crime and voluntarily confined their
activities to the least intrusive
Page 389 U. S. 357
means consistent with that end. Searches conducted without warrants
have been held unlawful "notwithstanding facts unquestionably showing
probable cause," Agnello v. United States, 269 U. S. 20, 269 U. S. 33,
for the Constitution requires "that the deliberate, impartial judgment of a
judicial officer . . . be interposed between the citizen and the
police. . . ."Wong Sun v. United States, 371 U. S. 471, 371 U. S. 481482. "Over and again, this Court has emphasized that the mandate of the
[Fourth] Amendment requires adherence to judicial processes," United
States v. Jeffers, 342 U. S. 48, 342 U. S. 51, and that searches conducted
outside the judicial process, without prior approval by judge or
magistrate, are per seunreasonable under the Fourth Amendment
[Footnote 18] -- subject only to a few specifically established and well
delineated exceptions. [Footnote 19]

Page 389 U. S. 358

Nor could the use of electronic surveillance without prior authorization
be justified on grounds of "hot pursuit." [Footnote 21] And, of course,
the very nature of electronic surveillance precludes its use pursuant to
the suspect's consent. [Footnote 22]
The Government does not question these basic principles. Rather, it
urges the creation of a new exception to cover this case. [Footnote 23] It
argues that surveillance of a telephone booth should be exempted from
the usual requirement of advance authorization by a magistrate upon a
showing of probable cause. We cannot agree. Omission of such
authorization
"bypasses the safeguards provided by an objective predetermination of
probable cause, and substitutes instead the far less reliable procedure of
an after-the-event justification for the . . . search, too likely to be subtly
influenced by the familiar shortcomings of hindsight judgment."
Beck v. Ohio, 379 U. S. 89, 379 U. S. 96. And bypassing a neutral
predetermination of the scope of a search leaves individuals secure from
Fourth Amendment
Page 389 U. S. 359
violations "only in the discretion of the police." Id. at 379 U. S. 97.
These considerations do not vanish when the search in question is
transferred from the setting of a home, an office, or a hotel room to that
of a telephone booth. Wherever a man may be, he is entitled to know that
he will remain free from unreasonable searches and seizures. The
government agents here ignored "the procedure of antecedent
justification . . . that is central to the Fourth Amendment," [Footnote 24]
a procedure that we hold to be a constitutional precondition of the kind
of electronic surveillance involved in this case. Because the surveillance
here failed to meet that condition, and because it led to the petitioner's
conviction, the judgment must be reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.

It is difficult to imagine how any of those exceptions could ever apply to

the sort of search and seizure involved in this case. Even electronic
surveillance substantially contemporaneous with an individual's arrest
could hardly be deemed an "incident" of that arrest. [Footnote 20]
137

138

United States v. White, 401 U.S. 745 (1971)

United States v. White

MR. JUSTICE BLACK concurred in the judgment for the reasons set
forth in his dissent in Katz v. United States, 389 U. S. 347,389 U. S. 364.
P. 401 U. S. 754.

Fourth Amendment and, in any event, erred in applying the Katz case to
events that occurred before that decision was rendered by this Court.
[Footnote 2]

No. 13

Page 401 U. S. 746

Page 401 U. S. 748

Argued November 10, 1969

MR. JUSTICE BRENNAN, to the extent that he joined in the Court's

judgment, concluded that Desist v. United States, supra,requires reversal
of the Court of Appeals' judgment. P. 401 U. S. 755.

WHITE, J., announced the Court's judgment, and delivered an opinion in

which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined.
BLACK, J., filed a statement concurring in the judgment, post, p. 401 U.
S. 754. BRENNAN, J., filed an opinion concurring in the
result, post, p. 401 U. S. 755. DOUGLAS, J., post, p. 401 U. S. 756,
HARLAN, J., post, p. 401 U. S. 768, and MARSHALL, J., post, p. 401
U. S. 795, filed dissenting opinions.

"unless there has been an official search and seizure of his person, or
such a seizure of his papers or his tangible material effects, or an actual
physical invasion of his house 'or curtilage' for the purpose of making a
seizure."

Reargued October 20, 1970

Decided April 5, 1971
401 U.S. 745
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Syllabus
Respondent was convicted in 1966 of narcotics violations following a
trial where evidence was admitted of certain incriminating statements of
respondent that were overheard by warrantless electronic eavesdropping
by Government agents by means of a transmitter which an informer
consented to wear during his meetings with respondent. The informer
could not be located at trial, and the trial court overruled objections to
the testimony of the agents who conducted the electronic surveillance.
Reading Katz v. United States, 389 U. S. 347 (1967), as overruling On
Lee v. United States, 343 U. S. 747 (1952), the Court of Appeals held
that the agents' testimony was impermissible under the Fourth
Amendment, and reversed respondent's conviction.

MR. JUSTICE WHITE announced the judgment of the Court and an

opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART,
and MR. JUSTICE BLACKMUN join.

Held: The judgment is reversed. Pp. 401 U. S. 748-756.

Page 401 U. S. 747

405 F.2d 838, reversed.

overheard by monitoring the frequency of a radio transmitter carried by

Jackson and concealed on his person. [Footnote 1] On four occasions,
the conversations took place in Jackson's home; each of these
conversations was overheard by an agent concealed in a kitchen closet
with Jackson's consent and by a second agent outside the house using a
radio receiver. Four other conversations -- one in respondent's home, one
in a restaurant, and two in Jackson's car -- were overheard by the use of
radio equipment. The prosecution was unable to locate and produce
Jackson at the trial, and the trial court overruled objections to the
testimony of the agents who conducted the electronic surveillance. The
jury returned a guilty verdict, and defendant appealed.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR.

JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded
that:
1. The Government's use of agents who themselves may reveal the
contents of conversations with an accused does not violate the Fourth
Amendment, and this Court's decision in Katz v. United States,
supra, does not disturb the rationale of On Lee, supra, in this respect, and
require a different result because the agent uses electronic equipment to
transmit the conversations to other agents. Pp. 401 U. S. 748-754.
2. The unavailability of the informant as a witness does not create any
Fourth Amendment issue. Pp. 401 U. S. 753-754.
3. Since the decision in Katz v. United States, supra, was not
retroactive, Desist v. United States, 394 U. S. 244, the Court of Appeals
erred in not adjudicating this case by the pre-Katz law established by On
Lee to the effect that the electronic surveillance did not involve a Fourth
Amendment violation. P. 401 U. S. 754.

In 1966, respondent James A. White was tried and convicted under two
consolidated indictments charging various illegal transactions in
narcotics violative of 26 U.S.C. 4705(a) and 21 U.S.C. 174. He was
fined and sentenced as a second offender to 25-year concurrent
sentences. The issue before us is whether the Fourth Amendment bars
from evidence the testimony of governmental agents who related certain
conversations which had occurred between defendant White and a
government informant, Harvey Jackson, and which the agents

The Court of Appeals read Katz v. United States, 389 U. S. 347 (1967),
as overruling On Lee v. United States, 343 U. S. 747(1952), and
interpreting the Fourth Amendment to forbid the introduction of the
agents' testimony in the circumstances of this case. Accordingly, the
court reversed, but without adverting to the fact that the transactions at
issue here had occurred before Katz was decided in this Court. In our
view, the Court of Appeals misinterpreted both the Katz case and the

Until Katz v. United States, neither wiretapping nor electronic

eavesdropping violated a defendant's Fourth Amendment rights

Olmstead v. United States, 277 U. S. 438, 277 U. S.

466 (1928); Goldman v. United States, 316 U. S. 129, 316 U. S. 135-136
(1942). But where "eavesdropping was accomplished by means of an
unauthorized physical penetration into the premises occupied" by the
defendant, although falling short of a "technical trespass under the local
property law," the Fourth Amendment was violated, and any evidence of
what was seen and heard, as well as tangible objects seized, was
considered the inadmissible fruit of an unlawful invasion. Silverman v.
United States, 365 U. S. 505, 365 U. S. 509, 511 (1961); see also Wong
Sun v. United States, 371 U. S. 471 (1963); Berger v. New York, 388 U.
S. 41, 388 U. S. 52 (1967); Alderman v. United States, 394 U. S.
165, 394 U. S. 177-178 (1969).
Katz v. United States, however, finally swept away doctrines that
electronic eavesdropping is permissible under the Fourth Amendment
unless physical invasion of a constitutionally protected area produced the
challenged evidence. In that case, government agents, without
petitioner's consent or knowledge, attached a listening device to the
outside of a public telephone booth and recorded the defendant's end of
his telephone conversations. In declaring the recordings inadmissible in
evidence in the absence of a warrant authorizing the surveillance, the
Court overruled Olmstead and Goldman and held that the absence of
physical intrusion into the telephone booth did not justify using
electronic devices in listening to and recording Katz' words, thereby
violating
Page 401 U. S. 749
the privacy on which he justifiably relied while using the telephone in
those circumstances.
The Court of Appeals understood Katz to render inadmissible against
White the agents' testimony concerning conversations that Jackson
broadcast to them. We cannot agree. Katz involved no revelation to the
Government by a party to conversations with the defendant, nor did the
Court indicate in any way that a defendant has a justifiable and
139

constitutionally protected expectation that a person with whom he is

conversing will not then or later reveal the conversation to the police.
Hoffa v. United States, 385 U. S. 293 (1966), which was left undisturbed
by Katz, held that, however strongly a defendant may trust an apparent
colleague, his expectations in this respect are not protected by the Fourth
Amendment when it turns out that the colleague is a government agent
regularly communicating with the authorities. In these circumstances,
"no interest legitimately protected by the Fourth Amendment is
involved," for that amendment affords no protection to "a wrongdoer's
misplaced belief that a person to whom he voluntarily confides his
wrongdoing will not reveal it." Hoffa v. United States, at 385 U. S. 302.
No warrant to "search and seize" is required in such circumstances, nor
is it when the Government sends to defendant's home a secret agent who
conceals his identity and makes a purchase of narcotics from the
accused, Lewis v. United States, 385 U. S. 206 (1966), or when the same
agent, unbeknown to the defendant, carries electronic equipment to
record the defendant's words and the evidence so gathered is later
offered in evidence. Lopez v. United States, 373 U. S. 427 (1963).
Conceding
that Hoffa,
Lewis, and Lopez remained
by Katz, [Footnote 3] the Court of Appeals nevertheless

unaffected

Page 401 U. S. 750

read both Katz and the Fourth Amendment to require a different result if
the agent not only records his conversations with the defendant, but
instantaneously transmits them electronically to other agents equipped
with radio receivers. Where this occurs, the Court of Appeals held, the
Fourth Amendment is violated, and the testimony of the listening agents
must be excluded from evidence.
To reach this result, it was necessary for the Court of Appeals to hold
that On Lee v. United States was no longer good law. In that case, which
involved facts very similar to the case before us, the Court first rejected
claims of a Fourth Amendment violation because the informer had not
trespassed when he entered the defendant's premises and conversed with
him. To this extent, the Court's rationale cannot survive Katz. See 389
U.S. at 389 U. S. 352-353. But the Court announced a second and
independent ground for its decision; for it went on to say that
overruling Olmstead and Goldman would be of no aid to On Lee, since
he
"was talking confidentially and indiscreetly with one he trusted, and he
was overheard. . . . It would be a dubious service to the genuine liberties
protected by the Fourth Amendment to make them bedfellows with
spurious liberties improvised by far-fetched analogies which would liken
eavesdropping on a conversation, with the connivance of one of the
parties, to an unreasonable search or seizure. We find no violation of the
Fourth Amendment here."

343 U.S. at 343 U. S. 753-754. We see no indication in Katz that the

Court meant to disturb that understanding of the Fourth Amendment or
to disturb the result reached in the On Lee case, [Footnote 4] nor are we
now inclined to overturn this view of the Fourth Amendment.
Page 401 U. S. 751
Concededly. a police agent who conceals his police connections may
write down for official use his conversations with a defendant and testify
concerning them without a warrant authorizing his encounters with the
defendant and without otherwise violating the latter's Fourth Amendment
rights. Hoffa v. United States, 385 U.S. at 385 U. S. 300-303. For
constitutional purposes, no different result is required if the agent,
instead of immediately reporting and transcribing his conversations with
defendant, either (1) simultaneously records them with electronic
equipment which he is carrying on his person, Lopez v. United States,
supra; (2) or carries radio equipment which simultaneously transmits the
conversations either to recording equipment located elsewhere or to
other agents monitoring the transmitting frequency. On Lee v. United
States, supra. If the conduct and revelations of an agent operating
without electronic equipment do not invade the defendant's
constitutionally justifiable expectations of privacy, neither does a
simultaneous recording of the same conversations made by the agent or
by others from transmissions received from the agent to whom the
defendant is talking and whose trustworthiness the defendant necessarily
risks.
Our problem is not what the privacy expectations of particular
defendants in particular situations may be or the extent to which they
may, in fact, have relied on the discretion of their companions. Very
probably, individual defendants neither know nor suspect that their
colleagues have gone or will go to the police or are carrying recorders or
transmitters. Otherwise, conversation would cease, and our problem with
these encounters would be nonexistent, or far different from those now
Page 401 U. S. 752
before us. Our problem, in terms of the principles announced in Katz, is
what expectations of privacy are constitutionally "justifiable" -- what
expectations the Fourth Amendment will protect in the absence of a
warrant. So far, the law permits the frustration of actual expectations of
privacy by permitting authorities to use the testimony of those associates
who, for one reason or another, have determined to turn to the police, as
well as by authorizing the use of informants in the manner exemplified
by Hoffa and Lewis. If the law gives no protection to the wrongdoer
whose trusted accomplice is or becomes a police agent, neither should it
protect him when that same agent has recorded or transmitted the
conversations which are later offered in evidence to prove the State's
case. See Lopez v. United States, 373 U. S. 427 (1963).
Inescapably, one contemplating illegal activities must realize and risk
that his companions may be reporting to the police. If he sufficiently

doubts their trustworthiness, the association will very probably end, or

never materialize. But if he has no doubts, or allays them, or risks what
doubt he has, the risk is his. In terms of what his course will be, what he
will or will not do or say, we are unpersuaded that he would distinguish
between probable informers, on the one hand, and probable informers
with transmitters, on the other. Given the possibility or probability that
one of his colleagues is cooperating with the police, it is only speculation
to assert that the defendant's utterances would be substantially different
or his sense of security any less if he also thought it possible that the
suspected colleague is wired for sound. At least there is no persuasive
evidence that the difference in this respect between the electronically
equipped and the unequipped agent is substantial enough to require
discrete constitutional recognition,
Page 401 U. S. 753
particularly under the Fourth Amendment, which is ruled by fluid
concepts of "reasonableness."
Nor should we be too ready to erect constitutional barriers to relevant
and probative evidence which is also accurate and reliable. An electronic
recording will many times produce a more reliable rendition of what a
defendant has said than will the unaided memory of a police agent. It
may also be that. with the recording in existence. it is less likely that the
informant will change his mind, less chance that threat or injury will
suppress unfavorable evidence, and less chance that cross-examination
will confound the testimony. Considerations like these obviously do not
favor the defendant, but we are not prepared to hold that a defendant
who has no constitutional right to exclude the informer's unaided
testimony nevertheless has a Fourth Amendment privilege against a
more accurate version of the events in question.
It is thus untenable to consider the activities and reports of the police
agent himself, though acting without a warrant, to be a "reasonable"
investigative effort and lawful under the Fourth Amendment, but to view
the same agent with a recorder or transmitter as conducting an
"unreasonable" and unconstitutional search and seizure. Our opinion is
currently shared by Congress and the Executive Branch, Title III,
Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18
U.S.C. 2510 et seq. (1964 ed., Supp. V), and the American Bar
Association. Project on Standards for Criminal Justice, Electronic
Surveillance 4.1 (Approved Draft 1971). It is also the result reached by
prior cases in this Court. On Lee, supra; Lopez v. United States, supra.
No different result should obtain where, as in On Lee and the instant
case, the informer disappears and is unavailable
Page 401 U. S. 754
at trial; for the issue of whether specified events on a certain day violate
the Fourth Amendment should not be determined by what later happens
to the informer. His unavailability at trial and proffering the testimony of
140

other agents may raise evidentiary problems or pose issues of

prosecutorial misconduct with respect to the informer's disappearance,
but they do not appear critical to deciding whether prior events invaded
the defendant's Fourth Amendment rights.
II
The Court of Appeals was in error for another reason. In Desist v. United
States, 394 U. S. 244 (1969), we held that our decision in Katz v. United
States applied only to those electronic surveillances that occurred
subsequent to the date of that decision. Here, the events in question took
place in late 1965 and early 1966, long prior to Katz. We adhere to the
rationale of Desist, see Williams v. United States, ante, p. 401 U. S. 646.
It was error for the Court of Appeals to dispose of this case based on its
understanding of the principles announced in the Katz case. The court
should have judged this case by the pre-Katz law and under that law,
as On Lee clearly holds, the electronic surveillance here involved did not
violate White's rights to be free from unreasonable searches and seizures.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Page 401 U. S. 755
MR. JUSTICE BLACK, while adhering to his views expressed
in Linkletter v. Walker, 381 U. S. 618, 381 U. S. 640 (1965), concurs in
the judgment of the Court for the reasons set forth in his dissent in Katz
v. United States, 389 U. S. 347, 389 U. S. 364 (1967).

141

United States v. Knotts, 460 U.S. 276 (1983)

United States v. Knotts
No. 81-1802

information as to the movement of the chloroform container within the

cabin, or in any

Minnesota narcotics officers observed that, after Armstrong had made a

purchase, he would deliver the chemicals to codefendant Petschen.

Page 460 U. S. 277

With the consent of the Hawkins Chemical Co., officers installed a

beeper inside a five-gallon container of chloroform, one of the so-called
"precursor" chemicals used to manufacture illicit drugs. Hawkins agreed
that, when Armstrong next purchased chloroform, the chloroform would
be placed in this particular container. When Armstrong made the
purchase, officers followed the car in which the chloroform had been
placed, maintaining contact by using both visual surveillance and a
monitor which received the signals sent from the beeper.

Argued December 6, 1982

way that would not have been visible to the naked eye from outside the
cabin. Pp. 460 U. S. 280-285.

Decided March 2, 1983

662 F.2d 515, reversed.

460 U.S. 276

REHNQUIST, J., delivered the opinion of the Court, in which

BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined, post, p. 460 U. S. 285. BLACKMUN, J., filed
an opinion concurring in the judgment, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined, post,p. 460 U. S. 287.
STEVENS, J., filed an opinion concurring in the judgment, in which
BRENNAN, and MARSHALL, JJ., joined, post, p. 460 U. S. 288.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT
Syllabus
Having reason to believe that one Armstrong was purchasing chloroform
to be used in the manufacture of illicit drugs, Minnesota law
enforcement officers arranged with the seller to place a beeper (a radio
transmitter) inside a chloroform container that was sold to Armstrong.
Officers then followed the car in which the chloroform was placed,
maintaining contact by using both visual surveillance and a monitor
which received the beeper signals, and ultimately tracing the chloroform,
by beeper monitoring alone, to respondent's secluded cabin in
Wisconsin. Following three days of intermittent visual surveillance of
the cabin, officers secured a search warrant and discovered the
chloroform container, and a drug laboratory in the cabin, including
chemicals and formulas for producing amphetamine. After his motion to
suppress evidence based on the warrantless monitoring of the beeper was
denied, respondent was convicted in Federal District Court for
conspiring to manufacture controlled substances in violation of 21
U.S.C. 846. The Court of Appeals reversed, holding that the
monitoring of the beeper was prohibited by the Fourth Amendment.
Held: Monitoring the beeper signals did not invade any legitimate
expectation of privacy on respondent's part, and thus there was neither a
"search" nor a "seizure" within the contemplation of the Fourth
Amendment. The beeper surveillance amounted principally to following
an automobile on public streets and highways. A person traveling in an
automobile on public thoroughfares has no reasonable expectation of
privacy in his movements. While respondent had the traditional
expectation of privacy within a dwelling place insofar as his cabin was
concerned, such expectation of privacy would not have extended to the
visual observation from public places of the automobile arriving on his
premises after leaving a public highway, or to movements of objects
such as the chloroform container outside the cabin. The fact that the
officers relied not only on visual surveillance, but also on the use of the
beeper, does not alter the situation. Nothing in the Fourth Amendment
prohibited the police from augmenting their sensory faculties with such
enhancement as science and technology afforded them in this case. There
is no indication that the beeper was used in any way to reveal

JUSTICE REHNQUIST delivered the opinion of the Court.

A beeper is a radio transmitter, usually battery operated, which emits
periodic signals that can be picked up by a radio receiver. In this case, a
beeper was placed in a five-gallon drum containing chloroform
purchased by one of respondent's codefendants. By monitoring the
progress of a car carrying the chloroform, Minnesota law enforcement
agents were able to trace the can of chloroform from its place of
purchase in Minneapolis, Minn., to respondent's secluded cabin near
Shell Lake, Wis. The issue presented by the case is whether such use of a
beeper violated respondent's rights secured by the Fourth Amendment to
the United States Constitution.
I
Respondent and two codefendants were charged in the United States
District Court for the District of Minnesota with conspiracy to
manufacture controlled substances, including but not limited to
methamphetamine, in violation of 21 U.S.C. 846. One of the
codefendants, Darryl Petschen,
Page 460 U. S. 278
was tried jointly with respondent; the other codefendant, Tristan
Armstrong, pleaded guilty and testified for the Government at trial.
Suspicion attached to this trio when the 3M Co., which manufactures
chemicals in St. Paul, notified a narcotics investigator for the Minnesota
Bureau of Criminal Apprehension that Armstrong, a former 3M
employee, had been stealing chemicals which could be used in
manufacturing illicit drugs. Visual surveillance of Armstrong revealed
that, after leaving the employ of 3M Co., he had been purchasing similar
chemicals from the Hawkins Chemical Co. in Minneapolis. The

Armstrong proceeded to Petschen's house, where the container was

transferred to Petschen's automobile. Officers then followed that vehicle
eastward towards the state line, across the St. Croix River, and into
Wisconsin. During the latter part of this journey, Petschen began making
evasive maneuvers, and the pursuing agents ended their visual
surveillance. At about the same time, officers lost the signal from the
beeper, but with the assistance of a monitoring device located in a
helicopter the approximate location of the signal was picked up again
about one hour later. The signal now was stationary, and the location
identified was a cabin occupied by respondent near Shell Lake, Wis. The
record before us does not reveal that the beeper was used after the
Page 460 U. S. 279
location in the area of the cabin had been initially determined. Relying
on the location of the chloroform derived through the use of the beeper
and additional information obtained during three days of intermittent
visual surveillance of respondent's cabin, officers secured a search
warrant. During execution of the warrant, officers discovered a fully
operable, clandestine drug laboratory in the cabin. In the laboratory area,
officers found formulas for amphetamine and methamphetamine, over
$10,000 worth of laboratory equipment, and chemicals in quantities
sufficient to produce 14 pounds of pure amphetamine. Under a barrel
outside the cabin, officers located the five-gallon container of
chloroform.
After his motion to suppress evidence based on the warrantless
monitoring of the beeper was denied, respondent was convicted for
conspiring to manufacture controlled substances in violation of 21
U.S.C. 846. He was sentenced to five years' imprisonment. A divided
panel of the United States Court of Appeals for the Eighth Circuit
reversed the conviction, finding that the monitoring of the beeper was
prohibited by the Fourth Amendment because its use had violated
respondent's reasonable expectation of privacy, and that all information
derived after the location of the cabin was a fruit of the illegal beeper
monitoring. * 662 F.2d 515
Page 460 U. S. 280
142

(1981). We granted certiorari, 457 U.S. 1131 (1982), and we now reverse
the judgment of the Court of Appeals.
II
In Olmstead v. United States, 277 U. S. 438 (1928), this Court held that
the wiretapping of a defendant's private telephone line did not violate the
Fourth Amendment because the wiretapping had been effectuated
without a physical trespass by the Government. Justice Brandeis, joined
by Justice Stone, dissented from that decision, believing that the actions
of the Government in that case constituted an "unjustifiable intrusion . . .
upon the privacy of the individual," and therefore a violation of the
Fourth Amendment. Id. at 277 U. S. 478. Nearly 40 years later, in Katz v.
United
States, 389
U.
S.
347 (1967),
the
Court
overruled Olmstead, saying that the Fourth Amendment's reach "cannot
turn upon the presence or absence of a physical intrusion into any given
enclosure." 389 U.S. at 389 U. S. 353. The Court said:
"The Government's activities in electronically listening to and recording
the petitioner's words violated the privacy upon which he justifiably
relied while using the telephone booth, and thus constituted a 'search and
seizure' within the meaning of the Fourth Amendment. The fact that the
electronic device employed to achieve that end did not happen to
penetrate the wall of the booth can have no constitutional significance."
Ibid.
In Smith v. Maryland, 442 U. S. 735 (1979), we elaborated on the
principles stated in Katz:
"Consistently with Katz, this Court uniformly has held that the
application of the Fourth Amendment depends on whether the person
invoking its protection can claim a "justifiable," a "reasonable," or a
"legitimate expectation of privacy" that has been invaded by government
action. [Citations omitted.] This inquiry, as Mr. Justice Harlan aptly
noted in his Katzconcurrence, normally embraces
Page 460 U. S. 281
two discrete questions. The first is whether the individual, by his
conduct, has "exhibited an actual (subjective) expectation of privacy,"
389 U.S. at 389 U. S. 361 -- whether, in the words of the Katz majority,
the individual has shown that "he seeks to preserve [something] as
private." Id. at 389 U. S. 351. The second question is whether the
individual's subjective expectation of privacy is "one that society is
prepared to recognize as reasonable,'" id. at 389 U. S. 361 -- whether, in
the words of the Katz majority, the individual's expectation, viewed
objectively, is "justifiable" under the circumstances. Id. at 389 U. S.
353. See Rakas v. Illinois, 439 U.S. at 439 U. S. 143-144, n.
12; id. at 439 U. S. 151 (concurring opinion); United States v. White,401
U.S. at 401 U. S. 752 (plurality opinion)."

442 U.S. at 442 U. S. 740-741 (footnote omitted).

The governmental surveillance conducted by means of the beeper in this
case amounted principally to the following of an automobile on public
streets and highways. We have commented more than once on the
diminished expectation of privacy in an automobile:
"One has a lesser expectation of privacy in a motor vehicle because its
function is transportation, and it seldom serves as one's residence or as
the repository of personal effects. A car has little capacity for escaping
public scrutiny. It travels public thoroughfares where both its occupants
and its contents are in plain view."
Cardwell v. Lewis, 417 U. S. 583, 417 U. S. 590 (1974) (plurality
opinion). See also Rakas v. Illinois, 439 U. S. 128, 439 U. S. 153-154,
and n. 2 (1978) (POWELL, J., concurring); South Dakota v.
Opperman, 428 U. S. 364, 428 U. S. 368 (1976).

facts to the police. The fact that the officers in this case relied not only
on visual surveillance, but also on the use of the beeper to signal the
presence of Petschen's automobile to the police receiver, does not alter
the situation. Nothing in the Fourth Amendment prohibited the police
from augmenting the sensory faculties bestowed upon them at birth with
such enhancement as science and technology afforded them in this case.
In United States v. Lee, 274 U. S. 559(1927), the Court said:
Page 460 U. S. 283
"But no search on the high seas is shown. The testimony of the
boatswain shows that he used a searchlight. It is not shown that there
was any exploration below decks or under hatches. For aught that
appears, the cases of liquor were on deck and, like the defendants, were
discovered before the motor boat was boarded. Such use of a searchlight
is comparable to the use of a marine glass or a field glass. It is not
prohibited by the Constitution."

A person traveling in an automobile on public thoroughfares has no

reasonable expectation of privacy in his movements from one place to
another. When Petschen traveled over the public streets, he voluntarily
conveyed to anyone who wanted to look the fact that he was traveling
over particular

Id. at 563.

Page 460 U. S. 282

"This analysis dictates that [Smith] can claim no legitimate expectation

of privacy here. When he used his phone, [Smith] voluntarily conveyed
numerical information to the telephone company and 'exposed' that
information to its equipment in the ordinary course of business. In so
doing, [Smith] assumed the risk that the company would reveal to police
the numbers he dialed. The switching equipment that processed those
numbers is merely the modern counterpart of the operator who, in an
earlier day, personally completed calls for the subscriber. [Smith]
concedes that, if he had placed his calls through an operator, he could
claim no legitimate expectation of privacy. [Citation omitted.] We are not
inclined to hold that a different constitutional result is required because
the telephone company has decided to automate."

roads in a particular direction, the fact of whatever stops he made, and

the fact of his final destination when he exited from public roads onto
private property.
Respondent Knotts, as the owner of the cabin and surrounding premises
to which Petschen drove, undoubtedly had the traditional expectation of
privacy within a dwelling place insofar as the cabin was concerned:
"Crime, even in the privacy of one's own quarters, is, of course, of grave
concern to society, and the law allows such crime to be reached on
proper showing. The right of officers to thrust themselves into a home is
also of grave concern, not only to the individual, but to a society which
chooses to dwell in reasonable security and freedom from surveillance.
When the right of privacy must reasonably yield to the right of search is,
as a rule, to be decided by a judicial officer, not by a policeman or
government enforcement agent."
Johnson v. United States, 333 U. S. 10, 333 U. S. 14 (1948), quoted with
approval in Payton v. New York, 445 U. S. 573, 445 U. S. 586 (1980).
But no such expectation of privacy extended to the visual observation of
Petschen's automobile arriving on his premises after leaving a public
highway, nor to movements of objects such as the drum of chloroform
outside the cabin in the "open fields." Hester v. United States, 265 U. S.
57 (1924).
Visual surveillance from public places along Petschen's route or
adjoining Knotts' premises would have sufficed to reveal all of these

We have recently had occasion to deal with another claim which was to
some extent a factual counterpart of respondent's assertions here.
In Smith v. Maryland, we said:

442 U.S. at 442 U. S. 744-745.

Respondent does not actually quarrel with this analysis, though he
expresses the generalized view that the result of the holding sought by
the Government would be that "twenty-four hour surveillance of any
citizen of this country will be possible, without judicial knowledge or
supervision." Brief for Respondent 9 (footnote omitted). But the fact is
that the "reality hardly suggests abuse," Zurcher v. Stanford
Page 460 U. S. 284
Daily, 436 U. S. 547, 436 U. S. 566 (1978); if such dragnet-type law
enforcement practices as respondent envisions should eventually occur,
there will be time enough then to determine whether different
constitutional principles may be applicable. Ibid. Insofar as respondent's
complaint appears to be simply that scientific devices such as the beeper
143

enabled the police to be more effective in detecting crime, it simply has

no constitutional foundation. We have never equated police efficiency
with unconstitutionality, and we decline to do so now.
Respondent specifically attacks the use of the beeper insofar as it was
used to determine that the can of chloroform had come to rest on his
property at Shell Lake, Wis. He repeatedly challenges the "use of the
beeper to determine the location of the chemical drum at Respondent's
premises," Brief for Respondent 26; he states that
"[t]he government thus overlooks the fact that this case involves the
sanctity of Respondent's residence, which is accorded the greatest
protection available under the Fourth Amendment."
Ibid. The Court of Appeals appears to have rested its decision on this
ground:
"As noted above, a principal rationale for allowing warrantless tracking
of beepers, particularly beepers in or on an auto, is that beepers are
merely a more effective means of observing what is already public. But
people pass daily from public to private spheres. When police agents
track bugged personal property without first obtaining a warrant, they
must do so at the risk that this enhanced surveillance, intrusive at best,
might push fortuitously and unreasonably into the private sphere
protected by the Fourth Amendment."
662 F.2d at 518.
We think that respondent's contentions, and the above-quoted language
from the opinion of the Court of Appeals, to some extent lose sight of the
limited use which the government made of the signals from this
particular beeper. As we have noted, nothing in this record indicates that
the beeper
Page 460 U. S. 285
signal was received or relied upon after it had indicated that the drum
containing the chloroform had ended its automotive journey at rest on
respondent's premises in rural Wisconsin. Admittedly, because of the
failure of the visual surveillance, the beeper enabled the law enforcement
officials in this case to ascertain the ultimate resting place of the
chloroform when they would not have been able to do so had they relied
solely on their naked eyes. But scientific enhancement of this sort raises
no constitutional issues which visual surveillance would not also raise. A
police car following Petschen at a distance throughout his journey could
have observed him leaving the public highway and arriving at the cabin
owned by respondent, with the drum of chloroform still in the car. This
fact, along with others, was used by the government in obtaining a
search warrant which led to the discovery of the clandestine drug
laboratory. But there is no indication that the beeper was used in any way
to reveal information as to the movement of the drum within the cabin,
or in any way that would not have been visible to the naked eye from

outside the cabin. Just as notions of physical trespass based on the law of
real property were not dispositive in Katz v. United States, 389 U. S.
347 (1967), neither were they dispositive in Hester v. United States, 265
U. S. 57 (1924).
We thus return to the question posed at the beginning of our inquiry in
discussing Katz, supra; did monitoring the beeper signals complained of
by respondent invade any legitimate expectation of privacy on his part?
For the reasons previously stated, we hold it did not. Since it did not,
there was neither a "search" nor a "seizure" within the contemplation of
the Fourth Amendment. The judgment of the Court of Appeals is
therefore
Reversed.
* Respondent does not challenge the warrantless installation of the
beeper in the chloroform container, suggesting in oral argument that he
did not believe he had standing to make such a challenge. We note that,
while several Courts of Appeals have approved warrantless
installations, see United States v. Bernard, 625 F.2d 854 (CA9
1980); United States v. Lewis, 621 F.2d 1382 (CA5 1980), cert.
denied, 450 U.S. 935 (1981); United States v. Bruneau, 594 F.2d 1190
(CA8), cert. denied, 444 U.S. 847 (1979); United States v. Miroyan, 577
F.2d 489 (CA9), cert. denied, 439 U.S. 896 (1978); United States v.
Cheshire, 569 F.2d 887 (CA5), cert. denied, 437 U.S. 907 (1978); United
States v. Curtis, 562 F.2d 1153 (CA9 1977), cert. denied, 439 U.S. 910
(1978); United States v. Ael, 548 F.2d 591 (CA5), cert. denied, 431 U.S.
956 (1977); United States v. Hufford, 539 F.2d 32 (CA9), cert.
denied, 429 U.S. 1002 (1976), we have not before, and do not now, pass
on the issue.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
concurring in the judgment.
I join JUSTICE BLACKMUN's and JUSTICE STEVENS' opinions
concurring in the judgment. I should add, however,
Page 460 U. S. 286
that I think this would have been a much more difficult case if
respondent had challenged not merely certain aspects of the monitoring
of the beeper installed in the chloroform container purchased by
respondent's compatriot, but also its original installation. See ante at 460
U. S. 279, n. Katz v. United States, 389 U. S. 347 (1967), made quite
clear that the Fourth Amendment protects against governmental
invasions of a person's reasonable "expectation[s] of privacy," even
when those invasions are not accompanied by physical intrusions. Cases
such as Silverman v. United States, 365 U. S. 505, 365 U. S. 509-512
(1961), however, hold that, when the Government does engage in
physical intrusion of a constitutionally protected area in order to obtain
information, that intrusion may constitute a violation of the Fourth
Amendment even if the same information could have been obtained by

other means. I do not believe that Katz, or its progeny, have eroded that
principle. Cf. The Supreme Court, 1979 Term, 94 Harv.L.Rev. 75, 203204 (1980).
I am also entirely unconvinced by the Court of Appeals' footnote
disposing of the installation issue with the statement:
"we hold that the consent of the owner [of the chloroform drum] at the
time of installation meets the requirements of the Fourth Amendment,
even if the consenting owner intends to soon sell the 'bugged' property to
an unsuspecting buyer.Caveat emptor."
662 F.2d 515, 517, n. 2 (1981) (citation omitted). The Government is not
here defending against a claim for damages in an action for breach of a
warranty; it is attempting to justify the legality of a search conducted in
the course of a criminal investigation. I am not at all sure that, for
purposes of the Fourth Amendment, there is a constitutionally significant
difference between planting a beeper in an object in the possession of a
criminal suspect and purposefully arranging that he be sold an object
that, unknown to him, already has a beeper installed inside it. Cf. Gouled
v. United States, 255 U. S. 298, 255 U. S. 305-306 (1921); Lewis v.
United States, 385 U. S. 206, 385 U. S. 211 (1966).
Page 460 U. S. 287
Respondent claimed at oral argument that, under this Court's cases, he
would not have standing to challenge the original installation of the
beeper in the chloroform drum because the drum was sold, not to him,
but to one of his compatriots.See ante at 460 U. S. 279, n. If respondent
is correct, that would only confirm for me the formalism and confusion
in this Court's recent attempts to redefine Fourth Amendment
standing. See Rawlings v. Kentucky, 448 U. S. 98, 448 U. S. 114(1980)
(MARSHALL, J., dissenting); Rakas v. Illinois, 439 U. S. 128, 439 U. S.
156 (1978) (WHITE, J., dissenting).
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE
MARSHALL, and JUSTICE STEVENS join, concurring in the
judgment.
The Court's opinion gratuitously refers to the "open fields" doctrine, and
twice cites Hester v. United States, 265 U. S. 57(1924). Ante at 460 U. S.
282 and 460 U. S. 285. For me, the present case does not concern the
open fields doctrine, and I regard these references and citations as
unnecessary for the Court's decision. Furthermore, and most important,
cases concerning the open fields doctrine have been accepted by the
Court for argument and plenary consideration. State v. Brady, 406 So.2d
1093 (Fla.), cert. granted, 456 U.S. 988 (1982); United States v.
Oliver, 686 F.2d 356 (CA6 1982), cert. granted,459 U.S. 1168
(1983). See also United States v. Dunn, 674 F.2d 1093 (CA5 1982), cert.
pending, No. 82-508.

144

It would be unfortunate to provide either side in these granted cases with

support, directly or by implication, for its position, and I surely do not
wish to decide those cases in this one. Although the Court does not
indicate its view on how such cases should be decided, I would defer all
comments about open fields to a case that concerns that subject and in
which we have the benefit of briefs and oral argument.

petitioners for Injunction and Damages with Writ of Preliminary

Injunction/TRO, docketed as Civil Case No. MAN-5125; 8 that in that
case, Aldo claimed that petitioners were constructing a fence without a
valid permit and that the said construction would destroy the wall of its
building, which is adjacent to petitioners property; 9 that the court, in
that case, denied Aldos application for preliminary injunction for failure
to substantiate its allegations;10 that, in order to get evidence to support

I therefore do not join the Court's opinion. I concur only in the result it
reaches.

the said case, respondents on June 13, 2005 illegally set-up and installed
on the building of Aldo Goodyear Servitec two video surveillance
cameras facing petitioners property; 11 that respondents, through their

Page 460 U. S. 288

JUSTICE STEVENS, with whom JUSTICE BRENNAN, and JUSTICE
MARSHALL join, concurring in the judgment.
Since the respondent in this case has never questioned the installation of
the radio transmitter in the chloroform drum, see ante at 460 U. S. 279,
n., I agree that it was entirely reasonable for the police officers to make
use of the information received over the airwaves when they were trying
to ascertain the ultimate destination of the chloroform. I do not join the
Court's opinion, however, because it contains two unnecessarily broad
dicta: one distorts the record in this case, and both may prove confusing
to courts that must apply this decision in the future.
First, the Court implies that the chloroform drum was parading in "open
fields" outside of the cabin, in a manner tantamount to its public display
on the highways. See ante at 460 U. S. 282. The record does not support
that implication. As JUSTICE BLACKMUN points out, this case does
not pose any "open fields" issue.
Second, the Court suggests that the Fourth Amendment does not inhibit
"the police from augmenting the sensory faculties bestowed upon them
at birth with such enhancement as science and technology afforded
them."
Ibid. But the Court held to the contrary in Katz v. United States, 389 U.
S. 347 (1967). Although the augmentation in this case was
unobjectionable, it by no means follows that the use of electronic
detection techniques does not implicate especially sensitive concerns.
Accordingly, I concur in the judgment.

SECOND DIVISION

employees and without the consent of petitioners, also took pictures of

petitioners on-going construction;12 and that the acts of respondents

G.R. No. 179736, June 26, 2013

SPOUSES
BILL
HING, Petitioners, v. ALEXANDER
ALLAN

AND
VICTORIA
CHOACHUY, SR. AND
CHOACHUY, Respondents.

DECISION

violate petitioners right to privacy.13 Thus, petitioners prayed that

respondents be ordered to remove the video surveillance cameras and
enjoined
from
conducting
illegal
surveillance. 14

DEL CASTILLO, J.:

In their Answer with Counterclaim, 15 respondents claimed that they did

not install the video surveillance cameras, 16 nor did they order their

The concept of liberty would be emasculated if it does not likewise

compel respect for [ones] personality as a unique individual whose
claim to privacy and [non]-interference demands respect. 1

employees to take pictures of petitioners construction. 17 They also

clarified that they are not the owners of Aldo but are mere
stockholders.18

This Petition for Review on Certiorari2 under Rule 45 of the Rules of

Court assails the July 10, 2007 Decision 3 and the September 11, 2007
Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP No.

Ruling

01473.
Factual

Antecedents

On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with
the Regional Trial Court (RTC) of Mandaue City a Complaint 5 for
Injunction and Damages with prayer for issuance of a Writ of
Preliminary Mandatory Injunction/Temporary Restraining Order (TRO),
docketed as Civil Case MAN-5223 and raffled to Branch 28, against
respondents Alexander Choachuy, Sr. and Allan Choachuy.
Petitioners alleged that they are the registered owners of a parcel of land
(Lot 1900-B) covered by Transfer Certificate of Title (TCT) No. 42817
situated in Barangay Basak, City of Mandaue, Cebu; 6that respondents
are the owners of Aldo Development & Resources, Inc. (Aldo) located at
Lots 1901 and 1900-C, adjacent to the property of petitioners; 7 that
respondents constructed an auto-repair shop building (Aldo Goodyear
Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case against

of

the

Regional

Trial

Court

On October 18, 2005, the RTC issued an Order 19 granting the

application for a TRO. The dispositive portion of the said Order
reads:cralavvonlinelawlibrary
WHEREFORE, the application for a [T]emporary
[R]estraining [O]rder or a [W]rit of [P]reliminary
[I]njunction is granted. Upon the filing and approval of a
bond by [petitioners], which the Court sets at
P50,000.00, let a [W]rit of [P]reliminary [I]njunction
issue against the [respondents] Alexander Choachuy, Sr.
and Allan Choachuy. They are hereby directed to
immediately remove the revolving camera that they
installed at the left side of their building overlooking the
side of [petitioners] lot and to transfer and operate it
elsewhere at the back where [petitioners] property can
no longer be viewed within a distance of about 2-3
meters from the left corner of Aldo Servitec, facing the
road.
IT IS SO ORDERED.20
145

Respondents moved for a reconsideration 21 but the RTC denied the

same
in
its
Order22 dated
February
6,
2006. 23
Thus:cralavvonlinelawlibrary
WHEREFORE, the Motion for Reconsideration is
hereby DENIED for lack of merit. Issue a [W]rit of
[P]reliminary [I]njunction in consonance with the Order
dated
18
October
2005.

II.

IT IS SO ORDERED.24nadcralavvonlinelawlibrary
Aggrieved,

respondents

filed

with

the

CA

Petition

for Certiorari25 under Rule 65 of the Rules of Court with application for
a
TRO
and/or
Writ
of
Preliminary
Injunction.
Ruling

of

the

Court

of

Appeals

On July 10, 2007, the CA issued its Decision 26 granting the Petition
for Certiorari. The CA ruled that the Writ of Preliminary Injunction was
issued with grave abuse of discretion because petitioners failed to show a
clear and unmistakable right to an injunctive writ. 27 The CA explained
that the right to privacy of residence under Article 26(1) of the Civil
Code was not violated since the property subject of the controversy is
not used as a residence. 28 The CA also said that since respondents are
not the owners of the building, they could not have installed video
surveillance cameras.29 They are mere stockholders of Aldo, which has
a separate juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by us GRANTING the
petition filed in this case. The assailed orders dated
October 18, 2005 and February 6, 2006 issued by the
respondent judge are hereby ANNULLED and SET
ASIDE.
SO ORDERED.32nadcralavvonlinelawlibrary

Issues
Hence, this recourse by petitioners arguing that:cralavvonlinelawlibrary
I.

THE X X X [CA] COMMITTED A REVERSIBLE

ERROR WHEN IT ANNULLED AND SET ASIDE
THE ORDERS OF THE [RTC] DATED 18 OCTOBER
2005 AND 6 FEBRUARY 2006 HOLDING THAT
THEY WERE ISSUED WITH GRAVE ABUSE OF
DISCRETION.

THE X X X [CA] COMMITTED A REVERSIBLE

ERROR WHEN IT RULED THAT PETITIONER
SPOUSES HING ARE NOT ENTITLED TO THE
WRIT OF PRELIMINARY INJUNCTION ON THE
GROUND THAT THERE IS NO VIOLATION OF
THEIR CONSTITUTIONAL AND CIVIL RIGHT TO
PRIVACY DESPITE THE FACTUAL FINDINGS [OF]
THE RTC, WHICH RESPONDENTS CHOACHUY
FAILED TO REFUTE, THAT THE ILLEGALLY
INSTALLED SURVEILLANCE CAMERAS OF
RESPONDENTS CHOACH[U]Y WOULD CAPTURE
THE PRIVATE ACTIVITIES OF PETITIONER
SPOUSES HING, THEIR CHILDREN AND
EMPLOYEES.
III.
THE X X X [CA] COMMITTED A REVERSIBLE
ERROR WHEN IT RULED THAT SINCE THE
OWNER
OF
THE
BUILDING
IS
ALDO
DEVELOPMENT AND RESOURCES, INC. THEN TO
SUE RESPONDENTS CHOACHUY CONSTITUTE[S]
A PURPORTEDLY UNWARRANTED PIERCING OF
THE CORPORATE VEIL.

Petitioners

Petitioners insist that they are entitled to the issuance of a Writ of

Preliminary Injunction because respondents installation of a stationary
camera directly facing petitioners property and a revolving camera
covering a significant portion of the same property constitutes a violation
of petitioners right to privacy.34 Petitioners cite Article 26(1) of the
Civil Code, which enjoins persons from prying into the private lives of
others.35 Although the said provision pertains to the privacy of anothers
residence, petitioners opine that it includes business offices, citing
Professor Arturo M. Tolentino. 36 Thus, even assuming arguendo that
petitioners property is used for business, it is still covered by the said
provision.37
As to whether respondents are the proper parties to implead in this case,
petitioners claim that respondents and Aldo are one and the same, and
that respondents only want to hide behind Aldos corporate fiction. 38
They point out that if respondents are not the real owners of the building,
where the video surveillance cameras were installed, then they had no
business consenting to the ocular inspection conducted by the court. 39
Respondents

Arguments

Respondents, on the other hand, echo the ruling of the CA that

petitioners cannot invoke their right to privacy since the property
involved is not used as a residence. 40 Respondents maintain that they
had nothing to do with the installation of the video surveillance cameras
as these were installed by Aldo, the registered owner of the
building,41 as additional security for its building. 42 Hence, they were
wrongfully impleaded in this case.43

IV.

Our Ruling

THE X X X [CA] COMMITTED A REVERSIBLE

ERROR WHEN IT IGNORED THE SERIOUS
FORMAL DEFICIENCIES OF BOTH THE PETITION
AND THE MOTION FOR RECONSIDERATION
DATED 15 MARCH 2006 OF RESPONDENT[S]
CHOACH[U]Y AND GAVE X X X THEM DUE
COURSE AND CONSIDERATION.33

The

Essentially, the issues boil down to (1) whether there is a violation of

petitioners right to privacy, and (2) whether respondents are the proper
parties
to
this
suit.

Arguments

The

Petition
right

to

privacy

is
is

the

right

meritorious.
to

be

let

alone.

The right to privacy is enshrined in our Constitution44 and in our laws.

It is defined as the right to be free from unwarranted exploitation of
ones person or from intrusion into ones private activities in such a way
as to cause humiliation to a persons ordinary sensibilities. 45 It is the
right of an individual to be free from unwarranted publicity, or to live
without unwarranted interference by the public in matters in which the
public is not necessarily concerned. 46 Simply put, the right to privacy
146

is

the

right

to

be

let

alone.47

The Bill of Rights guarantees the peoples right to privacy and protects
them against the States abuse of power. In this regard, the State
recognizes the right of the people to be secure in their houses. No one,
not even the State, except in case of overriding social need and then
only under the stringent procedural safeguards, can disturb them in the
privacy
of
their
homes.48
The
right
to
privacy
under
Article
26(1)
of
the
Civil
Code
covers
business
offices
where
the
public
are
excluded
therefrom
and
only
certain
individuals
are
allowed
to
enter.
Article 26(1) of the Civil Code, on the other hand, protects an
individuals right to privacy and provides a legal remedy against abuses
that may be committed against him by other individuals. It
states:cralavvonlinelawlibrary
Art. 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and
other
relief:cralavvonlinelawlibrary
(1)
Prying into the privacy
residence;chanroblesvirtualawlibrary

of

anothers

[petitioners].
Thus, an individuals right to privacy under Article 26(1) of the Civil
Code should not be confined to his house or residence as it may extend
to places where he has the right to exclude the public or deny them
access. The phrase prying into the privacy of anothers residence,
therefore, covers places, locations, or even situations which an individual
considers as private. And as long as his right is recognized by society,
other individuals may not infringe on his right to privacy. The CA,
therefore, erred in limiting the application of Article 26(1) of the Civil
Code
only
to
residences.
The
test
is

is
a

reasonable
used
violation

to
of

expectation
of
determine
whether
the
right
to

privacy
there
privacy.

In ascertaining whether there is a violation of the right to privacy, courts

use the reasonable expectation of privacy test. This test determines
whether a person has a reasonable expectation of privacy and whether
the expectation has been violated. 51 In Ople v. Torres,52 we enunciated
that the reasonableness of a persons expectation of privacy depends on
a two-part test: (1) whether, by his conduct, the individual has exhibited
an expectation of privacy; and (2) this expectation is one that society
recognizes as reasonable. Customs, community norms, and practices
may, therefore, limit or extend an individuals reasonable expectation of
privacy.53 Hence, the reasonableness of a persons expectation of
privacy must be determined on a case-to-case basis since it depends on
the
factual
circumstances
surrounding
the
case. 54

This provision recognizes that a mans house is his castle, where his
right to privacy cannot be denied or even restricted by others. It includes
any act of intrusion into, peeping or peering inquisitively into the
residence of another without the consent of the latter. 49 The phrase

In this day and age, video surveillance cameras are installed practically
everywhere for the protection and safety of everyone. The installation of
these cameras, however, should not cover places where there is
reasonable expectation of privacy, unless the consent of the individual,
whose right to privacy would be affected, was obtained. Nor should
these cameras be used to pry into the privacy of anothers residence or
business office as it would be no different from eavesdropping, which is
a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.

prying into the privacy of anothers residence, however, does not mean
that only the residence is entitled to privacy. As elucidated by Civil law
expert Arturo M. Tolentino:cralavvonlinelawlibrary

In this case, the RTC, in granting the application for Preliminary

Injunction, ruled that:cralavvonlinelawlibrary

xxxx

Our Code specifically mentions prying into the privacy

of anothers residence. This does not mean, however,
that only the residence is entitled to privacy, because the
law covers also similar acts. A business office is
entitled to the same privacy when the public is excluded
therefrom and only such individuals as are allowed to
enter may come in. x x x50 (Emphasis supplied)

After careful consideration, there is basis to grant the

application for a temporary restraining order. The
operation by [respondents] of a revolving camera, even if
it were mounted on their building, violated the right of
privacy of [petitioners], who are the owners of the
adjacent lot. The camera does not only focus on
[respondents] property or the roof of the factory at the
back (Aldo Development and Resources, Inc.) but it
actually spans through a good portion of [the] land of

Based on the ocular inspection, the Court understands

why [petitioner] Hing was so unyielding in asserting that
the revolving camera was set up deliberately to monitor
the on[-]going construction in his property. The monitor
showed only a portion of the roof of the factory of
[Aldo]. If the purpose of [respondents] in setting up a
camera at the back is to secure the building and factory
premises, then the camera should revolve only towards
their properties at the back. [Respondents] camera
cannot be made to extend the view to [petitioners] lot.
To allow the [respondents] to do that over the objection
of the [petitioners] would violate the right of [petitioners]
as property owners. The owner of a thing cannot make
use thereof in such a manner as to injure the rights of a
third person.55
The RTC, thus, considered that petitioners have a reasonable
expectation of privacy in their property, whether they use it as a
business office or as a residence and that the installation of video
surveillance cameras directly facing petitioners property or covering a
significant portion thereof, without their consent, is a clear violation of
their right to privacy. As we see then, the issuance of a preliminary
injunction was justified. We need not belabor that the issuance of a
preliminary injunction is discretionary on the part of the court taking
cognizance of the case and should not be interfered with, unless there is
grave abuse of discretion committed by the court. 56 Here, there is no
indication of any grave abuse of discretion. Hence, the CA erred in
finding that petitioners are not entitled to an injunctive writ.
This brings us to the next question: whether respondents are the proper
parties
to
this
suit.
A
real
party
defendant
is
one
who
has
a
correlative
legal
obligation
to
redress
a
wrong
done
to
the
plaintiff
by
reason
of
the
defendant's
act
or
omission
which
had
violated
the
legal
right
of
the
former.
Section 2, Rule 3 of the Rules of Court provides:cralavvonlinelawlibrary
SEC. 2. Parties-in-interest. A 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. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in
the name of the real party-in-interest.
147

A real party defendant is one who has a correlative legal obligation to

redress a wrong done to the plaintiff by reason of the defendants act or
omission which had violated the legal right of the former. 57
In ruling that respondents are not the proper parties, the CA reasoned
that since they do not own the building, they could not have installed the
video surveillance cameras.58 Such reasoning, however, is erroneous.
The fact that respondents are not the registered owners of the building
does not automatically mean that they did not cause the installation of
the
video
surveillance
cameras.
In their Complaint, petitioners claimed that respondents installed the
video surveillance cameras in order to fish for evidence, which could be
used against petitioners in another case. 59 During the hearing of the
application for Preliminary Injunction, petitioner Bill testified that when
respondents installed the video surveillance cameras, he immediately
broached his concerns but they did not seem to care, 60 and thus, he

July 10, 2007 and the Resolution dated September 11, 2007 of the Court
of
Appeals
in
CA-G.R.
CEB-SP
No.
01473
are
hereby REVERSED and SET ASIDE. The Orders dated October 18,
2005 and February 6, 200[6] of Branch 28 of the Regional Trial Court of
Mandaue
City
in
Civil
Case
No.
MAN-5223
are
hereby REINSTATEDand AFFIRMED.
SO

ORDERED.

Carpio, (Chairperson), Brion, Perez, and Perlas-Bernabe, JJ., concur.

Endnotes:

wlibrary
awlibrary

reported the matter to the barangay for mediation, and eventually, filed a
Complaint against respondents before the RTC. 61 He also admitted that
as early as 1998 there has already been a dispute between his family and
the Choachuy family concerning the boundaries of their respective
properties.62 With these factual circumstances in mind, we believe that
respondents

are

the

proper

parties

to

be

impleaded.

Moreover, although Aldo has a juridical personality separate and distinct

from its stockholders, records show that it is a family-owned corporation
managed
by
the
Choachuy
family.63
Also quite telling is the fact that respondents, notwithstanding their
claim that they are not owners of the building, allowed the court to enter
the compound of Aldo and conduct an ocular inspection. The counsel for
respondents even toured Judge Marilyn Lagura-Yap inside the building
and answered all her questions regarding the set-up and installation of
the video surveillance cameras.64 And when respondents moved for
reconsideration of the Order dated October 18, 2005 of the RTC, one of
the arguments they raised is that Aldo would suffer damages if the video
surveillance cameras are removed and transferred. 65 Noticeably, in
these instances, the personalities of respondents and Aldo seem to merge.
All these taken together lead us to the inevitable conclusion that
respondents are merely using the corporate fiction of Aldo as a shield to
protect themselves from this suit. In view of the foregoing, we find that
respondents
are
the
proper
parties
to
this
suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated
148

SECOND DIVISION
[G.R. NO. 174629 : February 14, 2008]
REPUBLIC OF THE PHILIPPINES, Represented by THE ANTIMONEY LAUNDERING COUNCIL (AMLC), Petitioner, v. HON.
ANTONIO M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC,
MANILA, BRANCH 34, PANTALEON ALVAREZ and LILIA
CHENG, Respondents.
DECISION
TINGA, J.:
The present petition for certiorari and prohibition under Rule 65 assails
the orders and resolutions issued by two different courts in two different
cases. The courts and cases in question are the Regional Trial Court of
Manila, Branch 24, which heard SP Case No. 06-114200 1and the Court
of Appeals, Tenth Division, which heared CA-G.R. SP No. 95198. 2 Both
cases arose as part of the aftermath of the ruling of this Court in Agan v.
PIATCO3 nullifying the concession agreement awarded to the Philippine
International Airport Terminal Corporation (PIATCO) over the Ninoy
Aquino International Airport - International Passenger Terminal 3 (NAIA
3) Project.
I.
Following the promulgation of Agan, a series of investigations
concerning the award of the NAIA 3 contracts to PIATCO were
undertaken by the Ombudsman and the Compliance and Investigation
Staff (CIS) of petitioner Anti-Money Laundering Council (AMLC). On
24 May 2005, the Office of the Solicitor General (OSG) wrote the
AMLC requesting the latter's assistance "in obtaining more evidence to
completely reveal the financial trail of corruption surrounding the [NAIA
3] Project," and also noting that petitioner Republic of the Philippines
was presently defending itself in two international arbitration cases filed
in relation to the NAIA 3 Project. 4 The CIS conducted an intelligence
database search on the financial transactions of certain individuals
involved in the award, including respondent Pantaleon Alvarez (Alvarez)
who had been the Chairman of the PBAC Technical Committee, NAIAIPT3 Project.5 By this time, Alvarez had already been charged by the
Ombudsman with violation of Section 3(j) of R.A. No. 3019. 6 The
search revealed that Alvarez maintained eight (8) bank accounts with six
(6) different banks.7
On 27 June 2005, the AMLC issued Resolution No. 75, Series of
2005,8 whereby the Council resolved to authorize the Executive Director
of the AMLC "to sign and verify an application to inquire into and/or
examine the [deposits] or investments of Pantaleon Alvarez, Wilfredo

Trinidad, Alfredo Liongson, and Cheng Yong, and their related web of
accounts wherever these may be found, as defined under Rule 10.4 of the
Revised Implementing Rules and Regulations;" and to authorize the
AMLC Secretariat "to conduct an inquiry into subject accounts once the
Regional Trial Court grants the application to inquire into and/or
examine the bank accounts" of those four individuals. 9 The resolution
enumerated the particular bank accounts of Alvarez, Wilfredo Trinidad
(Trinidad), Alfredo Liongson (Liongson) and Cheng Yong which were to
be the subject of the inquiry.10 The rationale for the said resolution was
founded on the cited findings of the CIS that amounts were transferred
from a Hong Kong bank account owned by Jetstream Pacific Ltd.
Account to bank accounts in the Philippines maintained by Liongson and
Cheng Yong.11 The Resolution also noted that "[b]y awarding the
contract to PIATCO despite its lack of financial capacity, Pantaleon
Alvarez caused undue injury to the government by giving PIATCO
unwarranted benefits, advantage, or preference in the discharge of his
official administrative functions through manifest partiality, evident bad
faith, or gross inexcusable negligence, in violation of Section 3(e) of
Republic Act No. 3019."12
Under the authority granted by the Resolution, the AMLC filed an
application to inquire into or examine the deposits or investments of
Alvarez, Trinidad, Liongson and Cheng Yong before the RTC of Makati,
Branch 138, presided by Judge (now Court of Appeals Justice) Sixto
Marella, Jr. The application was docketed as AMLC No. 05-005. 13 The
Makati RTC heard the testimony of the Deputy Director of the AMLC,
Richard David C. Funk II, and received the documentary evidence of the
AMLC.14 Thereafter, on 4 July 2005, the Makati RTC rendered an
Order (Makati RTC bank inquiry order) granting the AMLC the
authority to inquire and examine the subject bank accounts of Alvarez,
Trinidad, Liongson and Cheng Yong, the trial court being satisfied that
there existed "[p]robable cause [to] believe that the deposits in various
bank accounts, details of which appear in paragraph 1 of the Application,
are related to the offense of violation of Anti-Graft and Corrupt Practices
Act now the subject of criminal prosecution before the Sandiganbayan as
attested to by the Informations, Exhibits C, D, E, F, and G." 15 Pursuant
to the Makati RTC bank inquiry order, the CIS proceeded to inquire and
examine the deposits, investments and related web accounts of the
four.16
Meanwhile, the Special Prosecutor of the Office of the Ombudsman,
Dennis Villa-Ignacio, wrote a letter dated 2 November 2005, requesting
the AMLC to investigate the accounts of Alvarez, PIATCO, and several
other entities involved in the nullified contract. The letter adverted to
probable cause to believe that the bank accounts "were used in the
commission of unlawful activities that were committed" in relation to the
criminal cases then pending before the Sandiganbayan. 17 Attached to

the letter was a memorandum "on why the investigation of the [accounts]
is necessary in the prosecution of the above criminal cases before the
Sandiganbayan."18
In response to the letter of the Special Prosecutor, the AMLC
promulgated on 9 December 2005 Resolution No. 121 Series of
2005,19 which authorized the executive director of the AMLC to inquire
into and examine the accounts named in the letter, including one
maintained by Alvarez with DBS Bank and two other accounts in the
name of Cheng Yong with Metrobank. The Resolution characterized the
memorandum attached to the Special Prosecutor's letter as "extensively
justif[ying] the existence of probable cause that the bank accounts of the
persons and entities mentioned in the letter are related to the unlawful
activity of violation of Sections 3(g) and 3(e) of Rep. Act No. 3019, as
amended."20
Following the December 2005 AMLC Resolution, the Republic, through
the AMLC, filed an application 21 before the Manila RTC to inquire into
and/or examine thirteen (13) accounts and two (2) related web of
accounts alleged as having been used to facilitate corruption in the NAIA
3 Project. Among said accounts were the DBS Bank account of Alvarez
and the Metrobank accounts of Cheng Yong. The case was raffled to
Manila RTC, Branch 24, presided by respondent Judge Antonio Eugenio,
Jr., and docketed as SP Case No. 06-114200.
On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank
inquiry order) granting the Ex Parte Application expressing therein
"[that] the allegations in said application to be impressed with merit, and
in conformity with Section 11 of R.A. No. 9160, as amended, otherwise
known as the Anti-Money Laundering Act (AMLA) of 2001 and Rules
11.1 and 11.2 of the Revised Implementing Rules and
Regulations."22 Authority was thus granted to the AMLC to inquire into
the bank accounts listed therein.
On 25 January 2006, Alvarez, through counsel, entered his
appearance23 before the Manila RTC in SP Case No. 06-114200 and
filed an Urgent Motion to Stay Enforcement of Order of January 12,
2006.24 Alvarez alleged that he fortuitously learned of the bank inquiry
order, which was issued following an ex parte application, and he argued
that nothing in R.A. No. 9160 authorized the AMLC to seek the
authority to inquire into bank accounts ex parte.25 The day after Alvarez
filed his motion, 26 January 2006, the Manila RTC issued an
Order26 staying the enforcement of its bank inquiry order and giving the
Republic five (5) days to respond to Alvarez's motion.
The Republic filed an Omnibus Motion for Reconsideration 27 of the 26
January 2006 Manila RTC Order and likewise sought to strike out
Alvarez's motion that led to the issuance of said order. For his part,
149

Alvarez filed a Reply and Motion to Dismiss 28 the application for bank
inquiry order. On 2 May 2006, the Manila RTC issued an Omnibus
Order29 granting the Republic's Motion for Reconsideration, denying
Alvarez's motion to dismiss and reinstating "in full force and effect" the
Order dated 12 January 2006. In the omnibus order, the Manila RTC
reiterated that the material allegations in the application for bank inquiry
order filed by the Republic stood as "the probable cause for the
investigation and examination of the bank accounts and investments of
the respondents."30
Alvarez filed on 10 May 2006 an Urgent Motion 31 expressing his
apprehension that the AMLC would immediately enforce the omnibus
order and would thereby render the motion for reconsideration he
intended to file as moot and academic; thus he sought that the Republic
be refrained from enforcing the omnibus order in the meantime. Acting
on this motion, the Manila RTC, on 11 May 2006, issued an
Order32 requiring the OSG to file a comment/opposition and reminding
the parties that judgments and orders become final and executory upon
the expiration of fifteen (15) days from receipt thereof, as it is the period
within which a motion for reconsideration could be filed. Alvarez filed
his Motion for Reconsideration33 of the omnibus order on 15 May 2006,
but the motion was denied by the Manila RTC in an Order 34 dated 5
July 2006.
On

11

July

2006,

Alvarez

filed

an

Urgent

Motion

and

Manifestation35 wherein he manifested having received reliable

information that the AMLC was about to implement the Manila RTC
bank inquiry order even though he was intending to appeal from it. On
the premise that only a final and executory judgment or order could be
executed or implemented, Alvarez sought that the AMLC be
immediately ordered to refrain from enforcing the Manila RTC bank
inquiry order.
On 12 July 2006, the Manila RTC, acting on Alvarez's latest motion,
issued an Order36 directing the AMLC "to refrain from enforcing the
order dated January 12, 2006 until the expiration of the period to appeal,
without any appeal having been filed." On the same day, Alvarez filed a
Notice of Appeal37 with the Manila RTC.
On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for
Clarification.38 Therein, he alleged having learned that the AMLC had
began to inquire into the bank accounts of the other persons mentioned
in the application for bank inquiry order filed by the
Republic.39 Considering that the Manila RTC bank inquiry order was
issued ex parte, without notice to those other persons, Alvarez prayed
that the AMLC be ordered to refrain from inquiring into any of the other
bank deposits and alleged web of accounts enumerated in AMLC's

application with the RTC; and that the AMLC be directed to refrain from
using, disclosing or publishing in any proceeding or venue any
information or document obtained in violation of the 11 May 2006 RTC
Order.40
On 25 July 2006, or one day after Alvarez filed his motion, the Manila
RTC issued an Order41wherein it clarified that "the Ex Parte Order of
this Court dated January 12, 2006 can not be implemented against the
deposits or accounts of any of the persons enumerated in the AMLC
Application until the appeal of movant Alvarez is finally resolved,
otherwise, the appeal would be rendered moot and academic or even
nugatory."42 In addition, the AMLC was ordered "not to disclose or
publish any information or document found or obtained in [v]iolation of
the May 11, 2006 Order of this Court."43 The Manila RTC reasoned that
the other persons mentioned in AMLC's application were not served with
the court's 12 January 2006 Order. This 25 July 2006 Manila RTC Order
is the first of the four rulings being assailed through this petition.
In response, the Republic filed an Urgent Omnibus Motion for
Reconsideration44 dated 27 July 2006, urging that it be allowed to
immediately enforce the bank inquiry order against Alvarez and that
Alvarez's notice of appeal be expunged from the records since appeal
from an order of inquiry is disallowed under the Anti money Laundering
Act (AMLA).
Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a
Petition for Certiorari, Prohibition and Mandamus with Application for
TRO and/or Writ of Preliminary Injunction45dated 10 July 2006,
directed against the Republic of the Philippines through the AMLC,
Manila RTC Judge Eugenio, Jr. and Makati RTC Judge Marella, Jr.. She
identified herself as the wife of Cheng Yong 46 with whom she jointly
owns a conjugal bank account with Citibank that is covered by the
Makati RTC bank inquiry order, and two conjugal bank accounts with
Metrobank that are covered by the Manila RTC bank inquiry order. Lilia
Cheng imputed grave abuse of discretion on the part of the Makati and
Manila RTCs in granting AMLC's ex parte applications for a bank
inquiry order, arguing among others that the ex parte applications
violated her constitutional right to due process, that the bank inquiry
order under the AMLA can only be granted in connection with violations
of the AMLA and that the AMLA can not apply to bank accounts opened
and transactions entered into prior to the effectivity of the AMLA or to
bank accounts located outside the Philippines. 47
On 1 August 2006, the Court of Appeals, acting on Lilia Cheng's
petition, issued a Temporary Restraining Order 48 enjoining the Manila
and Makati trial courts from implementing, enforcing or executing the
respective bank inquiry orders previously issued, and the AMLC from
enforcing and implementing such orders. On even date, the Manila RTC

issued an Order49 resolving to hold in abeyance the resolution of the

urgent omnibus motion for reconsideration then pending before it until
the resolution of Lilia Cheng's petition for certiorari with the Court of
Appeals. The Court of Appeals Resolution directing the issuance of the
temporary restraining order is the second of the four rulings assailed in
the present petition.
The third assailed ruling50 was issued on 15 August 2006 by the Manila
RTC, acting on the Urgent Motion for Clarification 51 dated 14 August
2006 filed by Alvarez. It appears that the 1 August 2006 Manila RTC
Order had amended its previous 25 July 2006 Order by deleting the last
paragraph which stated that the AMLC "should not disclose or publish
any information or document found or obtained in violation of the May
11, 2006 Order of this Court."52 In this new motion, Alvarez argued that
the deletion of that paragraph would allow the AMLC to implement the
bank inquiry orders and publish whatever information it might obtain
thereupon even before the final orders of the Manila RTC could become
final and executory.53 In the 15 August 2006 Order, the Manila RTC
reiterated that the bank inquiry order it had issued could not be
implemented or enforced by the AMLC or any of its representatives until
the appeal therefrom was finally resolved and that any enforcement
thereof would be unauthorized.54
The present Consolidated Petition 55 for certiorari and prohibition under
Rule 65 was filed on 2 October 2006, assailing the two Orders of the
Manila RTC dated 25 July and 15 August 2006 and the Temporary
Restraining Order dated 1 August 2006 of the Court of Appeals. Through
an Urgent Manifestation and Motion 56 dated 9 October 2006, petitioner
informed the Court that on 22 September 2006, the Court of Appeals
hearing Lilia Cheng's petition had granted a writ of preliminary
injunction in her favor.57 Thereafter, petitioner sought as well the
nullification of the 22 September 2006 Resolution of the Court of
Appeals, thereby constituting the fourth ruling assailed in the instant
petition.58
The Court had initially granted a Temporary Restraining Order 59 dated 6
October 2006 and later on a Supplemental Temporary Restraining
Order60 dated 13 October 2006 in petitioner's favor, enjoining the
implementation of the assailed rulings of the Manila RTC and the Court
of Appeals. However, on respondents' motion, the Court, through a
Resolution61 dated 11 December 2006, suspended the implementation of
the restraining orders it had earlier issued.
Oral arguments were held on 17 January 2007. The Court consolidated
the issues for argument as follows:
150

1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15
August 2006 which deferred the implementation of its Order dated 12
January 2006, and the Court of Appeals, in issuing its Resolution dated 1
August 2006, which ordered the status quo in relation to the 1 July 2005
Order of the RTC-Makati and the 12 January 2006 Order of the RTCManila, both of which authorized the examination of bank accounts
under Section 11 of Rep. Act No. 9160 (AMLA), commit grave abuse of
discretion?
(a) Is an application for an order
authorizing inquiry into or examination
of bank accounts or investments under
Section 11 of the AMLA ex-parte in
nature or one which requires notice and
hearing?cralawred
(b) What legal procedures and standards
should be observed in the conduct of the
proceedings for the issuance of said
order?cralawred
(c) Is such order susceptible to legal
challenges and judicial review?
2. Is it proper for this Court at this time and in this case
to inquire into and pass upon the validity of the 1 July
2005 Order of the RTC-Makati and the 12 January 2006
Order of the RTC-Manila, considering the pendency of
CA G.R. SP No. 95-198 (Lilia Cheng v. Republic)
wherein the validity of both orders was challenged? 62
After the oral arguments, the parties were directed to file their respective
memoranda, which they did,63 and the petition was thereafter deemed
submitted for resolution.
II.
Petitioner's general advocacy is that the bank inquiry orders issued by
the Manila and Makati RTCs are valid and immediately enforceable
whereas the assailed rulings, which effectively stayed the enforcement of
the Manila and Makati RTCs bank inquiry orders, are sullied with grave
abuse of discretion. These conclusions flow from the posture that a bank
inquiry order, issued upon a finding of probable cause, may be issued ex
parte and, once issued, is immediately executory. Petitioner further
argues that the information obtained following the bank inquiry is
necessarily beneficial, if not indispensable, to the AMLC in discharging
its awesome responsibility regarding the effective implementation of the
AMLA and that any restraint in the disclosure of such information to
appropriate agencies or other judicial fora would render meaningless the
relief supplied by the bank inquiry order.

Petitioner raises particular arguments questioning Lilia Cheng's right to

seek injunctive relief before the Court of Appeals, noting that not one of
the bank inquiry orders is directed against her. Her "cryptic assertion"
that she is the wife of Cheng Yong cannot, according to petitioner,
"metamorphose into the requisite legal standing to seek redress for an
imagined injury or to maintain an action in behalf of another." In the
same breath, petitioner argues that Alvarez cannot assert any violation of
the right to financial privacy in behalf of other persons whose bank
accounts are being inquired into, particularly those other persons named
in the Makati RTC bank inquiry order who did not take any step to
oppose such orders before the courts.
Ostensibly, the proximate question before the Court is whether a bank
inquiry order issued in accordance with Section 10 of the AMLA may be
stayed by injunction. Yet in arguing that it does, petitioner relies on what
it posits as the final and immediately executory character of the bank
inquiry orders issued by the Manila and Makati RTCs. Implicit in that
position is the notion that the inquiry orders are valid, and such notion is
susceptible to review and validation based on what appears on the face
of the orders and the applications which triggered their issuance, as well
as the provisions of the AMLA governing the issuance of such orders.
Indeed, to test the viability of petitioner's argument, the Court will have
to be satisfied that the subject inquiry orders are valid in the first place.
However, even from a cursory examination of the applications for
inquiry order and the orders themselves, it is evident that the orders are
not in accordance with law.
III.
A brief overview of the AMLA is called for.
Money laundering has been generally defined by the International
Criminal Police Organization (Interpol) `as "any act or attempted act to
conceal or disguise the identity of illegally obtained proceeds so that
they appear to have originated from legitimate sources." 64 Even before
the passage of the AMLA, the problem was addressed by the Philippine
government through the issuance of various circulars by the Bangko
Sentral ng Pilipinas. Yet ultimately, legislative proscription was
necessary, especially with the inclusion of the Philippines in the
Financial Action Task Force's list of non-cooperative countries and
territories in the fight against money laundering. 65 The original AMLA,
Republic Act (R.A.) No. 9160, was passed in 2001. It was amended by
R.A. No. 9194 in 2003.
Section 4 of the AMLA states that "[m]oney laundering is a crime
whereby the proceeds of an unlawful activity as [defined in the law] are
transacted, thereby making them appear to have originated from
legitimate sources."66 The section further provides the three modes

enforcement of the AMLA provisions and the initiation of legal actions

authorized in the AMLA such as civil forefeiture proceedings and
complaints for the prosecution of money laundering offenses. 67
In addition to providing for the definition and penalties for the crime of
money laundering, the AMLA also authorizes certain provisional
remedies that would aid the AMLC in the enforcement of the AMLA.
These are the "freeze order" authorized under Section 10, and the "bank
inquiry order" authorized under Section 11.
Respondents posit that a bank inquiry order under Section 11 may be
obtained only upon the pre-existence of a money laundering offense case
already filed before the courts. 68 The conclusion is based on the phrase
"upon order of any competent court in cases of violation of this Act," the
word "cases" generally understood as referring to actual cases pending
with the courts.
We are unconvinced by this proposition, and agree instead with the then
Solicitor General who conceded that the use of the phrase "in cases of"
was unfortunate, yet submitted that it should be interpreted to mean "in
the event there are violations" of the AMLA, and not that there are
already cases pending in court concerning such violations. 69 If the
contrary position is adopted, then the bank inquiry order would be
limited in purpose as a tool in aid of litigation of live cases, and wholly
inutile as a means for the government to ascertain whether there is
sufficient evidence to sustain an intended prosecution of the account
holder for violation of the AMLA. Should that be the situation, in all
likelihood the AMLC would be virtually deprived of its character as a
discovery tool, and thus would become less circumspect in filing
complaints against suspect account holders. After all, under such set-up
the preferred strategy would be to allow or even encourage the
indiscriminate filing of complaints under the AMLA with the hope or
expectation that the evidence of money laundering would somehow
surface during the trial. Since the AMLC could not make use of the bank
inquiry order to determine whether there is evidentiary basis to prosecute
the suspected malefactors, not filing any case at all would not be an
alternative. Such unwholesome set-up should not come to pass. Thus
Section 11 cannot be interpreted in a way that would emasculate the
remedy it has established and encourage the unfounded initiation of
complaints for money laundering.
Still, even if the bank inquiry order may be availed of without need of a
pre-existing case under the AMLA, it does not follow that such order
may be availed of ex parte. There are several reasons why the AMLA
does not generally sanction ex parte applications and issuances of the
bank inquiry order.
IV.

through which the crime of money laundering is committed. Section 7

creates the AMLC and defines its powers, which generally relate to the
151

It is evident that Section 11 does not specifically authorize, as a general

rule, the issuance ex parte of the bank inquiry order. We quote the
provision in full:
SEC. 11. Authority to Inquire into Bank Deposits. Notwithstanding
the provisions of Republic Act No. 1405, as amended, Republic Act No.
6426, as amended, Republic Act No. 8791, and other laws, the AMLC
may inquire into or examine any particular deposit or investment with
any banking institution or non bank financial institution upon order of
any competent court in cases of violation of this Act, when it has been
established that there is probable cause that the deposits or investments
are related to an unlawful activity as defined in Section 3(i) hereof or a
money laundering offense under Section 4 hereof, except that no court
order shall be required in cases involving unlawful activities defined in
Sections 3(i)1, (2) and (12).
To ensure compliance with this Act, the Bangko Sentral
ng Pilipinas (BSP) may inquire into or examine any
deposit of investment with any banking institution or non
bank financial institution when the examination is made
in the course of a periodic or special examination, in
accordance with the rules of examination of the
BSP.70 (Emphasis supplied)cralawlibrary
Of course, Section 11 also allows the AMLC to inquire into bank
accounts without having to obtain a judicial order in cases where there is
probable cause that the deposits or investments are related to kidnapping
for ransom,71 certain violations of the Comprehensive Dangerous Drugs
Act of 2002,72 hijacking and other violations under R.A. No. 6235,
destructive arson and murder. Since such special circumstances do not
apply in this case, there is no need for us to pass comment on this
proviso. Suffice it to say, the proviso contemplates a situation distinct
from that which presently confronts us, and for purposes of the
succeeding discussion, our reference to Section 11 of the AMLA
excludes said proviso.
In the instances where a court order is required for the issuance of the
bank inquiry order, nothing in Section 11 specifically authorizes that
such court order may be issued ex parte. It might be argued that this
silence does not preclude the ex parte issuance of the bank inquiry order
since the same is not prohibited under Section 11. Yet this argument falls
when the immediately preceding provision, Section 10, is examined.
SEC. 10. Freezing of Monetary Instrument or Property. The Court of
Appeals, upon application ex parteby the AMLC and after determination
that probable cause exists that any monetary instrument or property is in
any way related to an unlawful activity as defined in Section 3(i) hereof,
may issue a freeze order which shall be effective immediately. The
freeze order shall be for a period of twenty (20) days unless extended by
the court.73

Although oriented towards different purposes, the freeze order under

Section 10 and the bank inquiry order under Section 11 are similar in
that they are extraordinary provisional reliefs which the AMLC may
avail of to effectively combat and prosecute money laundering offenses.
Crucially, Section 10 uses specific language to authorize an ex
parte application for the provisional relief therein, a circumstance absent
in Section 11. If indeed the legislature had intended to authorize ex
parte proceedings for the issuance of the bank inquiry order, then it could
have easily expressed such intent in the law, as it did with the freeze
order under Section 10.

The Court could divine the sense in allowing ex parte proceedings under
Section 10 and in proscribing the same under Section 11. A freeze order
under Section 10 on the one hand is aimed at preserving monetary
instruments or property in any way deemed related to unlawful activities
as defined in Section 3(i) of the AMLA. The owner of such monetary
instruments or property would thus be inhibited from utilizing the same
for the duration of the freeze order. To make such freeze order anteceded
by a judicial proceeding with notice to the account holder would allow
for or lead to the dissipation of such funds even before the order could be
issued.

Even more tellingly, the current language of Sections 10 and 11 of the

AMLA was crafted at the same time, through the passage of R.A. No.
9194. Prior to the amendatory law, it was the AMLC, not the Court of
Appeals, which had authority to issue a freeze order, whereas a bank
inquiry order always then required, without exception, an order from a
competent court.74 It was through the same enactment that ex

On the other hand, a bank inquiry order under Section 11 does not
necessitate any form of physical seizure of property of the account
holder. What the bank inquiry order authorizes is the examination of the
particular deposits or investments in banking institutions or non-bank
financial institutions. The monetary instruments or property deposited
with such banks or financial institutions are not seized in a physical
sense, but are examined on particular details such as the account holder's
record of deposits and transactions. Unlike the assets subject of the
freeze order, the records to be inspected under a bank inquiry order
cannot be physically seized or hidden by the account holder. Said records
are in the possession of the bank and therefore cannot be destroyed at the
instance of the account holder alone as that would require the
extraordinary cooperation and devotion of the bank.

parte proceedings were introduced for the first time into the AMLA, in
the case of the freeze order which now can only be issued by the Court
of Appeals. It certainly would have been convenient, through the same
amendatory law, to allow a similar ex parte procedure in the case of a
bank inquiry order had Congress been so minded. Yet nothing in the
provision itself, or even the available legislative record, explicitly points
to an ex parte judicial procedure in the application for a bank inquiry
order, unlike in the case of the freeze order.

the case of inquiry orders under Section 11.76 These implementing rules
were promulgated by the Bangko Sentral ng Pilipinas, the Insurance
Commission and the Securities and Exchange Commission, 77 and if it

Interestingly, petitioner's memorandum does not attempt to demonstrate

before the Court that the bank inquiry order under Section 11 may be
issued ex parte, although the petition itself did devote some space for
that argument. The petition argues that the bank inquiry order is "a
special and peculiar remedy, drastic in its name, and made necessary
because of a public necessity' [t]hus, by its very nature, the application
for an order or inquiry must necessarily, be ex parte." This argument is
insufficient justification in light of the clear disinclination of Congress to
allow the issuance ex parte of bank inquiry orders under Section 11, in
contrast to the legislature's clear inclination to allow the ex parte grant of
freeze orders under Section 10.

was the true belief of these institutions that inquiry orders could be
issued ex parte similar to freeze orders, language to that effect would
have been incorporated in the said Rules. This is stressed not because the
implementing rules could authorize ex parte applications for inquiry
orders despite the absence of statutory basis, but rather because the
framers of the law had no intention to allow such ex parte applications.

Without doubt, a requirement that the application for a bank inquiry

order be done with notice to the account holder will alert the latter that
there is a plan to inspect his bank account on the belief that the funds
therein are involved in an unlawful activity or money laundering
offense.80 Still, the account holder so alerted will in fact be unable to do

That the AMLA does not contemplate ex parte proceedings in

applications for bank inquiry orders is confirmed by the present
implementing rules and regulations of the AMLA, promulgated upon the
passage of R.A. No. 9194. With respect to freeze orders under Section
10, the implementing rules do expressly provide that the applications for
freeze orders be filed ex parte,75 but no similar clearance is granted in

Even the Rules of Procedure adopted by this Court in A.M. No. 05-1104-SC78 to enforce the provisions of the AMLA specifically
authorize ex parte applications with respect to freeze orders under
Section 1079 but make no similar authorization with respect to bank
inquiry orders under Section 11.

anything to conceal or cleanse his bank account records of suspicious or

anomalous transactions, at least not without the whole-hearted
cooperation of the bank, which inherently has no vested interest to aid
the account holder in such manner.
V.
The necessary implication of this finding that Section 11 of the AMLA
does not generally authorize the issuance ex parteof the bank inquiry
152

order would be that such orders cannot be issued unless notice is given
to the owners of the account, allowing them the opportunity to contest
the issuance of the order. Without such a consequence, the legislated
distinction between ex parte proceedings under Section 10 and those
which are not ex parte under Section 11 would be lost and rendered
useless.
There certainly is fertile ground to contest the issuance of an ex
parte order. Section 11 itself requires that it be established that "there is
probable cause that the deposits or investments are related to unlawful
activities," and it obviously is the court which stands as arbiter whether
there is indeed such probable cause. The process of inquiring into the
existence of probable cause would involve the function of determination
reposed on the trial court. Determination clearly implies a function of
adjudication on the part of the trial court, and not a mechanical
application of a standard pre-determination by some other body. The
word "determination" implies deliberation and is, in normal legal
contemplation, equivalent to "the decision of a court of justice."81
The court receiving the application for inquiry order cannot simply take
the AMLC's word that probable cause exists that the deposits or
investments are related to an unlawful activity. It will have to exercise its
own determinative function in order to be convinced of such fact. The
account holder would be certainly capable of contesting such probable
cause if given the opportunity to be apprised of the pending application
to inquire into his account; hence a notice requirement would not be an
empty spectacle. It may be so that the process of obtaining the inquiry
order may become more cumbersome or prolonged because of the notice
requirement, yet we fail to see any unreasonable burden cast by such
circumstance. After all, as earlier stated, requiring notice to the account
holder should not, in any way, compromise the integrity of the bank
records subject of the inquiry which remain in the possession and control
of the bank.
Petitioner argues that a bank inquiry order necessitates a finding of
probable cause, a characteristic similar to a search warrant which is
applied to and heard ex parte. We have examined the supposed analogy
between a search warrant and a bank inquiry order yet we remain to be
unconvinced by petitioner.
The Constitution and the Rules of Court prescribe particular
requirements attaching to search warrants that are not imposed by the
AMLA with respect to bank inquiry orders. A constitutional warrant
requires that the judge personally examine under oath or affirmation the
complainant and the witnesses he may produce, 82 such examination
being in the form of searching questions and answers. 83 Those are
impositions which the legislative did not specifically prescribe as to the
bank inquiry order under the AMLA, and we cannot find sufficient legal
basis to apply them to Section 11 of the AMLA. Simply put, a bank

inquiry order is not a search warrant or warrant of arrest as it

contemplates a direct object but not the seizure of persons or property.
Even as the Constitution and the Rules of Court impose a high
procedural standard for the determination of probable cause for the
issuance of search warrants which Congress chose not to prescribe for
the bank inquiry order under the AMLA, Congress nonetheless
disallowed ex parte applications for the inquiry order. We can discern
that in exchange for these procedural standards normally applied to
search warrants, Congress chose instead to legislate a right to notice and
a right to be heard' characteristics of judicial proceedings which are
not ex parte. Absent any demonstrable constitutional infirmity, there is
no reason for us to dispute such legislative policy choices.
VI.
The Court's construction of Section 11 of the AMLA is undoubtedly
influenced by right to privacy considerations. If sustained, petitioner's
argument that a bank account may be inspected by the government
following an ex parteproceeding about which the depositor would know
nothing would have significant implications on the right to privacy, a
right innately cherished by all notwithstanding the legally recognized
exceptions thereto. The notion that the government could be so
empowered is cause for concern of any individual who values the right
to privacy which, after all, embodies even the right to be "let
alone," the most comprehensive of rights and the right most valued by
civilized people.84
One might assume that the constitutional dimension of the right to
privacy, as applied to bank deposits, warrants our present inquiry. We
decline to do so. Admittedly, that question has proved controversial in
American jurisprudence. Notably, the United States Supreme Court
in U.S. v. Miller85 held that there was no legitimate expectation of
privacy as to the bank records of a depositor.86 Moreover, the text of our
Constitution has not bothered with the triviality of allocating specific
rights peculiar to bank deposits.
However, sufficient for our purposes, we can assert there is a right to
privacy governing bank accounts in the Philippines, and that such right
finds application to the case at bar. The source of such right is statutory,
expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy
Act of 1955. The right to privacy is enshrined in Section 2 of that law, to
wit:
SECTION 2. All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued by
the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of

the depositor, or in cases of impeachment, or upon order of a competent

court in cases of bribery or dereliction of duty of public officials, or in
cases where the money deposited or invested is the subject matter of the
litigation. (Emphasis supplied)cralawlibrary
Because of the Bank Secrecy Act, the confidentiality of bank deposits
remains a basic state policy in the Philippines. 87Subsequent laws,
including the AMLA, may have added exceptions to the Bank Secrecy
Act, yet the secrecy of bank deposits still lies as the general rule. It falls
within the zones of privacy recognized by our laws. 88 The framers of
the 1987 Constitution likewise recognized that bank accounts are not
covered by either the right to information 89 under Section 7, Article III
or under the requirement of full public disclosure 90 under Section 28,
Article II.91 Unless the Bank Secrecy Act is repealed or
amended, the legal order is obliged to conserve the absolutely
confidential nature of Philippine bank deposits.
Any exception to the rule of absolute confidentiality must be specifically
legislated. Section 2 of the Bank Secrecy Act itself prescribes exceptions
whereby these bank accounts may be examined by "any person,
government official, bureau or office"; namely when: (1) upon written
permission of the depositor; (2) in cases of impeachment; (3) the
examination of bank accounts is upon order of a competent court in
cases of bribery or dereliction of duty of public officials; and (4) the
money deposited or invested is the subject matter of the litigation.
Section 8 of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices
Act, has been recognized by this Court as constituting an additional
exception to the rule of absolute confidentiality,92 and there have been
other similar recognitions as well.93
The AMLA also provides exceptions to the Bank Secrecy Act. Under
Section 11, the AMLC may inquire into a bank account upon order of
any competent court in cases of violation of the AMLA, it having been
established that there is probable cause that the deposits or investments
are related to unlawful activities as defined in Section 3(i) of the law, or
a money laundering offense under Section 4 thereof. Further, in instances
where there is probable cause that the deposits or investments are related
to kidnapping for ransom,94 certain violations of the Comprehensive
Dangerous Drugs Act of 2002, 95 hijacking and other violations under
R.A. No. 6235, destructive arson and murder, then there is no need for
the AMLC to obtain a court order before it could inquire into such
accounts.
It cannot be successfully argued the proceedings relating to the bank
inquiry order under Section 11 of the AMLA is a "litigation"
encompassed in one of the exceptions to the Bank Secrecy Act which is
when "the money deposited or invested is the subject matter of the
153

litigation." The orientation of the bank inquiry order is simply to serve as

a provisional relief or remedy. As earlier stated, the application for such
does not entail a full-blown trial.
Nevertheless, just because the AMLA establishes additional exceptions
to the Bank Secrecy Act it does not mean that the later law has dispensed
with the general principle established in the older law that "[a]ll deposits
of whatever nature with banks or banking institutions in the Philippines
x x x are hereby considered as of an absolutely confidential
nature."96Indeed, by force of statute, all bank deposits are absolutely
confidential, and that nature is unaltered even by the legislated
exceptions referred to above. There is disfavor towards construing these
exceptions in such a manner that would authorize unlimited discretion on
the part of the government or of any party seeking to enforce those
exceptions and inquire into bank deposits. If there are doubts in
upholding the absolutely confidential nature of bank deposits against
affirming the authority to inquire into such accounts, then such doubts
must be resolved in favor of the former. Such a stance would persist
unless Congress passes a law reversing the general state policy of
preserving the absolutely confidential nature of Philippine bank
accounts.
The presence of this statutory right to privacy addresses at least one of
the arguments raised by petitioner, that Lilia Cheng had no personality to
assail the inquiry orders before the Court of Appeals because she was not
the subject of said orders. AMLC Resolution No. 75, which served as the
basis in the successful application for the Makati inquiry order, expressly
adverts to Citibank Account No. 88576248 "owned by Cheng Yong
and/or Lilia G. Cheng with Citibank N.A.,"97 whereas Lilia Cheng's
petition before the Court of Appeals is accompanied by a certification
from Metrobank that Account Nos. 300852436-0 and 700149801-7, both
of which are among the subjects of the Manila inquiry order, are
accounts in the name of "Yong Cheng or Lilia Cheng." 98 Petitioner does

standing to vindicate the right to secrecy that attaches to said accounts

and their owners. This statutory right to privacy will not prevent the
courts from authorizing the inquiry anyway upon the fulfillment of the
requirements set forth under Section 11 of the AMLA or Section 2 of the
Bank Secrecy Act; at the same time, the owner of the accounts have the
right to challenge whether the requirements were indeed complied with.
VII.
There is a final point of concern which needs to be addressed. Lilia
Cheng argues that the AMLA, being a substantive penal statute, has no
retroactive effect and the bank inquiry order could not apply to deposits
or investments opened prior to the effectivity of Rep. Act No. 9164, or
on 17 October 2001. Thus, she concludes, her subject bank accounts,
opened between 1989 to 1990, could not be the subject of the bank
inquiry order lest there be a violation of the constitutional prohibition
against ex post facto laws.
No ex post facto law may be enacted,99 and no law may be construed in
such fashion as to permit a criminal prosecution offensive to the ex post
facto clause. As applied to the AMLA, it is plain that no person may be
prosecuted under the penal provisions of the AMLA for acts committed
prior to the enactment of the law on 17 October 2001. As much was
understood by the lawmakers since they deliberated upon the AMLA,
and indeed there is no serious dispute on that point.
Does the proscription against ex post facto laws apply to the
interpretation of Section 11, a provision which does not provide for a
penal sanction but which merely authorizes the inspection of suspect
accounts and deposits? The answer is in the affirmative. In this
jurisdiction, we have defined an ex post facto law as one which either:
(1) makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act;

not specifically deny that Lilia Cheng holds rights of ownership over the
three said accounts, laying focus instead on the fact that she was not
named as a subject of either the Makati or Manila RTC inquiry orders.
We are reasonably convinced that Lilia Cheng has sufficiently
demonstrated her joint ownership of the three accounts, and such
conclusion leads us to acknowledge that she has the standing to assail
via certiorari the inquiry orders authorizing the examination of her bank
accounts as the orders interfere with her statutory right to maintain the
secrecy of said accounts.

(2) aggravates a crime, or makes it greater than it was,

when committed;

While petitioner would premise that the inquiry into Lilia Cheng's
accounts finds root in Section 11 of the AMLA, it cannot be denied that
the authority to inquire under Section 11 is only exceptional in character,
contrary as it is to the general rule preserving the secrecy of bank
deposits. Even though she may not have been the subject of the inquiry
orders, her bank accounts nevertheless were, and she thus has the

(5) assuming to regulate civil rights and remedies only,

in effect imposes penalty or deprivation of a right for
something
which
when
done
was
lawful;
andcralawlibrary

(3) changes the punishment and inflicts a greater

punishment than the law annexed to the crime when
committed;
(4) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law
required at the time of the commission of the offense;

(6) deprives a person accused of a crime of some lawful

protection to which he has become entitled, such as the

protection of a former conviction or acquittal, or a

proclamation of amnesty. (Emphasis supplied)100
Prior to the enactment of the AMLA, the fact that bank accounts or
deposits were involved in activities later on enumerated in Section 3 of
the law did not, by itself, remove such accounts from the shelter of
absolute confidentiality. Prior to the AMLA, in order that bank accounts
could be examined, there was need to secure either the written
permission of the depositor or a court order authorizing such
examination, assuming that they were involved in cases of bribery or
dereliction of duty of public officials, or in a case where the money
deposited or invested was itself the subject matter of the litigation. The
passage of the AMLA stripped another layer off the rule on absolute
confidentiality that provided a measure of lawful protection to the
account holder. For that reason, the application of the bank inquiry order
as a means of inquiring into records of transactions entered into prior to
the passage of the AMLA would be constitutionally infirm, offensive as
it is to the ex post facto clause.
Still, we must note that the position submitted by Lilia Cheng is much
broader than what we are willing to affirm. She argues that the
proscription against ex post facto laws goes as far as to prohibit any
inquiry into deposits or investments included in bank accounts opened
prior to the effectivity of the AMLA even if the suspect transactions were
entered into when the law had already taken effect. The Court recognizes
that if this argument were to be affirmed, it would create a horrible
loophole in the AMLA that would in turn supply the means to fearlessly
engage in money laundering in the Philippines; all that the criminal has
to do is to make sure that the money laundering activity is facilitated
through a bank account opened prior to 2001. Lilia Cheng admits that
"actual money launderers could utilize the ex post facto provision of the
Constitution as a shield" but that the remedy lay with Congress to amend
the law. We can hardly presume that Congress intended to enact a selfdefeating law in the first place, and the courts are inhibited from such a
construction by the cardinal rule that "a law should be interpreted with a
view to upholding rather than destroying it."101
Besides, nowhere in the legislative record cited by Lilia Cheng does it
appear that there was an unequivocal intent to exempt from the bank
inquiry order all bank accounts opened prior to the passage of the
AMLA. There is a cited exchange between Representatives Ronaldo
Zamora and Jaime Lopez where the latter confirmed to the former that
"deposits are supposed to be exempted from scrutiny or monitoring if
they are already in place as of the time the law is enacted." 102 That
statement does indicate that transactions already in place when the
AMLA was passed are indeed exempt from scrutiny through a bank
inquiry order, but it cannot yield any interpretation that records of
transactions undertaken after the enactment of the AMLA are similarly
exempt. Due to the absence of cited authority from the legislative record
154

that unqualifiedly supports respondent Lilia Cheng's thesis, there is no

cause for us to sustain her interpretation of the AMLA, fatal as it is to
the anima of that law.
IX.
We are well aware that Lilia Cheng's petition presently pending before
the Court of Appeals likewise assails the validity of the subject bank
inquiry orders and precisely seeks the annulment of said orders. Our
current declarations may indeed have the effect of preempting that0
petition. Still, in order for this Court to rule on the petition at bar which
insists on the enforceability of the said bank inquiry orders, it is
necessary for us to consider and rule on the same question which after all
is a pure question of law.
WHEREFORE, the PETITION is DISMISSED. No pronouncement as
to costs.
SO ORDERED.

155