1. PEOPLE OF THE PHILIPPINES vs.

ZOSIMO CRISOLOGO,
alias "AMANG", G.R. No. 74145, June 17, 1987
2. GEORGE L. TUBB v. PEOPLE OF THE PHILIPPINES and
THE COURT OF APPEALS, [G.R. No. L-9811. April 22, 1957.]
3. PEOPLE OF THE PHILIPPINES, vs. THE PRESIDING JUDGE,
REGIONAL TRIAL COURT, FIRST 'JUDICIAL REGION,
BRANCH XLV, URDANETA, PANGASINAN, and RODOLFO
VALDEZ, JR., G.R. No. L-64731, October 26, 1983
4. BORJA VS. MENDOZA [77 SCRA 422; G.R. NO.L-45667; 20
JUN 1977]
5. PEOPLE VS. SALAS [143 SCRA 163; G.R. NO. L-66469; 29
JUL 1986]
6. FISCAL CELSO M. GIMENEZ and FEDERICO B. MERCADO
vs. HON. RAMON E. NAZARENO, Presiding Judge, Court of
First Instance of Cebu and TEODORO DE LA VEGA, JR. G.R.
No. L-37933 April 15, 1988,
7. People v Santos, G.R. Nos. 100225-26, 11 May 1993, 221
SCRA 715.
8. PEOPLE OF THE PHILIPPINES vs. RAUL SANTOS Y
NARCISO, MARIO MORALES Y BACANI, PETER DOE and
RICHARD DOE, Accused, RAUL SANTOS y NARCISO, G.R.
Nos. 100225-26 May 11, 1993
9. THE PEOPLE OF THE PHILIPPINES, vs. NARCISO PIZARRO,
G.R. No. L-36445 August 28, 1984
10. People v. Hernandez, G.R. No. 73603, 22 June 1988, 162 SCRA
422.
11. People v. Luvendino, 211 SCRA 36 (1992)
12. HON. ADELINA CALDERON-BARGAS v RTC, G.R. No. Nos.
103259-61 October 1, 1993
13. [G.R. No. L-2792. May 23, 1950.]

ROMEO JACA, Petitioner, v. MANUEL BLANCO, Judge of

the Court of First Instance of Iloilo, Respondent.
14. PEOPLE OF THE PHILIPPINES, vs. ALBERTO OPIDA y
QUIAMBAO and VIRGILIO MARCELO, G.R. No. L-46272 June
13, 1986
15. FRANCISCO BELTRAN, vs. FELIX SAMSON, Judge of the
Second Judicial District, and FRANCISCO JOSE, Provincial
Fiscal of Isabela, G.R. No. 32025 September 23, 1929
 EN BANC
June 17, 1987
G.R. No. 74145
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ZOSIMO CRISOLOGO, alias "AMANG", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Marcelino G. Agana III for defendant-appellant.
PADILLA, J.:
Appeal from a decision of the Court of First Instance of Davao del Sur in
Criminal Case No. 92 (76) convicting the defendant of robbery with
homicide, sentencing him to the death penalty, and ordering him to
indemnity the heirs of Martin Francisco the sums of P35,000.00 for loss of
life, P25,000.00 for funeral expenses, P30,000.00 for loss of earnings and
P20,000.00 for moral damages.
On 5 May 1976, a criminal complaint was filed by the Station Commander
with the Municipal Court of Magsaysay, Davao del Sur against the accused
Zosimo Crisologo alias "Amang," a deaf-mute, for robbery and homicide
alleged to have been committed on 1 May 1976 between ten to eleven
o'clock in the evening in Calamagoy, Poblacion Magsaysay, Davao del
Sur.
The following information was subsequently filed by the Provincial Fiscal
against the accused on 16 September 1977:
That on or about the 1st day of May, 1976, in the Municipality of
Magsaysay, Province of Davao del Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, armed with a bladed weapon, with violence against and
intimidation upon persons, and with intent of gain, did then and
there wilfully, unlawfully and feloniously rob Martin Francisco of
one (1) "Seiko 5 Actus" wrist watch valued at Four Hundred
(P400.00) Pesos and a two battery flashlight valued at Thirty
(P30.00) Pesos in the total amount of Four Hundred Thirty
(P430.00) Pesos, to the damage and prejudice of the said owner
in the amount aforesaid and on the same occasion, the above-
named accused, with intent to kill wilfully, unlawfully and
feloniously attack[ed] and stab[bed] the said Martin Francisco
with the same bladed weapon, thereby inflicting upon him
wounds which caused his death.
CONTRARY TO LAW with the aggravating circumstance of:
(a) disregard of the respect due the offended party on account of
his age; and
(b) night time.
Digos, Davao del Sur, Philippines, September 15, 1977.
On 12 December 1977, arraignment was set. The accused was allegedly
informed of the charge against him through sign language by Special
Policeman Alejandro Munoz a childhood acquaintance. Mr. Munoz
subsequently entered a plea of guilty on behalf of the accused. Upon
objection of counsel, however, this plea was disregarded and arraignment
was rescheduled until such time as the Court could avail of the services of
an expert in the sign language from the school of the deaf and dumb.
On 26 June 1979 the Court through another presiding judge, upon insistent
plea of defense counsel for a sign language expert to assist the accused,
again reset arraignment as no expert in sign language was available. The
School for the Deaf and Dumb in Pasay City was sent a copy of the court
order to enable it to furnish the court with an expert in sign language. No
such expert was made available.
On 9 November 1982, or after five years from the date of filing of the
information, and order through still another presiding judge was entered
directing that a representative of the School of the Deaf and Dumb in Bago
Gallera, Talomo District, Davao City be availed of to enable the accused to
intelligently express his understanding of a plea of guilty or not guilty.
Apparently no sign language expert or representative ever arrived.
On 6 April 1983, the accused through a counsel de oficio waived the
reading of the information and pleaded not guilty. Trial proceeded without
any evidence being presented on his part. Finally, on 10 February 1986,
without the services of an expert in sign language ever being utilized at any
stage of the proceedings, the accused was found guilty beyond reasonable
doubt of robbery with homicide and sentenced to die by electrocution.
Executive clemency was recommended, however, in view of the accused's
infirmity and his nearly ten-year detention as a suspect.
Counsel for the accused and the Solicitor-General now ask for the reversal
of the judgment of conviction due to the failure of the trial court to
safeguard the accused's right to due process of law and the insufficiency of
the purely circumstantial evidence presented to overcome the
constitutional presumption of innocence in favor of the accused.
We find their position to be well-taken.
The absence of an interpreter in sign language who could have conveyed
to the accused, a deaf-mute, the full facts of the offense with which he was
charged and who could also have communicated the accused's own
version of the circumstances which led to his implication in the crime,
deprived the accused of a full and fair trial and a reasonable opportunity to
defend himself. Not even the accused's final plea of not guilty can excuse
these inherently unjust circumstances.
The absence of a qualified interpreter in sign language and of any other
means, whether in writing or otherwise, to inform the accused of the
charges against him denied the accused his fundamental right to due
process of law. 1The accuracy and fairness of the factual process by which
the guilt or innocence of the accused was determined was not
safeguarded. The accused could not be said to have enjoyed the right to
be heard by himself and counsel, and to be informed of the nature and
cause of the accusation against him 2 in the proceedings where his life and
liberty were at stake.
In Terry v. State, 3 where a deaf-mute accused of manslaughter was not
provided with an interpreter despite repeated requests from counsel, it was
held:
... The Constitution of this state expressly provides that an
accused has a right to be heard by himself and counsel, also, to
demand the nature and cause of the accusation; against him,
and, further to be confronted by the witnesses, who are to testify
against him. In constructing this constitutional provision it needs
no discussion in deciding that all this must be done in a
manner by which the accused can know, the nature and the
cause of the accusation he is called upon to answer, and all
necessary means must be provided, and the law so
contemplates, that the accused must not only be confronted by
the witnesses against him, but he must be accorded all
necessary means to know and understand the testimony given
by said witnesses, and must be placed in a condition where he
can make his plea rebut such testimony, and give his own
version of the transaction upon which the accusation is based.
This the fundamental law accords, and for this the law must
provide. These humane provisions must not, and cannot, be
dependent upon the ability, financial or otherwise, of the accused
... [This] constitutional right ... would be meaningless and a vain
and useless provision unless the testimony of the witnesses
against him could be understood by the accused. Mere
confrontation of the witnesses would be useless, bordering upon
the farcical, if the accused could not hear or understand their
testimony. So, also, as to the nature and cause of the
accusation. In the absence of an interpreter it would be a
physical impossibility for the accused, a deaf-mute, to know or to
 understand the nature and cause of the accusation against him,
and, as here, he could only stand by helplessly, take his
medicine, or whatever may be coming to him, without knowing or
understanding, and all this in the teeth of the mandatory
constitutional rights which apply to an unfortunate afflicted
deafmute, just as it does to every person accused of a violation
of the criminal law. In other words the physical infirmity of this
appellant can in no sense lessen his rights under the
Constitution, and, in the proper administration of its laws, this
great and sovereign state must and will accord the means by
which its citizens, humble and afflicted though they may be, shall
receive all the rights, benefits and privileges which the
Constitution, laws, regulations, and rules of practice provide. 4
The basic constitutional infirmity alone in the conduct of the case against
the accused is, in our candid assessment, fatal to the judgment of
conviction meted out against him.
Aside from the unfair setting and circumstance in which the accused was
convicted, insufficiency of evidence to warrant a finding of guilty beyond
reasonable doubt also leads this Court to set aside the conviction. The
following events and circumstances are relevant in this regard:
On 1 May 1976, at past eight o'clock in the evening, the accused and the
deceased were last seen walking away together from a sari-sari store
where they had been drinking tuba steadily in apparent harmony. At
around eleven thirty of the same evening, the accused suddenly appeared
in the house of Wilson Evangelists, who was then with relatives butchering
a pig for the baptism of his child the following day. The accused was
panting and trembling, and told Wilson Evangelista in sign language that
he had come from Calamagoy, at the side of the canal, where there were
persons fighting on the road. Evangelista later testified that he noticed the
accused wearing a fatigue shirt with a blood-stain on it, and carrying a
flashlight.
On 2 May 1976, Patrolman Reynaldo Pinto, Jr., was told to investigate a
case of robbery with homicide with the deceased Martin Francisco as
victim, and to arrest the accused on the basis of Wilson Evangelista's
statement that he saw the accused with a bloodstained shirt the previous
evening when the crime could conceivably have occurred. Patrolman Pinto
did so that very day. Several days later, he was also able to recover the
deceased's wristwatch and flashlight from the house of the accused's
father allegedly through the assistance of the accused himself.
Upon being asked who killed the deceased, the accused allegedly admitted
to Pat. Pinto in sign language that it was he by making gestures which Pat.
Pinto interpreted to mean that the accused had been stoned by the
deceased, thus impelling the accused to stab the latter. This confession,
however, was not included in Pat. Pinto's affidavit as he allegedly forgot to
tell the investigator. He also acknowledge his failure to notify the accused
of his right to counsel before interrogation and investigation due to difficulty
in conveying the matter by sign language.
While it is true that Pat. Pinto and his companion were able to
get a statement from the accused without telling him in advance
of his constitutional rights, due to difficulty in explaining them in
sign language, the accused's statement by sign language was
coupled with his voluntary help in recovering the things
belonging to the deceased. Furthermore, the court considered
and took note of the plea of guilty which was entered into by the
accused on his first arraignment by sign language through Mr.
Alejandro Munoz who is an associate of the accused in their
younger days. (Emphasis supplied.)
We find the trial court's decision essentially lacking in that degree of
certainty in reason and conscience which is necessary to establish guilt
beyond reasonable doubt. As held in U.S. v. Lasada, 5 "By reasonable
doubt is not meant that which of possibility may arise, but it is that doubt
engendered by an investigation of the whole proof and an inability, after
such investigation, to let the mind rest easy upon the certainty of guilt.
Absolute certainty of guilt is not demanded by the law to convict of any
criminal charge but moral certainty is required, and this. certainty is
required as to every proposition of proof requisite to constitute the
offense." 6 Facts must be presented methodically and meticulously,
contradictions must be clarified, and gaps and loopholes in the evidence
must be adequately explained "to the end that the court's mind may not be
tortured by doubts, the innocent [not] suffer and the guilty [go]
unpunished." 7
Such standards, we believe, have not been met in this case.
Patrolman Pinto, the interrogator to whom the accused allegedly confessed
the details which led to a presumption that lie killed the deceased,
expressly admitted that he could have misinterpreted the gestures made by
the accused as he had only a slight knowledge of sign language.
Furthermore, the same witness did not give fully credible replies when
questioned about the possibility that he was ordered to proceed to the
house of accused's father to get the incriminating watch and flashlight
which were delivered there earlier by a certain Nicolas.
The bloodstain on the accused's shirt could conceivably have come also
from the fighting that the accused told Wilson Evangelista he had
witnessed. Considering that the deceased sustained fifteen (15) stab
wounds, twelve (12) of which could have separately caused death,
according to the medical officer who examined the body of the deceased,
the presence of a single bloodstain on the front of accused's shirt hardly
supports the conclusion reached by the trial court, especially when related
to the high degree of intoxication appreciated against the accused. As
testified to by the medical officer who, as stated, examined the body of the
deceased, the stab wounds could also have been inflicted by several
assailants using different weapons. That the accused looked much more
robust than the deceased and thus could have committed the crime does
not by itself deserve the weight and consideration that the trial court gave
to it. Furthermore, the rubber slippers and eyeglasses found near the
scene of the crime were never Identified or explained.

The trial court's appreciation of the plea of guilty earlier entered for the
Based on the above circumstances and evidence, the trial court found the
accused by Special Policeman Alejandro Munoz, which the first presiding
accused guilty beyond reasonable doubt of the crime charged, reasoning
judge earlier discarded, is regrettable, to say the least, especially when
as follows:
considered with the admittedly limited knowledge in sign language on the
part of Pat. Munoz and in relation to the investigator's own admission that
The prosecution proved and which this Court finds that the the accused was never informed of his right to counsel. 8
accused was the last person to be seen with the deceased, and
that he was drunk when he left the store of prosecution witness
WHEREFORE, the appealed decision is hereby reversed. The accused
Salome del Socorro together with the deceased. The Court also
is acquitted, on the ground that his guilt has not been proved beyond
finds that the accused's clothes had bloodstain on it when he
reasonable doubt. The Court hereby orders his immediate release from
went to the house of prosecution witness Wilson Evangelista at
confinement, unless he is legally detained for some other cause or offense.
11:30 in the evening of May 1, 1976, the night when the
deceased was robbed and killed. The seiko 5 actus wrist watch
and the flashlight colored red and white both belonging to the SO ORDERED.
deceased Martin Francisco were recovered from the possession
of the accused and which recovery was done with his help, The
unexplained possession by the accused of the properties
belonging to the deceased proved that he took these things
unlawfully. The fifteen (15) stab wounds which were inflicted on
the deceased, many of which were fatal wounds proved that a
much younger [man] than the deceased could have inflicted the
same. In the case at bar, the accused is very much younger than
the deceased who was 63 years old at the time of his death, ...
frail and without physical attributes, unlike the accused who
looks healthy, robust and young ...
 EN BANC
[G.R. No. L-9811. April 22, 1957.]
GEORGE L. TUBB, Petitioner, v. PEOPLE OF THE PHILIPPINES and
THE COURT OF APPEALS, Respondents.
Solicitor General Ambrosio Padilla and Solicitor Antonio Pelaez,
Jalandoni and Eduardo D. Gutierrez for Petitioner.
A. Torres for Respondents.
SYLLABUS
1. CRIMINAL LAW; ESTAFA; MISAPPROPRIATION OF FUNDS HELD IN
TRUST DISTINCT FROM SWINDLING THROUGH FALSE PRETENSES.
— Where the accused is charged with the misappropriation of funds held
by him in trust and with the obligation to return the same, under Article 315,
paragraph 1(b) of the Revised Penal Code, he can not be convicted of
swindling by means of false pretenses, under paragraph 2(a) of said
Article, without violating his constitutional right to be informed of the nature
and cause of the accusation against him.
2. ID.; ID.; DEMAND NOT A CONDITION PRECEDENT TO THE
EXISTENCE OF THE CRIME. — The law does not require a demand as a
condition precedent to the existence of the crime of embezzlement. The
failure to account, upon demand, for funds or property held in trust, is
circumstantial evidence of misappropriation, which may be established by
other proof.
DECISION
CONCEPCION, J.:
This is a petition for review by certiorari of a decision of the Court of
Appeals. The facts are set forth in said decision, from which we
quote:jgc:chanrobles.com.ph
"On August 15, 1947, Accused George L. Tubb called on complainant
William P. Quasha at the latter’s office at Dasmariñas St., Manila. The
accused had known Quasha earlier in the same year 1947 when he was
defended by said Quasha in a court-martial case. During the meeting,
Tubb talked Quasha into investing in the rattan business, and said that
rattan could be bought for P0.20 a piece in Southern Luzon and sold for
P0.70 a piece in Manila. Quasha delivered the sum of P6,000.00 to the
accused on the following day, August 16th, with the understanding that the
money shall be used exclusively by the accused in the purchase of rattan
for resale in Manila; that the rattan so bought shall be brought to Manila
within a few days; and, that the profit to be realized from the sale shall be
divided equally between the accused and the complainant after the capital
of P6,000.00 has been returned to the latter.
"The prosecution has also shown that on August 21, 1947, complainant
received a telegram from the accused, who was in Calauag, Quezon
province, asking him to procure a license from the Bureau of Forestry for
the purchase of forest products (Exhibit C). The complainant replied in a
letter (Exhibit E, dated August 22, 1947), saying that although a license
was not required to purchase forest products, he was sending to him
(Tubb) an application to cut and gather products as a lessee or
concessionaire. This letter was received by the accused, who sent back
the application, duly accomplished, in a letter of the said accused (Exhibit
D, dated August 27, 1947) through defense witness Amado Resurreccion.
The license was secured and same sent to the accused. On September
16, 1947, when the complainant did not receive a word from the accused,
the said complainant sent a telegram of inquiry (Exhibit G), but the same
was answered by the postmaster of Calauag, Quezon, whose telegram
(Exhibit H) disclosed that the accused was no longer residing in Calauag.
Quasha went to the former office of the accused at the Samanillo Building,
but he was informed that the latter had not been heard from for some time.
"Sometime in 1948, Quasha met the accused at the Manila Hotel. Quasha
asked the accused what he (accused) had done with his P6,000.00. The
accused merely said that there was no use telling what happened, but that
he will try to pay the complainant back as he was then working for one
Gabino Angchuan of Cebu City and could get money from his said
employer. Quasha did not hear from the accused for a long time again after
their chance meeting at the Manila Hotel. The complainant wrote to the
accused in Cebu City, care of Gabino Angchuan, but his letter was not
answered. When the complainant heard that the accused was in Cagayan
de Oro, Oriental Misamis, the complainant wrote to him, threatening him
with a criminal action if he did not pay within a period of one month
(Exhibits K and J, dated July 25, 1949, and January 28, 1950,
respectively).
"The accused did not take the witness-stand, but his counsel presented
Avelino Leyco, Amado Resurreccion and Joe Oberly, as his witnesses. It is
argued by the defense that the accused, together with Amado
Resurreccion and with the assistance of Avelino Leyco, did buy plenty of
rattan in Polillo and in Calauag, but they get drenched in the rain due to the
typhoons which visited those places, so that they become moldy and
spoiled."cralaw virtua1aw library
"The trial court convicted the accused of the crime of estafa, as defined
and penalized under Article 31O, subsection 1(b), of the Revised Penal
Code, and sentenced him to an imprisonment of one year of prision
correccional, to indemnify the complainant in the sum of P6,000.00, with
subsidiary imprisonment in case of insolvency, and to pay the costs.
"In this appeal, the main question is whether appellant is criminally liable
for estafa or civilly liable only for the principal sum of P6,000.00. In support
of its contention, the defense insists that there was a lawful partnership
between the appellant and the complainant and the failure of the venture
rendered the former liable only for a liquidation of the partnership.
"After carefully going over the evidence of record, we are not at all
convinced that appellant actually bought rattan out of the money entrusted
to him by the offended party for the purpose. The appellant did not advise
the complainant of his whereabouts after he left Calauag, Quezon, despite
the fact that he and Amado Resurreccion allegedly returned to Manila after
leaving Calauag. After complainant met the appellant by chance at the
Manila Hotel, the latter again absconded, so that despite the length of time
given said appellant to repay the money received by him for a specific
purpose, the complainant was finally compelled to go to court. The
unexplained conduct of the appellant indicates a guilty conscience."cralaw
virtua1aw library
The conclusion reached by the Court of Appeals
was:jgc:chanrobles.com.ph
"Under the above facts and circumstances, appellant is clearly guilty of
estafa under Article 315, paragraph 2(a), of the Revised Penal Code, and
not under subsection 1(b) of the same Article of the Code, as correctly
contended by the Solicitor General. The defense of lawful partnership can
not be sustained. There can be no legal partnership where one of the
supposed partners, taking advantage of a friendship which seemed to have
ripened into a relationship of trust, represents himself to the other as one
engaged in a business transaction when in fact he is not. Appellant’s
request by telegram that complainant secured a license for the purchase of
products and his accomplishment of the application form for such license,
with the request that the license be procured and sent to him as soon as
possible, when such license is not required to enable one to purchase
forest products like rattan, was part of a scheme to deceive the
complainant. There is here, therefore, a perfect case of swindling by
means of false pretenses, where formal demand is not necessary (People
v. Scott, 62 Phil. 553). The cases cited by appellant’s counsel in support of
his contention that a legal partnership was created between appellant and
the complainant (People v. Clarin, 17, Phil. 84, People v. Magdaluyo, CA-
G.R. No. 9131-R, May 18, 1954, and People v. Reyes, CA-G. R. No. 8902-
R, March 19, 1953) are inapplicable because in these cases the appellants
therein actually invested or used the money received by them from their
partners in the venture.
"The penalty provided by the applicable law is arresto mayor in its
maximum period to prision correcional in its minimum period, or from 4
months and 1 day to 2 years and 4 months. There being no modifying
circumstance to consider, the medium degree of the penalty should be
imposed. Applying the Indeterminate Sentence Law, as amended,
appellant should be, as he is hereby, sentenced to suffer an indeterminate
penalty of from 4 months of arresto mayor to 1 year and 1 day of prision
correccional.
"Modified as above-indicated, the judgment appealed from is hereby
affirmed in all other respects, with costs."cralaw virtua1aw library
Defendant-appellant assails the foregoing decision upon the ground
that:chanrob1es virtual 1aw library
1. "The Court of Appeals committed a grave error of law in rendering a
decision which in effect holds that a person charged in the information with
estafa as defined in Article 315, paragraph 1(b) of the Revised Penal Code
may be convicted of estafa as defined in Article 815, paragraph 2(a) of the
same code.
2. "The Court of Appeals gravely erred when, under the facts established
or undisputed on the record, it did not acquit the petitioner herein."cralaw
virtua1aw library
It is alleged in the information in the case at bar:jgc:chanrobles.com.ph
"That on or about the 16th day of August, 1947, in the City of Manila,
Philippines, the said accused did then and there wilfully, unlawfully and
feloniously defraud one William Quasha in the following manner, to wit: the
said accused received from the said William Quasha the sum of P6,000.00
for the purpose of buying for the latter rattan and other forest products from
the provinces, under the express obligation of delivering the said articles, if
bought on or before August 31, 1947, or to return the said amount if unable
to buy also on or before August 31, 1947, but the said accused, once in
possession of the same and far from complying with his aforesaid
obligation, and in spite of repeated demands made upon him, absconded
with the said amount of P6,000 and never appeared again, thereby wilfully,
unlawfully and feloniously, with intent to defraud, misappropriating,
misapplying and converting the said sum to his own personal use and in
the said sum of P6,000, Philippine Currency."cralaw virtua1aw library
It is clear from the foregoing that petitioner is accused of estafa under
Article 315, paragraph 1(b) of the Revised Penal
Code:jgc:chanrobles.com.ph
tantamount to a demand. Besides, the law does not require a demand as a
condition precedent to the existence of the crime of embezzlement. It so
happens only that failure to account, upon demand for funds or property
held in trust, is circumstantial evidence of misappropriation. The same way,
however, be established by other proof, such as that introduced in the case
at bar.
The cases of People v. Evangelista (69 Phil., 583) and U.S. v. Bleibel (34
Phil., 227), relied upon by the petitioner, are not in point. The offense
charged in the Evangelista case was not malversation, but of estafa,
through false pretenses. The Bleibel case involved a commission agent
who received from his employer, some goods, worth P538.11, with the
obligation to return said goods, or the value thereof. Subsequently, the
employer or principal made a written demand for compliance with said
obligation, but the letter of demand did not appear to have reached the
knowledge of Bleibel. He having, accordingly, failed to answer it, the
principal filed against him a complaint for embezzlement. Soon thereafter,
but before the filing of the corresponding information, Bleibel delivered said
sum of P538.11 to his principal. It was held that mere delay in accounting
for said amount, without competent proof of misappropriation thereof, does
not constitute embezzlement. Besides, the principal owed Bleibel P143 for
salary, and the former had no right to hold the latter criminally liable for
said P538.11, "without first having made a settlement of accounts."cralaw
virtua1aw library
Apart from the fact that none of these circumstances obtains in the case at
bar, a demand was, as above stated, made in the Manila Hotel upon the
petitioner, and, worse still, the latter then impliedly, but, clearly, admitted
that he had spent complainant’s money for his (petitioner’s) own personal
benefit.

"(b) By misappropriating or converting to the prejudice of another, money, Wherefore, modified only in the sense that petitioner George L. Tubb is
goods, or any other personal property received by the offender in trust or guilty of embezzlement under Article 315, paragraph 1(b), of the Revised
on commission, or for administration, or under any other obligation Penal Code, the decision appealed from is hereby affirmed in all other
involving the duty to make delivery of or to return the same, even though respects, with costs against said petitioner. It is so ordered.
such obligation be totally or partially guaranteed by a bond; . . ."cralaw
virtua1aw library Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Reyes, J.B.L., Endencia, and Felix, JJ., concur.
In other words, petitioner is charged with the misappropriation of funds held
by him in trust and with the obligation to return the same. Upon the other
hand, the Court of Appeals convicted him of swindling by means of false
pretenses, under paragraph 2(a) of said Article 315, which punishes estafa
committed.

"2. By means of any of the following false pretenses or fraudulent acts

executed prior to or simultaneously with the commission of the
fraud:jgc:chanrobles.com.ph

"(a) By using fictitious name, or falsely pretending to possess power,

influence, qualifications, property, credit, agency, business or imaginary
transaction or by means of other similar deceits."cralaw virtua1aw library

This offense is, however, entirely different and distinct from that described
in paragraph 1(b) quoted above. Moreover, some of the essential elements
of the offense defined in said paragraph 2(a) are not alleged in the
information herein. For instance, there is no averment therein of any "false
pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud," which distinguishes said offense from that
referred to in paragraph 1(b), the main characteristic of which is
"unfaithfulness or abuse of confidence", and this is the essence of the
crime charged in said information. The allegations thereof are such as not
to permit petitioner’s conviction for estafa under said paragraph 2(a),
without violating his constitutional right to be informed of the nature and
cause of the accusation against him.

However, the findings of fact made in the decision of the Court of Appeals
clearly show that the sum of P6,000 belonging to Quasha had been
misappropriated by petitioner herein, for he disappeared soon after receipt
of said sum, in August, 1947, and when, in 1948, Quasha found him at the
Manila Hotel and inquired what he had done with his (Quasha’s) money,
petitioner merely said — in the words of the Court of Appeals — "that there
was no use telling what happened", but that he would try to pay it back.
Had said money been invested in rattan which later on was spoiled, as
appellant tried to prove, he would have said so, instead of making to
Quasha said statement, which like his conduct prior and subsequently
thereto, implies that he had misappropriated the funds entrusted to his
custody.

It is urged, that there can be no estafa without a previous demand, which

allegedly has not been made upon herein petitioner, but the
aforementioned query made to him by Quasha, in the Manila Hotel, was
 FIRST DIVISION
G.R. No. L-64731 October 26, 1983
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE PRESIDING JUDGE, REGIONAL TRIAL COURT, FIRST 'JUDICIAL
REGION, BRANCH XLV, URDANETA, PANGASINAN, and RODOLFO
VALDEZ, JR., respondents.
The Solicitor General for petitioner.
Alfonso C Bince Jr. for private respondent.
RELOVA, J.:
Private respondent Rodolfo Valdez, Jr. is charged in Criminal Case No. U-
3439 with murder before the Regional Trial Court of Pangasinan, First
Judicial Region, Branch XLV in Urdaneta. He is out on a P30,000.00 bail
bond which contains the following conditions —
The aforenamed, as bondsmen, hereby jointly and
severally undertake that the above-mentioned
defendant, as principal therein will appear and answer
the charge above-mentioned in whatever Court it may
be tried, and will at all times hold himself amenable to
the orders and processes of the Court, and if
convicted, will appear for judgment, and render himself
to the execution thereof; or that if he fails to perform
any of these conditions will pay to the Republic of the
Philippines the sum of Thirty Thousand Pesos
(P30,000.00) ... (Emphasis supplied)
After his arraignment, Rodolfo Valdez, Jr., thru his counsel, manifested
orally in open court that he was waiving his right to be present during the
trial. The prosecuting fiscal moved that respondent Rodolfo Valdez, Jr. be
compelled to appear and be present at the trial so that he could be
Identified by prosecution witnesses. Respondent judge in his Order, dated
April 15, 1983, sustained the position of private respondent who cited the
majority opinion in the case of Benigno S. Aquino, Jr. vs. Military
Commission No. 2, et al., 63 SCRA 546, and held that "he cannot be
validly compelled to appear and be present during the trial of this case."
Hence, this petition for certiorari with prayer, among others, (1) that
pending the resolution of this case on the merits, a writ of preliminary
injunction be issued to restrain respondent judge from enforcing his Order
dated April 15, 1983; (2) that said Order dated April 15, 1983 of respondent
judge be annulled and set aside and (3) that private respondent Rodolfo
Valdez, Jr. be compelled to appear during the trial of Criminal Case No. U-
3439 whenever required to do so by the trial court.
On August 10, 1983, We resolved "(a) to require the respondents to file an
ANSWER thereto, within ten (10) days from notice hereof, and not to move
to dismiss the petition; and (b) to ISSUE effective immediately and until
further orders from this Court, a TEMPORARY RESTRAINING ORDER
enjoining the respondent Judge from enforcing the Order dated April 15,
1983, allowing the accused, Rodolfo Valdez, Jr. to totally waive his
presence during the trial of Criminal Case No. U-3439, entitled "People of
the Philippines, Plaintiff, versus Rodolfo Valdez, Jr., alias Niño, et al.,
Accused," of the Regional Trial Court of Pangasinan, Branch XLV at
Urdaneta, Pangasinan." (p. 17, Rollo)
Private respondent filed his answer to the petition and, after deliberation,
We resolved to give due course to the petition and to decide the issue,
without requiring memorandum from the parties, as to whether or not
respondent Rodolfo Valdez, Jr.. despite its waiver of his right to be present,
can he compelled by the trial court to be present during the trial of Criminal
Case No. U-3439 so that he car, be Identified by the witnesses for the
prosecution
Article IV of the 1973 Constitution, Section 19 thereof provides —
SEC. 19. 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 may proceed notwithstanding the absence of the
accused provided that he has been duly notified and
his failure to appear is unjustified.
It is the submission of private respondent that the above constitutional
provision grants him absolute right to absent himself from the trial of the
case filed against him despite the condition of his bail bond that he "will at
all times hold himself amenable to the orders and processes of the Court."
In the case of People vs. Prieto, Sr., 84 SCRA 198, it was held that
"[r]espondent Judge unfortunately assumed that thereby a defendant was
thus conferred a fundamental right to ignore the terms of the bond posted
by him in accordance with his constitutional right to bail. The present
Constitution certainly has made a dent on the traditional and correct
concept of a bail as given to allow the release of a person in the custody of
the law on condition that he would appear before any court whenever so
required. Upon failure to do so, the warrant of arrest previously issued can
be a sufficient justification for his confinement further, in Aquino, Jr. vs.
Military Commission No. 2, et al., 63 SCRA 546, the late Chief Justice Fred
Ruiz Castro, in his concurring and dissenting opinion, clearly stated that
"the accused may waive his presence in the criminal proceedings except at
the stages where Identification of his person by the prosecution witnesses
is necessary. I might agree to the proposition of 'total' waiver in any case
where the accused agrees explicitly and unequivocally in writing signed by
him or personally manifests clearly and indubitably in open court and such
manifestation is recorded, that whenever a prosecution witness mentions a
name by which the accused is known, the witness is referring to him and to
no one else." Stated differently, the 1973 Constitution now unqualifiedly
permits trial in absentia even of capital offenses, provided that after
arraignment he may be compelled to appear for the purpose of
Identification by the witnesses of the prosecution, or provided he
unqualifiedly admits in open court after his arraignment that he is the
person named as the defendant in the case on trial. Reason for requiring
the presence of the accused, despite his waiver, is, if allowed to be absent
in all the stages of the proceedings without giving the People's witnesses
the opportunity to Identify him in court, he may in his defense say that he
was never Identified as the person charged in the information and,
therefore, is entitled to an acquittal.
Furthermore, it is possible that a witness may not know the name of the
culprit but can Identify him if he sees him again, in which case the latter's
presence in court is necessary.
ACCORDINGLY, the petition is granted and the assailed Order, dated April
15, 1983, of respondent judge is hereby ANNULLED and SET ASIDE, and
the restraining order enjoining said respondent judge from enforcing his
appealed order is made permanent.
SO ORDERED.
 SECOND DIVISION
G.R. No. L-45667 June 20, 1977
MANUEL BORJA, petitioner,
vs.
HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of
Cebu (Branch VI) and HON. ROMULO R. SENINING, Judge of the City
Court of Cebu (Branch I), respondents.
Hermis I. Mopntecillo for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F. Racela,
Jr. and Solicitor Carlos N. Ortega for respondents.
FERNANDO, J.:
The jurisdictional infirmity imputer to respondent Judge Romulo R.
Senining of the City of Cebu which was not remedied by respondent Judge
Rafael T. Mendoza of the Court of First Instance of Cebu in this certionrari
proceeding was the absence of an arrainment of petitioner Manuel Borja,
who was accused of slight physical injuries. This notwithstanding
respondent Judge Senining proceeded with the trial in abssentia and
thereafter, in a decision promulgated on August 18, 1976, found him guilty
of such offense and sentenced him to suffer imprisonment for a period of
twenty days of arresto menor. 1 Thereafter, an appeal was duly elevated to
the Court of First Instance of Cebu presided by respondent Judge
Mendoza. 2 It was then alleged that without any notice to petitioner and
without requiring him to submit his memorandum, a decision on the
appealed case was rendered on November 16, 1976 petitioner that the
failure to arraign him is violative of his constitutional right to procedural due
process, 3 more specifically of his right to be informed of the nature and
cause of the accusation against him and of his right to be heard by himself
and counsel. 4 Ther was thus, at the very least, a graveabuse of discretion.
The Solicitor General, 5 when asked to comment, agreed that the
procedural defect was of such gravity as to render void the decision of the
City Court affirmed by the Court of First Instance. The comment was
considered as answer, with the case being submitted for decision.
Respect for the constitutional rights of an accused as authoritatively
construed by this Court, duly taken note of in the comment of the Solicitor
General, thus calls for the grant of the writ of certiorari prayed for.
1. The plea of petitioner to nullify the proceedings had in the criminal case
against him finds support in the procedural due process mandate of the
Constitution. It requires that the accused be arraigned so that he may be
informed as to why he was indicted and what penal offense he has to face,
to be convicted only on a showing that his guilt is shown beyond
reasonable doubt with full opportunity to disprove the evidence against
him. Moreover, the sentence to be imposed in such a case is to be in
accordance with a valid law. 6 This Court, in People v. Castillo, 7speaking
through Justice De Joya and following the language of the American
Supreme Court, Identified due process with the accused having "been
heard in a court of competent jurisdiction, and proceeded against under the
orderly processes of law, and only punished after inquiry and investigation,
upon notice to him, with an opportunity to be heard, and a judgment
awarded with the authority of a constitutional law, ..." 8 An arraignment thus
becomes indispensable as the means "for bringing the accused into court
and notifying him of the cause he is required to meet ... " 9 Its importance
was stressed by Justice Moreland as early as 1916 in the leading case
of United States v. Binayoh. 10 He pointed out that upon the accused being
arraigned, "there is a duty laid by the Code [now the Rules of Court] upon
the court to inform [him] of certain rights and to extend to him, on his
demand, certain others. This duty is an affirmative one which the court, on
its own motion, must perform, unless waived." 11 To emphasize its
importance, he added: "No such duty, however, is laid on the court with
regard to the rights of the accused which he may be entitled to exercise
during the trial. Those are rights which he must assert himself and the
benefits of which he himself must demand. In other words, in the
arraignment the court must act of its own volition, ..." 12 In the terse and apt
language of the Solicitor General: "Arraignment is an indispensable
requirement in any criminal prosecution." 13 Procedural due process
demands no less.
his counsel by his side, he is thus in a position to enter his plea with full
knowledge of the consequences. He is not even required to do so
immediately. He may move to quash. What is thus evident is that an
arraignment assures that he be fully acquainted with the nature of the
crime imputed to him and the circumstances under which it is allegedly
committed. It is thus a vital aspect of the constitutional rights guaranteed
him. It is not useless formality, much less an Idle ceremony.
3. An equally fatal defect in the proceeding had before respondent Judge
Senining was that notwithstanding its being conducted in the absence of
petitioner, he was convicted. It was shown that after one postponement
due to his failure to appear, the case was reset for hearing. When that date
came, December 14, 1973, without petitioner being present, although his
bondsmen were notified, respondent Judge, as set forth in the comment of
the Solicitor General, "allowed the prosecution to present its evidence
invoking Letter of Instruction No. 40. Only one witness testified, the
offended party herself, and three documents were offered in evidence after
which the prosecution rested its case. Thereupon, respondent City Court
set the promulgation of the decision on December 28, 1973." 14 It could
then conclude: :Verily the records clearly show that petitioner was not
arraigned at all and was not represented by counsel throughout the whole
proceedings in the respondent City Court." 15 It is indisputable then that
there was a denial of petitioner's constitutional right to be heard by himself
and counsel. As categorically affirmed by Justice Ozaeta for this Court in
the leading case of Abriol v. Homeres: 16 "It is the constitutional right of the
accused to be heard in his defense before sentence is pronounced on
him." 17 He added further that such "constitutional right is
inviolate." 18 There is no doubt that it could be waived, but here there was
no such waiver, whether express or implied. It suffices to refer to another
leading case, People v. Holgado, 19 where the then Chief Justice Moran
emphatically took note of the importance of the right to 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 innocence." 20 With the violation of the constitutional right to
be heard by himself and counsel being thus manifest, it is easily
understandable why the Solicitor General agreed with petitioner that the
sentence imposed on him should be set aside for being null.
4. The provision in the present Constitution allowing trial to be held in
absentia is unavailing. It cannot justify the actuation of respondent Judge
Senining. Its language is clear and explicit. What is more, it is mandatory.
Thus: "However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustified." 21 As pointed out then by the Solicitor
General, the indispensable requisite for trial in absentia is that it should
come "after arraignment." The express mention in the present Constitution
of the need for such a step emphasizes its importance in the procedural
scheme to accord an accused due process. Without the accused having
been arraigned, it becomes academic to discuss the applicability of this
exception to the basic constitutional right that the accused should be heard
by himself and counsel.
5. Nor did the appeal to the Court of First Instance presided by respondent
Judge Mendoza possess any curative aspect. To quote anew from the
comment of the Solicitor General: "Respondent Court of First Instance ...
considered the appeal taken by the petitioner as waiver of the defects in
the proceedings in the respondent City Court. Precisely, the appeal itself is
tantamount to questioning those defects. In fact, the Memorandum in
support of the appeal unmistakably raised as error the absence of
petitioner at the arraignment and cited jurisprudence, commentaries and
the rules to bolster his position. Specifically, the absence of an arraignment
can be invoked at anytime in view of the requirements of due process to
ensure a fair and impartial trial." 22

2. Nor is it only the due process guarantee that calls for the accused being
WHEREFORE, the petition for certiorari is granted. The decision of
duly arraigned. As noted, it is at that stage where in the mode and manner
respondent Judge Romulo R. Senining dated December 28, 1973, finding
required by the Rules, an accused, for the first time, is granted the
the accused guilty of the crime of slight physical injuries, is nullified and set
opportunity to know the precise charge that confronts him. It is imperative
aside. Likewise, the decision of respondent Judge Rafael T. Mendoza
that he is thus made fully aware of Possible loss of freedom, even of his
dated November 16, 1976, affirming the aforesaid decision of Judge
life, depending on the nature of the crime imputed to him. At the very least
Senining, is nullified and set aside. The case is remanded to the City Court
then, he must be fully informed of why the prosecuting arm of the state is
of Cebu for the prosecution of the offense of slight physical injuries, with
mobilized against him. An arraignment serves that purpose. Thereafter he
due respect and observance of the provisions of the Rules of Court,
is no longer in the dark. It is true, the complaint or information may not be
starting with the arraignment of petitioner.
worded with sufficient clarity. He would be in a much worse position though
if he does not even have such an opportunity to plead to the charge. With
 FIRST DIVISION escape "rewarded" him by postponing all further proceedings against him
and in effect ultimately absolving him of the charge he was facing. Under
the present rule, his escape will, legally speaking, operate to Ms
G.R. No. L-66469 July 29, 1986
disadvantage by preventing him from attending his trial, which will continue
even in his absence and most likely result in his conviction.
PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners,
vs.
The right to be present at one's trial may now be waived except only at that
HON. BERNARDO SALAS (In his capacity as Presiding Judge of RTC,
stage where the prosecution intends to present witnesses who will Identify
Cebu, Branch VIII), MARIO ABONG, ALFREDO DE LEON, ERIWADWIN
the accused.9 Under Section 19, the defendant's escape will be considered
MONTEBON, ROMEO DE GUZMAN, & EDUARDO
a waiver of this right and the inability of the court to notify him of the
MABUHAY, respondents.
subsequent hearings will not prevent it from continuing with his trial. He will
be deemed to have received due notice. The same fact of his escape will
Basilio E. Duaban for accused. make his failure to appear unjustified because he has, by escaping, placed
himself beyond the pale, and protection, of the law.

CRUZ, J.:
Mario Abong was originally charged with homicide in the Court of First
Instance of Cebu but before he could be arraigned the case was
reinvestigated on motion of the prosecution.1 As a result of the
reinvestigation, an amended information was filed, with no bail
recommended, to which he pleaded not guilty.2 Trial commenced, but while
it was in progress, the prisoner, taking advantage of the first information for
homicide, succeeded in deceiving the city court of Cebu into granting him
bail and ordering his release; and so he escaped.3 The respondent judge,
learning later of the trickery, cancelled the illegal bail bond and ordered
Abong's re-arrest.4 But he was gone. Nonetheless, the prosecution moved
that the hearing continue in accordance with the constitutional provision
authorizing trial in absentia under certain circumstances.5 The respondent
judge denied the motion, however, and suspended all proceedings until the
return of the accused.6 The order of the trial court is now before us
on certiorari and mandamus.7
The judge erred. He did not see the woods for the trees. He mistakenly
allowed himself to be tethered by the literal reading of the rule when he
should have viewed it from the broader perspective of its intendment.
The rule is found in the last sentence of Article IV, Section 19, of the 1973
Constitution, reading in full as follows:
Trial in absentia was not allowed in Borja v. Mendoza 10 because it was
held notwithstanding that the accused had not been previously arraigned.
His subsequent conviction was properly set aside. But in the instant case,
since all the requisites are present, there is absolutely no reason why the
respondent judge should refuse to try the accused, who had already been
arraigned at the time he was released on the illegal bail bond. Abong
should be prepared to bear the consequences of his escape, including
forfeiture of the right to be notified of the subsequent proceedings and of
the right to adduce evidence on his behalf and refute the evidence of the
prosecution, not to mention a possible or even probable conviction.
We admonish against a too-literal reading of the law as this is apt to
constrict rather than fulfill its purpose and defeat the intention of its authors.
That intention is usually found not in "the letter that killeth but in the spirit
that vivifieth," which is not really that evanescent or elusive. As judges, we
must look beyond and not be bound by the language of the law, seeking to
discover, by our own lights, the reason and the rhyme for its enactment.
That we may properly apply it according to its ends, we need and must use
not only learning but also vision.
The trial judge is directed to investigate the lawyer who assisted Mario
Abong in securing bail from the city court of Cebu on the basis of the
withdrawn information for homicide and to report to us the result of his
investigation within sixty days.

WHEREFORE, the order of the trial court dated December 22, 1983,
Section 19. In all criminal prosecution, the accused denying the motion for the trial in absentia of the accused is set aside. The
shall be presumed innocent until the contrary is proved
respondent judge is directed to continue hearing the case against the
and shall enjoy the right to be heard by himself and respondent Mario Abong in absentia as long as he has not reappeared,
counsel, to he informed of the nature and cause of the until it is terminated. No costs.
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 SO ORDERED.
attendance of witnesses and the production of
evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and
his failure to appear is unjustified.

The purpose of this rule is to speed up the disposition of criminal cases,

trial of which could in the past be indefinitely deferred, and many times
completely abandoned, because of the defendant's escape. The old case
ofPeople v. Avanceña 8 required his presence at certain stages of the trial
which as a result, had to be discontinued as long as the defendant had not
re-appeared or remained at large. As his right to be present at these
stages was then held not waivable even by his escape, such escape thus
operated to the fugitive's advantage, and in mockery of the authorities,
insofar as the trial could not proceed as long as he had not been
recaptured.

The doctrine laid down in that case has been modified by Section 19,
which now allows trial in absentia, Now, the prisoner cannot by simply
escaping thwart his continued prosecution and possibly eventual conviction
provided only that: a) he has been arraigned; b) he has been duly notified
of the trial; and c) his failure to appear is unjustified.

The respondent judge was probably still thinking of the old doctrine when
he ruled that trial in absentia of the escapee could not be held because he
could not be duly notified under Section 19. He forgets that the fugitive is
now deemed to have waived such notice precisely because he has
escaped, and it is also this escape that makes his failure to appear at his
trial unjustified. Escape can never be a legal justification. In the past, his
 EN BANC
G.R. No. L-37933 April 15, 1988
FISCAL CELSO M. GIMENEZ and FEDERICO B.
MERCADO, petitioners,
vs.
HON. RAMON E. NAZARENO, Presiding Judge, Court of First Instance
of Cebu and TEODORO DE LA VEGA, JR., respondents.
The Solicitor General for petitioners.
Victor de la Serna for respondents.
GANCAYCO, J.:
Two basic issues are raised for Our resolution in this petition for certiorari
and mandamus. The first is whether or not a court loses jurisdiction over an
accused who after being arraigned, escapes from the custody of the law.
The other issue is whether or not under Section 19, Article IV of the 1973
Constitution, an accused who has been duly tried in absentia retains his
right to present evidence on his own behalf and to confront and cross-
examine witnesses who testified against him.
The following facts are not in dispute:
On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando
Cargando, Rogelio Baguio and the herein private respondent Teodoro de
la Vega Jr., were charged with the crime of murder.
On August 22, 1973 all the above-named. accused were arraigned and
each of them pleaded not guilty to the crime charged. Following the
arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the
hearing of the case for September 18, 1973 at 1:00 o'clock in the
afternoon. All the acused including private respondent, were duly informed
of this.
Before the scheduled date of the first hearing the private respondent
escaped from his detention center and on the said date, failed to appear in
court. This prompted the fiscals handling the case (the petitioners herein)
to file a motion with the lower court to proceed with the hearing of the case
against all the accused praying that private respondent de la Vega, Jr. be
tried in absentia invoking the application of Section 19, Article IV of the
1973 Constitution which provides:
SEC. 19. In all criminal prosecution, 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 the attendance of
witnesses and the production of evidence in his
behalf. However, after arraignment trial may proceed
notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear
is unjustified. (Emphasis supplied.) *
Pursuant to the above-written provision, the lower court proceeded with the
trial of the case but nevertheless gave the private respondent the
opportunity to take the witness stand the moment he shows up in court. 1
After due trial, or on November 6,1973, the lower court rendered a decision
dismissing the case against the five accused while holding in abeyance the
proceedings against the private respondent. The dispositive portion is as
follows:
WHEREFORE, insofar as the accused Samson Suan
Alex Potot, Rogelio Mula Fernando Cargando and
Rogelio Baguio are concerned, this case is hereby
dismissed. The City Warden of Lapu-Lapu City is
hereby ordered to release these accused if they are no
longer serving sentence of conviction involving other
crimes.
The proceedings in this case against the accused
Teodoro de la Vega, Jr. who has escaped on August
30,1973 shall remain pending, without prejudice on the
part of the said accused to cross-examine the
witnesses for the prosecution and to present his
defense whenever the court acquires back the
jurisdiction over his person. 2
On November 16,1973 the petitioners filed a Motion for Reconsideration
questioning the above-quoted dispositive portion on the ground that it will
render nugatory the constitutional provision on "trial in absentia" cited
earlier. However, this was denied by the lower court in an Order dated
November 22, 1973.
Hence, this petition.
The respondent court, in its Order denying the Motion for Reconsideration
filed by the herein petitioners, expressed the opinion that under Section 19,
Article IV of the 1973 Constitution, the private respondent, who was tried in
absentia, did not lose his right to cross-examine the witnesses for the
prosecution and present his evidence. 3 The reasoning of the said court is
that under the same provision, all accused should be presumed
innocent. 4Furthermore the lower court maintains that jurisdiction over
private respondent de la Vega, Jr. was lost when he escaped and that his
right to cross-examine and present evidence must not be denied him once
jurisdiction over his person is reacquired. 5
We disagree.
First of all, it is not disputed that the lower court acquired jurisdiction over
the person of the accused-private respondent when he appeared during
the arraignment on August 22,1973 and pleaded not guilty to the crime
charged. In cases criminal, jurisdiction over the person of the accused is
acquired either by his arrest for voluntary appearance in court. Such
voluntary appearance is accomplished by appearing for arraignment as
what accused-private respondent did in this case.
But the question is this — was that jurisdiction lost when the accused
escaped from the custody of the law and failed to appear during the trial?
We answer this question in the negative. As We have consistently ruled in
several earlier cases,6 jurisdiction once acquired is not lost upon the
instance of parties but continues until the case is terminated.
To capsulize the foregoing discussion, suffice it to say that where the
accused appears at the arraignment and pleads not guilty to the crime
charged, jurisdiction is acquired by the court over his person and this
continues until the termination of the case, notwithstanding his escape from
the custody of the law.
Going to the second part of Section 19, Article IV of the 1973 Constitution
aforecited a "trial in absentia"may be had when the following requisites are
present: (1) that there has been an arraignment; (2) that the accused has
been notified; and (3) that he fails to appear and his failure to do so is
unjustified.
In this case, all the above conditions were attendant calling for a trial
in absentia. As the facts show, the private respondent was arraigned on
August 22, 1973 and in the said arraignment he pleaded not guilty. He was
also informed of the scheduled hearings set on September 18 and 19,
1973 and this is evidenced by his signature on the notice issued by the
lower Court. 7 It was also proved by a certified copy of the Police
Blotter 8 that private respondent escaped from his detention center. No
explanation for his failure to appear in court in any of the scheduled
hearings was given. Even the trial court considered his absence unjustified.
The lower court in accordance with the aforestated provisions of the 1973
Constitution, correctly proceeded with the reception of the evidence of the
prosecution and the other accused in the absence of private respondent,
but it erred when it suspended the proceedings as to the private
respondent and rendered a decision as to the other accused only.
Upon the termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for the time
until the accused who who escape from custody finally decides to appear
in court to present his evidence and moss e the witnesses against him. To
allow the delay of proceedings for this purpose is to render ineffective the
constitutional provision on trial in absentia. As it has been aptly explained:
. . . The Constitutional Convention felt the need for
such a provision as there were quite a number of
 reported instances where the proceedings against a
defendant had to be stayed indefinitely because of his
non- appearance. What the Constitution guarantees
him is a fair trial, not continued enjoyment of his
freedom even if his guilt could be proved. With the
categorical statement in the fundamental law that his
absence cannot justify a delay provided that he has
been duly notified and his failure to appear is
unjustified, such an abuse could be remedied. That is
the way it should be, for both society and the offended
party have a legitimate interest in seeing to it that
crime should not go unpunished. 9

The contention of the respondent judge that the right of the accused to be
presumed innocent will be violated if a judgment is rendered as to him is
untenable. He is still presumed innocent. A judgment of conviction must
still be based upon the evidence presented in court. Such evidence must
prove him guilty beyond reasonable doubt. Also, there can be no violation
of due process since the accused was given the opportunity to be heard.

Nor can it be said that an escapee who has been tried in absentia retains
his rights to cross-examine and to present evidence on his behalf. By his
failure to appear during the trial of which he had notice, he virtually waived
these rights. This Court has consistently held that the right of the accused
to confrontation and cross-examination of witnesses is a personal right and
may be waived.10 In the same vein, his right to present evidence on his
behalf, a right given to him for his own benefit and protection, may be
waived by him.

Finally, at this point, We note that Our pronouncement in this case is

buttressed by the provisions of the 1985 Rules on Criminal Procedure,
particularly Section 1 (c) of Rule 115 which clearly reflects the intention of
the framers of our Constitution, to wit:

... The absence of the accused without any justifiable

cause at the trial on a particular date of which he had
notice shall be considered a waiver of his right to be
present during that trial. When an accused under
custody had been notified of the date of the trail and
escapes, he shall be deemed to have waived his right
to be present on said date and on all subsequent trial
dates until custody in regained....

Accordingly, it is Our considered opinion, and We so hold, that an escapee

who has been duly tried in absentiawaives his right to present evidence on
his own behalf and to confront and cross-examine witnesses who testified
against him.11

WHEREFORE, in view of the foregoing, the judgment of the trial court in

Criminal Case No. 112-L in so far as it suspends the proceedings against
the herein private respondent Teodoro de la Vega, Jr. is reversed and set
aside. The respondent judge is hereby directed to render judgment upon
the innocence or guilt of the herein private respondent Teodoro de la Vega,
Jr. in accordance with the evidence adduced and the applicable law.

No pronouncement as to costs.

SO ORDERED.
 THIRD DIVISION
G.R. Nos. 100225-26 May 11, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAUL SANTOS Y NARCISO, MARIO MORALES Y BACANI, PETER
DOE and RICHARD DOE, Accused, RAUL SANTOS y
NARCISO, accused-appellant.
The Solicitor General for plaintiff-appellee
Valmonte Law Offices for accused-appellant.
FELICIANO, J.:
Raul N. Santos appeals from a judgment of the trial court convicting him of
murder and frustrated murder.
On 26 October 1989, appellant Santos was charged with the crimes of
murder with the use of unlicensed firearms and frustrated murder, under
the following informations:
In Crim. Case No. 8517-MN: 1
That on or about the 26th day of May, 1989 in
Navotas, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused,
conspiring, confederating together and mutually
helping with one another, without any justifiable cause,
with deliberate intent to kill, treachery and evident
premediation, did then and there willfully, unlawfully
and feloniously shoot GLICERIO CUPCUPIN y
REYES with the use of unlicensed firearms of
unknown caliber, thereby inflicting upon the latter
serious physical injuries which caused his death at the
Tondo Medical Center, Manila.
Contrary to Law.
In Crim. Case No. 8518-MN: 2
That on or about the 26th of May, 1989 in Navotas,
Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring together and mutually helping with one
another, witout any justifiable cause, with deliberate
intent to kill, treachery and evident premeditation did,
then and there, willfully, unlawfully and feloniously
shoot ALBERTO BAUTISTA Y CAYETANO, with the
use use of firearms of unknown caliber, thereby
inflicting upon the latter serious physical injuries, thus
performing all the acts of execution which would have
produced the crime of MURDER as a consequence
but which nevertheless did not produce it by reason of
causes independent of the will of the herein accused,
that is due to the timely, able and efficient medical
attendance rendered to the victim at the Tondo
Medical Center, Manila.
Contrary to Law.
Three (3) other persons were charged in the same informations. Upon
request of the City Prosecutor who had conducted a re-investigation of the
cases, the trial court ordered the amendment of the information on 4 April
1990 so as to insert the name of one Mario Morales, in lieu of John Doe, as
a co-accused. Morales for whom a warrant of arrest was issued, is,
however, still at large, The identities of the two (2) other accused remain
unknown.
At arraignment, Raul Santos entered a plea of not guilty. A joint trial of the
two 92) criminal cases ensued, culminating in a judagment of conviction.
The dispositive portion of this judgment reads as follows:
WHEREFORE, premises considerd, judgment is
hereby rendered finding accused Raul Santos guilty
beyond reasonable doubt of the offenses charged
against him in these cases. He is accordingly
sentenced to two (2) prision terms as follows:
1) In Crim. Case No. 8517-MN for Murder, to life
imprisonment, the death penalty which should have
been imposed in this case having been abolished
under the present Constitution;
2) In Crim. Case No. 8518-MN for Frustrated Murder,
to a prison term ranging from SIX (6) YEARS
OFprision correccional, as minimum to TWELVE (12)
YEARS of prision mayor as maximum.
Accused Santos is also odered to proportionately pay
the heirs of Glicerio Cupcupin the sum of P30,000.00
for the loss of the latter's life and to pay said heirs,
proportionately aldo, P100,000.00 by way of
indemnification for the expenses incurred in
connection with Cupcupin's death.
Costs against accused in both cases.
SO ORDERED. 3
The relevant facts as found by the trial court are the following:
Glicierio Cupcupin and Alberto Bautista were riding on
a jeep driven by the former on May 26, 1989. At
around 11:45 o'clock in the morning of said date, the
jeep was at a stop at the corner of Estrella and Yangco
Streets in navotas, Metro Manila and was about to
make a right turn when two (2) persons armed with
short guns approached the jeep and fired at Cupcupin
and Bautista. Cupcupin was hit several itmes in
different parts of his body and he died as a result of
the multiple gunshot wounds he sustained (Exh. V).
Bautista sustained gunshot wounds, one at the left
thigh, one in theloer abdomen, one at the back of the
right foot and another at the back of the body. Bautista
was able to run away even as he was bieng fired
upon. He took cover in a store. The one firing the gun
at thim was a man he later identified to be accused
Raul Santos. The other one which he saw similary
firing his gun was aiming at Cupcupin. He identified
the man to be one Mario Morales. He added that he
saw Cupcupin hit by gunshots at the left side of the
body near the waist which made Cupcupin fall-off the
steering wheel. After running away, Bautista could not
remember anymore what else happened. He could not
rmember anymore what else happened. He at thim
and Cupcupin. After hearing a shout that the
ambushers were no longer around, he learned that a
woman bystander was hit and was boarded on a jeep
to be brought to the hospital. He was boarded on said
jeep too but later transferred to was brought to the
Martinez General Hospital and to the Mary Jonston
hospital where he was treated. Bautista was oeporated
on (Exhs. B, B-1, C, D and E). Upon the
apprehensionof accused where he picked out from a
line-up accused Raul Santos. In another line-up, he
also picked out accused Morales. Bautista also gave a
sworn statement narrating the shooting incident (Exh.
F).
Police Aide Victorino Bohol was on duty and directing
traffic at the corner of Plaza Rizal and Estrella Streets
when he heard gunshots. When he looked around the
saw two 92) persons who were holding Cal. 45 pistols
firing at persons on board a stainless steel owner jeep.
Bohol was not able to approach the men firing their
guns because he was not provided with a gun. What
he did was to run to headquarters to call for policemen
and when he returned to the scene of the shooting he
learned that one of hte passengers of the jeep was
killed. He learned also that the slain man was killed.
He learned also that the slain man was Glicerio
Cupcupin and that his companion was Alberto Bautista
alias "Tiwa". Bohol also added that tere were two (2)
other persons who were also firing at the passengers
of the jeep although he did not recognize these two (2)
 other persons. After the arrest of accused Santos,
Bohol was called to the police station and through a
one-way mirror he was able to identify accused Santos
as one of the persons who shot Cupcupin and
Bautista. Bohol also gave a sworn statement to the
police (Exh. A).
On cross-examination, Bohol admitted that at the time
of the shooting he was at the Jim Bread Store talking
to someone. When he heard gunshots thier guns at
the same time at the jeep. He added that the accused
was arrested some months later in connectiion with
another shooting incident wherein Santos was
suspected of involvement. He confirmed that Bautista
was bieng shot at while running away from the place.
Cpl. Sabino Patood of the Navotas Police delcared
that he was investigating a shooting incident which
resulted in the death of one Abudl Rosas wherein the
suspect was accused Santos when he was tipped by
police intelligence operatives that Santos was involved
in the ambush of Cupcupin. This made him conduct
further investigation by calling for Bautista and Bohol.
Patood also interviewed Santos who admitted his
participation inthe ambush to him. He did not take any
written statement from accused Santos because there
was nocounsel available at that time and because
Santos was not willing to give any written statement.
Dr. Maximo Reyes of the NBI Medico Legal Division
performed an autorpsy onthecadaver of victim
Cupcupin and found out that the latter sustained
nineteen (19) gunshot wounds in different parts of his
body. The cause of death gunshot wounds. Dr. Reyes
added that the assailants were probably at the left side
of the victim as they were shooting at the latter with
the victim possibly seated at the time he was shot and
hit.
The victim's wife Lucia Cupcupin declared that
P100,000.00 was spent in connection with the death of
her husband who was earning P5,000.00 a month as a
businessman dealing in junk materials and
marbale. 4
The trial court found that the accused Raul Santos had been identified
positively by the surviving vicitm of the shooting incident — Alberto
Bautista, and by teh Traffic Aide who had witnessed the execution of the
crime — Victorino Bohol. The defensse of alibi offered by the accused and
supported by the testimonies of a friend and a sister, was rejected as weak
and unavailing. As noted, a judgment of conviction followed.
Inhis appeal, Raul Santos assings the following as errors committed by the
trial court:
i the lower court erred in holding that accused's
identification by proscution's witnesses was "positive"
and, and, therefore it erred when it rejected accused's
defense of alib.
ii the lower court erred in considering one of the two
cases (not the instant ones) filed against the accused
in holding also for his guilt.
iii the lower court erred in convicting the accused.5
In respect of the first assigned error, appellant Santos contendes that the
testimonies of the principal prosecution witnesses do not coform with the
"knowledge and common experience of mankind." Appellant argues that
the two (2) prosecution witnesses, the victim Bautista and Police Aide
Bohol, testified that they saw the accused for the first time in their lives
when the crime was committed and yet identified him as one of the
gunmen five (5) months later in the Police headquarters in Navotas. The
ambuscade and the slaying of Glicierio Cupcupin happened on 26 May
1989; appellant Santos was identified at the police station on 25 October
1989. Appellant argues that this lapse of time was unreasonable, which,
when coupled with the brief, limited and obstructed view which the
prosecution witnesses had of the gunmen at the time of the shooting, casts
serious doubt on the accuracy and reliabitlity of the identification by the
witnesses.
Appellant's argument does not persuade.
Police Aide Bohol was only abot twelve (12) armlengths away from teh
ambush vehicle. The ambush slaying occurred under conditions of high
visibility: the victim Cupcupin was shot to death at 11:45 o'clock in the
morning, in good weahter, when the sun was almost at its zenith. On cross-
examination, Bohol stated that there were no passing vehicles that blocked
his view of the slaying of the victim as the vehicles stopped some distance
away from the jeep when the shooting began. In addition, Bohol testified
that he saw one of teh gunmen take a wrist watch and a gun form
Cupcupin's lifeless body. Clearly, Bohol had the opportunity to observe the
extraordinary and startling events which unfolded on the corner of two (2)
busy streets almost at high noon, events which may be expected to leave a
strong impression upon the minds of an eye-witnesses who, like Police
Aide Bohol, had a duty to maintain law and order. Alberto Bautista who had
been riding on a jeep and hwo escped death (but not gunshot wounds) by
reason of his quick reflexes, had every reason to remember the faces of
those whom he saw firing at the jeep and at himself. This has been
recognized a number of times in ouir case law. In People v. Jacolo, et
al., 6 the Couirt said:
[W]hile evidence as to the identity of the accused as
the person who committed the crime should be
carefully analyzed, . . . "were the conditions of visibility
are favorable and the witness does not appear to be
biased agains teh man on the dock, his or her
assertions as to the identity of the malefactore should
normally be accpeted. And this is more so where the
witness is the victim or his near-relative, as in this
case, because these (people) usually strive to
remember the faces of the assailants." (Emphasis
supplied.) 7
Appellant Santos also contended that Police Aide Bohol could not have
had a clear view of the ambuscade and the shooting of Cupcupin since he
(Bohol) was situated on the left side of the gunmen. As observed by teh
Solicitor General, however, the trial court had pointed out that "if he [Bohol]
was to the front right of the jeep" then he must [have been] a little by the
left side of the persons firing at the jeep . . ." 8 "Bohol's view, therefore," the
Solicitor General continued, "was not limited to the left side of the assilants,
especially since he was able to see them [the gunmen] move around the
site of the ambush after the [had] stopped firing, specifically when one of
them stripped victim Cupcupin of his gun and jewelry and they all walked
away from the place."9 The trial court obviously concluded that Bohol had
ample opportunity actually to observe tha events on which he testified, and
we find no basis for overtunring this conclusion of the trial court.
In respect of the identification by Bautista, accused also suggests that
Bautista had no real opoortunityto see and impress upon his memory the
faces of the assailants. In his testimony, Bautista stated that two (2) men
armed with handguns suddenly apporoached the jeep in which he and
Cupcupin were riding. He agreed that his attention had been "focused"
(defense counsel's own language) on vehicles passing along Estrella
Street as Cupcupin maneuvered the jeep to turn right at the corner and to
head towards Navotas. When the assailants started shooting, Bautista
jumped from the jeep, was hit on the left thigh and other parts of the body,
but managed to run for cover from repeated shots or bursts of gunfire.
Bautista testified further that he was shot by appellant Raul Santos while
Morales pumped bullets into Cupcupin; that the gunmen fired at Cupcupin
and Bautista from close range, Morales being a mere half an arm-length to
the left of Cupcupin while appellant Santos was about two (2) arm-lengths
away from the ambushed jeep; and that Bautista saw his compaion,
Cupcupin, slump on the steering wheel as the bullets crashed into him.
Once more, the trial court was led by the above circumstances to conclude
that Bautista had adequate oportunity to see appellant Santos and to retain
his face in his memory. We find no basis for rejecting this factual
conclusion of the trial court.
Appellant Santos makes two (2) additional arguments. Firstly, he
complains that he was not afforded his right to counsel int he course of the
police line-up, at the police station where he was identified by the
prosecution witnesses. This argument, of course, assumes that during the
police line-up, accused was under custodial investigation, a stage which,
per the appellant, began the instant the police suspected Santos then had
no lawyer present nor was one provided, his counsel argues, Santos's
identification was "tainted" and inadmissible. The argument is creative, but
has no legal bais. In Gamboa v. Cruz, 10 the Court said that there is "no
real need to afford a suspect the serivce of counsel at police line-up," 11 a
declaration reiterated in People v. Loveria. 12 The customary practice is, of
course, that it is the witness who is investigaged or interrogated in the
course of a police line-up and who gives a statement to the police, rather
than the accused who is not questioned at all at that stage. The Court is
aware of the caveat in Gamboa. 13 But there is nothing in the record of this
case which shows that in the course of the line-up, the police investigators
sought to extract any admission or confession from appellant Santos. The
investigators did not in fact interrogate appellant Santos during the line-up
and he remained silent after he had bee identified by Bautista and Bohol.
Appellant Santos's secon dcontention is that there had bee "improper
suggestiveness" in the course of the police line-up amounting to an
uncounselled confession. In effect, defense counsel claims that Bautista
and Bohol were induced by the plice investigators to point to appellant
Santos as one of the gunmen. The record does not show that the police
investigators had coached Bautista. Appellant Santos's counsel directed
the attention of this Court to a portion of Bohol's testimony during cross-
examination, to wit:
Atty. Valmonte:
Alright, that somebody who told you to go to the office
of Capt. Puzon you were informed that on the other
side of the office of Capt. Puzon there was already the
person whom they would like to identfy?
Victorino Bohol:
Yes, sir.
Atty. Valmonte:
And was there somebody who
asked you who among those in
the investigation room the person
whom you saw?
Victorino Bohol:
No, sir. Somebody approached
me and said, iyan po. But before
answering, I made a very careful
look at the person.14
We are not convinced, however, that the phrase "iyan po" constituted an
"improper suggestion," certainly not in the context of a situation where, as
here, appellant Santos was identified successively by Bautista and Bohol
from a group of person. We consider that the phrase "iyan po" is too
cryptic. What that Court warned against in People v. Acosta, 15 i.e., against
an identification process that was "pointedly suggestive, or generated
confidence when there was noen, activated visual imagination, and all told,
subverted [a person's] reliablity as [an] eye-witness [..]," has not been
successfully shown in the case at bar.
Appellant Santos next seeks to assail the credibility of Bautista and Bohol
by citing supposed inconsistencies between statements made in their
affidavits before trial and their testimony given in the course of the trial.
Appellant's counsel complains 16 that while witness Bohol could recall the
gunmen's general apperance, he could not remember the kind of shoes
that appellant Santos was wearing nor the color of their guns; that he had
stated in his swon statement that he had picked out appellant Santos from
a line-up consisting of seven (7) persons, while he testified in open court
that he had identified appellant when the later was together with only one
(1) detainee in the investigation froom of the police station; that Bohol had
intiallystated that Bautista was driving the jeep but on direct examination,
he stated that it was Cupcupin instead who had been driving the jeep; that
in his sworn statement, Bohol had claimed that he was directing traffic
when he first heard gunshots, but on cross-examination, stated that at the
point he was engaged in taking his merienda.
Close examination of the record will, however, show that the supposed
inconsistenceise adduced by appellant Santos are either non-existent or
clearly minor and inconsequential in character. The fact that witness Bohol
might not have remembered the kind of shoes appellant Santos was
wearing onthat violent occassion nor the color of the gunmen's weapons, is
clearly inconsequential. Close scrutiny of the sworn statement of Bohol
(Exhibit "A") does not reveal any statement that he (Bohol) had picked out
appellant Santos from a seven (7) - person line-up nor does the transcript
show that witness Bohol had identified appellant Santos when appellant
was alone with only one detainee in the investigation room at the police
station. 17 Appellant's counsel did not document his averments. Moreover,
as pointed out by the Solicitor General, 18 whether a police line-up
considted of two (2) or seven (7) persons is actually immaterial since a
police line-up is not essential to a proper and positive
identification. 19 Whether it was Bautista or Cupcupin who had been driving
the jeep and whether Bohol was direcitng traffic or enjoying his merienda
when the first gun shots rang out, cannot be regarded as critical in nature;
such questions do not detract from the basic facts that Bohol was in a
position and Bautista and saw both assailants and the victims. The
netrenched principle is that minro inconsistencies in the testimony of a
witness tend to strengthen rather than to weaken the credibility of the
witness as they erase any suspicion of rehearsed testimony. 20
In his second assignment of error, appellant Santos in effect questions the
trial court for admitting a sworn statement by one Ronaldo Guerrero
(Exhibit "EE"), a witnesses in another criminal case (Criminal Case No.
8117) where appellant Santos was also charged with the murder of one
Daniel Nuguera which had taken place in the very same site where
Bautista and Cupcupin were ambushed, i.e., at the corner of Yangco Street
and Estrella Street, Malabon, Metro Manila. When the prosecution first
presented the sworn statement of Guerrero in order to show criminal
propensity on the part of appellant Santos, the defesne objected to
admission of such sworn statment; the trial court sustained the objection
and rejected the evidence for the purpose it was initially offered. However,
the trial court admitted the same as falling within one or more of the
exceptions set out in Section 34, Rule 130 of the Rules of Court, which
reads:
Sec. 34. Similar Acts as Evifence. — Evidence that
one did or didnot do a certain thing at one time is not
admissible to prove that he did or did not do the same
or a similar thing at another time; but it may be
received to prove a specific intent or knowledge,
identity, plan, system, shceme, habit, custom or
usage and the like. (Empahsis supplied).
Appellant Santos now complains that the affidavit of Ronaldo Guerrero was
hearsay evidence, considering that the prosecution did not present
Ronaldo Guerrero as a witness during the trial. We consider that the trial
court did not commit reversible error in admitting the Guerrero affidavit for
the limited purpose for provign knowledge or plan or shceme, and more
specifically, that appellant knew that the particular corner of two (2)
particular streets in Manila was a good place to ambus a vehicle and its
passenters. Appellant also had waived the hearsay character of this
evidence by failure seasonably to ojbect to the admission of the affidavit; it
is too late in that day to raise the hearsay rule in the appellant's
memorandum after prosecution and defense had presented their
respective cases and had made their repsective offers of
evidence. 21 Finally, and in any cae, as pointed out by the Solicitor General,
the exclusion of the Guerrero affidavit would not result in any change in the
result reache by the trial court. For that result is esentially and adequately
based upon the positive identification of appellant Santos as one of the
gunmen by Baustisa and Bohol.
That it took the police authorities five (5) months to locate and apprehend
appellant Santos who, it turned out, resided close by the very locale of the
ambush-slaying, did not in any way weaken the evidence of the
prosecution of detract from the conclusions reached by the trial court. The
length of that period of time shows only that police procedures are not
always as efficient as they could be and that witnesses are frequently
reluctant to voluntee information to the police authorities in criminal cases,
a point noted so frequently as to have become a matter of judicial notice. 22
Finally, we come to the defense of alibi which appellant Santos raised
before the trial court and which was recounted by the trial court in the
following manner:
 Accused Raul Santos, after denying the accusations
against him, insisted that he was on the date and time
that Cupcupin and Bautista were ambushed somwhere
in Ibaan, Batangas to which place he went on May 20,
1989, because his sister Teresita received a subpoena
in a case involving one Apolonio Nuguera and which
subpoena was given to him by another sister named
Isabel. Accused Santos claimed that he was surprised
and confused by said subpoena (Exh. 2) and had to
got to Batangas while his sisters are verifying the
complaint against him. Accused Santos also
maintained that from the time he left the place on June
12, 1989, he remained continuously in said place.

xxx xxx xxx

The testimony of accused Santos regarding his stay in

Batangas was corroborated by Melinda David in show
house he stayed and by this sister Isabel Santos. 23

In respect of the weight properly given to a defense of a alibi, the Court

has, times beyond numbering, ruled that such defense is weak most
especially when established exclusively or mainly by the accused himself
and his relatives and nto by independent and credible persons, 24 and that
such a defense will not prevail over the positive idenfication made by
credible witnesses, 25 especially where the witness is the victim-
complainant himself.

WHEREFORE, for all the foregoing, we hold that the judgment of

conviction rendered by the trial court must be, and it is hereby, AFFIRMED
with the following modifications: the civil indemnity payable to the heirs of
Glicerio Cupcupin shall be INCREASED to P50,000.00; the penalty of life
imprisonment in Criminal Case No. 8517-MN shall be CHANGED
to reclusion perpetua, which is the proper imposable penalty under the
Revised Penal Code. Costs against apellant.

SO ORDERED.
 THIRD DIVISION
G.R. No. 97952 August 6, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALVIN LIQUEN y COROS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
FELICIANO, J.:
Alvin C. Liquen was prosecuted for violation of R.A. No. 6425, the
Dangerous Drugs Act of 1972. The criminal information alleged:
That on or about the 26th day of August, 1989, in the
City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, not being authorized by law, did then and
there wilfully, unlawfully and feloniously sell to Sgt.
Pedro S. Mamuad, a NARCOM agent, who posed as
buyer, two (2) match boxes containing dried marijuana
leaves, knowing the same to be a prohibited drug.
Contrary to law. 1
At arraignment, accused Liquen entered a plea of not guilty, and the case
proceeded to trial. In due course of time, the trial court rendered a decision
convicting the accused and sentencing him as follows:
WHEREFORE, the Court hereby finds the accused
ALVIN LIQUEN y COROS guilty beyondreasonable
doubt Of violation of Section 4 of Republic Act No.
6425, as amended, and pursuant to the said law
hereby sentences him to suffer an imprisonment
of RECLUSION PERPETUA and to pay thecosts. The
two match boxes of marijuana dried leaves subject of
this charge are ordered confiscated and forfeited in
favor of the Government. 2
In his brief, appellant Liquen made the following assignment of errors:
1 The court a quo gravely erred in admitting the peso
bills and marijuana adduced in evidence by the
prosecution.
2. The court a quo erred in finding that the guilt of the
accused-appellant for the crime charged has been
established beyond reasonable doubt. 3
The evidence of the prosecution tended to establish that on 24 August
1989, the 9th Narcotics Command ("NARCOM") Regional Unit in
Zamboanga City, received information from a civilian informer that
marijuana was being sold at Sangali, Zamboanga City. Sgt. Pedro S.
Mamuad, NARCOM, was dispatched the following day, together with the
civilian informer, to survey and observe the locality identified. The two (2)
proceeded to Sangali, Zamboanga City, and there they saw appellant
Liquen selling, at or near the vicinity of the JR Store, what they presumed
to be marijuana to a group of teenagers, each of the group giving him
payment therefor. Sgt. Mamuad did not arrest Alvin Liquen at that time
since he was then on a surveillance and observation mission.
On 26 August 1989, a team of NARCOM agents was formed to entrap
appellant Liquen. Sgt. Amos Foncardas, the team leader who was also the
arresting officer, designated Sgt. Mamuad to pose as buyer of marijuana.
He was handed two (2) P10.00 bills and four (4) P5.00 bills, or a total
amount of P40.00, which bills were previously marked, for use in
purchasing marijuana. The other two (2) team members were Sgt. Alarcon
and Sgt. Francia.
At 2:00 o'clock p.m. of 26 August 1989, the team took a privately-owned
jeepney bound for Sangali, Zamboanga City. When they were nearing the
vicinity of the JR Store, Sgt. Mamuad saw appellant at the store. Sgt.
Mamuad instructed the jeepney driver to park at a CAFGU check-point,
some 100 meters away from the JR Store. Sgt. Mamuad walked back
towards the JR Store, followed closely by the rest of his team. When Sgt.
Mamuad reached the store, he approached appellant Liquen and struck up
a conversation with appellant. Sgt. Mamuad indicated to appellant his (Sgt.
Mamuad's) intention to buy some "damo" (grass or marijuana) and gave
appellant Liquen the marked peso bills. Appellant Liquen gave Sgt.
Mamuad two (2) match boxes of marijuana, at the price of P20.00 per box.
Sgt. Mamuad opened the match boxes, inspected and smelled the
contents thereof, and satisfied that the boxes contained marijuana, gave
the pre-arranged signal which consisted of scratching the back of his head.
Forthwith, the rest of the team, Sgts. Foncardas, Alarcon and Francia went
inside the store, surrounded appellant Liquen and arrested him, after
introducing themselves as NARCOM agents. The team searched the body
of appellant and recovered from the front right pocket of his pants the
P40.00 in marked money received from Sgt. Mamuad. Appellant Liquen
was thereafter brought to the NARCOM Headquarters for investigation.
Sgt. Francia advised the team to place their initials on the top of each of
the two (2) match boxes. The two (2) boxes of marijuana were forwarded to
the Philippine Constabulary ("PC") Crime Laboratory for examination and
report. In Chemistry Record No. D-653-09 (Exhibit "A"), PC Chemist Mrs.
Athena Anderson stated that four (4) tests were conducted on the
specimen contents of the boxes and all four (4) tests showed that the
contents consisted of dried marijuana leaves.
In his first assignment of error, appellant Liquen claims that the peso bills
and marijuana confiscated from him should not have been admitted in
evidence against him since these were the fruits of an illegal arrest and
search conducted on him. Liquen insists that he was not lawfully arrested
by the NARCOM agents as he was not then committing any offense, but
was, according to him, merely taking a snack at the JR Store at the time he
was arrested.
Appellant's first defense is bereft of merit. It has been held many times by
this Court that entrapment, or the employment of ways and means of
entrapping and catching an offender in flagrante is no bar to prosecution
and conviction, not being prohibited by law. 4 In the case at bar, appellant
Liquen having been caught in flagrante as a result of the "buy-bust
operation," the police team was not only authorized but indeed obligated to
arrest appellant Liquen, even without a warrant of arrest. 5 Section 5 (a) of
Rule 113 of the Revised Rules on Criminal Procedure, reads in part as
follows:
Sec. 5. Arrest without warrant; when lawful. — A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting
to commit an offense; . . .
In respect of the claim that the body search conducted on appellant was
unlawful because it had not been supported by a valid search warrant, it
suffices to note that one of the recognized exceptions to the rule that
searches and seizures must be supported by a valid search warrant,
relates precisely to a search that is incidental to a lawful arrest. 6 Thus, the
seizure of the marked money and the marijuana from appellant Liquen
after his lawful arrest without warrant cannot successfully be assailed as
violative of the constitutional provision prohibiting unreasonable searches
and seizures.
The second principal defense of appellant Liquen was that he had been
"framed" by the police team. He denied having sold marijuana to Sgt.
Mamuad. The story that he gave during the trial was that on the date and
at the time mentioned in the information, he happened to be taking a snack
at the JR Store when NARCOM agents who were then unknown to him
arrived. One of the agents allegedly poked a knife at his throat and
dragged him towards a parked vehicle. He was forcibly placed inside the
vehicle and brought to a place unfamiliar to him for investigation. The
defense presented two (2) witnesses to support this story.
The defense of "frame-up," like alibi, is a weak defense that is easy to
fabricate but difficult to prove. 7 Frame-up" as a defense is probably more
difficult to prove than alibi, because of the presumption that public officers
like NARCOM agents had performed their official duty in a regular
manner. 8 In the case at bar, there is more than sufficient evidence to
show that appellant had indeed been caught in flagrante by the NARCOM
agents in the course of their "buy-bust operation." Appellant had physically
delivered to Sgt. Mamuad the two (2) match boxes of marijuana leaves,
pursuant to their agreement of purchase and sale. The agreement and the
prompt delivery of the marijuana made by appellant, constituted the sale supposedly conducted surveillance and acted as
that is punished by the law. 9 poseur-buyer during the buy-bust operation. 14

Appellant denigrates the prosecution's evidence as incredible, and
describes the prosecution's "improbable account of an alleged pusher
plying his trade . . . at a public place, in full view of inquisitive on-lookers
and for a pittance of P40.00 . . .," as unworthy of belief and credence. 10
Drug pushers are not normally very discriminating and selective in the
choice of the place where they peddle their illicit merchandise and that
place frequently includes a public place. 11 Indeed, the public character of a
place does not necessarily insure its avoidance as a venue for prohibited
sales by drug pushers; the public nature of the place chosen or adopted
may in fact serve to conceal and disguise the nature of the transactions
engaged in by drug peddlers.
In People v. Paco (supra), the Court rejected much the same defense here
put up by appellant Liquen, and said:
Drug-pushing when done on a small level as in this
case belongs to that class of crimes that may be
committed at anytime and at any place. After the offer
to buy is accepted and the exchange is made, the
illegal transaction is completed in a few minutes. The
fact that the parties are in a public place and in the
presence of other people may not always discourage
them from pursuing their illegal trade as these factors
may even serve to camouflage the same. Hence, the
Court has sustained the conviction of drug pushers
caught selling illegal drugs in a billiard hall (People v.
Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA
329; People v. Sarmiento, G.R. No. 72141, January
12, 1987, 147 SCRA 252), in front of a store (People v.
Khan, supra) along a street at 1:45 p.m. (People v.
Toledo, G.R. No. 67609, November 22, 1985, 140
SCRA 259), and in front of a house (People v.
Policarpio, G.R No. 69844, February 23, 1988.) 12
Experience shows that whether the poseur-buyer and the agents knew
each other, is not material. What matters on a review of the judgment of
conviction is not the level of pre-existing familiarity between the buyer and
the seller of prohibited drugs, but positive proof of the agreement and the
delivery which consummates the sale of a prohibited article. 13
Finally, appellant argues that because of certain contradictions and
inconsistencies in the testimonies of the prosecution witnesses, his guilt
had not been proved reasonable doubt. The supposed inconsistencies
were the following:
The Court, however, considers that alleged discrepancies relating to (a)
whether the purchase of the prohibited drug took place inside or outside
the JR Store in Sangali, Zamboanga City; (b) the precise physical
appearance and height of the police informer; and (c) whether the buyer
knew how much marijuana the amount of P40.00 could buy, all deal with
minor details and do not adversely impact upon the credibility of the
prosecution's witnesses nor upon the trustworthiness of the testimony
offered by them. 15
Finally, the Court notes that the trial court found the testimony of the police
officers before the trial court to have been straightforward and credible.
Appellant did not even try to show that he was known to the police officers
involved prior to his arrest. There was in addition no proof of any evil
motive on the part of the policemen that might have led them to extort
money and falsely to attribute to appellant a serious criminal offense. Thus,
appellant was simply unable to overcome the presumption that the
members of the police team which arrested him had acted in the regular
performance of their public duty. 16
It has not escaped the attention of the Court that the trial court imposed
upon appellant only the penalty of reclusion perpetua, (which should be life
imprisonment). The trial court, in other words, failed to apply completely the
penalty prescribed in Section 4 of R.A. No. 6425, as amended, which reads
as follows:
Sec. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. — The penalty of
life imprisonment to death and a fine ranging from
twenty thousand to thirty thousand pesosshall be
imposed upon any person who, unless authorized by
law, shall sell, administer, deliver. give away to
another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such
transactions. If the victim of the offense is a minor, or
should a prohibited drug involved in any offense under
this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided
shall be imposed. (Emphasis supplied)
Under the above quoted provision, both life imprisonment and a fine
ranging from P20,000.00 to P30,000.00 must be imposed in case of
conviction. Since appeal by an accused who has been convicted in a
criminal case throws open the whole case for review, including modification
and increase of the imposable penalty, 17 the Court must now impose upon
appellant a fine of P20,000.00 in addition to the penalty of life
imprisonment.

Prosecution witness Sgt. Mamuad declared that

WHEREFORE, the decision of the trial court dated 31 January 1990 is
accused appellant was sitting inside JR Store when
hereby AFFIRMED with the following MODIFICATIONS: the penalty
the former approached the latter and transacted the
properly imposable is not reclusion perpetua which is different juridically
alleged sale of marijuana. (TSN, p. 16, October 17,
from the correct penalty of life imprisonment. The imposable penalty must
1989) On the other hand, Sgt. Foncardas testified that
include a fine of P20,000.00. Accordingly, the penalty of life imprisonment
he saw Sgt. Mamuad gave the money to
is hereby IMPOSED, plus a fine of P20,000.00. Costs against appellant.
Liquen outside the store. (TSN, p. 20, October 19,
1989)
SO ORDERED.
It seems quite odd that the arresting team could not
even agree as to the physical appearance and name
of their alleged informer. While Sgt. Mamuad testified
that the civilian informer, alias Mario, stands at 5'6"
with short-trimmed hair (TSN, p. 21, October 17,
1989), Sgt. Foncardas described Mario as 5'3" in
height and short-haired (TSN, p. 12, October 19,
1989), and latter declared that the name of the
informer is Jeffrey. (TSN, p. 16, October 18, 1989) Sgt.
Alarcon for his part described Mario as 5'4" in height
and long-haired. (TSN, p. 21, 1989).

According to Sgt. Foncardas, he instructed Sgt.

Mamuad to buy two (2) match boxes of marijuana with
the P40.00 he gave to the latter (TSN, p. 18, October
19, 1989), however, Sgt. Mamuad stated that he did
not know how much marijuana the amount of P40.00
can buy (TSN, p. 25, October 17, 1989) when be

EN BANC
G.R. No. L-36445 August 28, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NARCISO PIZARRO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Julie David Feliciano for defendant-appellant.
RELOVA, J.:
Automatic review of the decision of the then Court of First Instance of
Cagayan, in Criminal Case No. 124-S (71), sentencing herein appellant to
double death, to pay the heirs of the victims the sum of P24,000.00 as
indemnity, P50,000.00 as moral damages and to pay the costs.
In the evening of June 6, 1971, spouses Teodoro Taban and Maria
Pescador were killed inside their home at Kinalian, Allacapan, Cagayan.
They sustained gunshot and stab wounds. The gunshot wounds were
caused by a gun with bullets containing many pellets; on the other hand,
the stab wounds were caused by a sharp pointed instrument. This was the
post-mortem finding of Dr. Alfredo Berbano, the Municipal Health Officer of
Allacapan, who testified that the cause of death of spouses Teodoro Taban
and Maria Pescador was:
Shock, Irreversible, Secondary to hemorrhage, Acute,
Internal and External, Secondary to Gunshot wound
and stab wound, hypogastric and flank. (Exhibits "A" &
"B", pp. 10 & 12, Record)
The finger of suspicion pointed to accused-appellant Narciso Pizarro, son-
in-law of the victims, because among the relatives of the deceased, he was
the only one who objected to the wish of the victims' family that they be
buried face downward. This desire was due to the folks' belief that the
ghost of the victims would not make the killer sleep if they were to be
interred face downward.
Later, Leonila Taban, a sister-in-law of appellant, told PC Sgt. Francisco
Vinagrera that the firearm of her deceased husband had been taken by the
appellant. This firearm was a bulldog, gauge 16, which fires multiple pellet
bullet, and this was exactly the type of gun used by the murderer. Likewise,
Filomeno de los Santos testified that in the evening of June 6, 1971 he was
in the house of one Librada Contapay situated near the road at Kinalian,
Allacapan, Cagayan, when he heard the barking of dogs. He peeped
through the window and saw the accused with a companion going to the
direction of the house of the Tabans. He even asked his nephew, Felipe
Jose, who was also awakened by the barking of the dogs and was then
urinating at their batalan, whether it was really the accused who was
proceeding to the Taban's residence. Felipe Jose confirmed the Identity of
appellant and even informed him that accused Pizarro had a property
dispute with Teodoro Taban and even threatened to kill the latter. The two,
Filomeno de los Santos and Felipe Jose, went down and followed
appellant and his companion. They observed their movements, hiding
behind banana plants from a distance of about fifty (50) meters. Suddenly,
they heard gunshot followed by another, coming from the house of the
victims. They went nearer the Tabans' residence and saw two persons
going out of the batalan, one carrying a gun and the other a knife. Pizarro
was one of the two.
After Sgt. Vinagrera learned from Filomeno de los Santos what had
happened, he confronted the accused who denied his presence at the
place at that time, giving several excuses and alibis. Later, however, he
broke down and confessed in detail the double murder he had committed.
His statement was reduced in writing (Exhibits "C", "C-1" and "C-2") after
which he was brought to Municipal Judge Alejandro Pagayatan of
Allacapan, Cagayan. The judge read to appellant the contents of said
Exhibits "C", "C-1" and "C-2" and then asked if he understood everything
stated therein. Answering in the affirmative, appellant then signed the
statement and the oath was administered to him Judge Pagayatan then
signed the statement as the administering officer. A little later, Pizarro also
admitted having taken the gun of the deceased husband of Leonila Taban
and said it was the same gun he used in shooting the victims. He even
pointed to the place where he buried it after the incident.
The gun (Exhibit "G") was recovered by the police at the place pointed to
by appellant. Thereafter, appellant was brought again before Judge
Pagayatan regarding another statement (Exhibits "E" and "E-1") relative to
the recovery of the death gun. The contents of this statement (Exhibit "E"
and "E-1") were again read to the accused who swore to its truthfulness.
He then signed it.
Narciso Pizarro was charged with the crime of double murder.
In his defense, appellant Pizarro claims that he was in town in the morning
of June 6, 1971. He returned home about seven o'clock in the evening.
After supper, he went to bed between 8:00 and 9:00. He never left the
house that evening. The following day, Santiago Bartolome informed him
about the death of his parents-in-law, Teodoro Taban and Maria Pescador.
Immediately thereafter, he and his wife, Josefina, repaired to Kinalian and
made inquiries regarding the killers of the victims. Zosimo Taban, a 9-year
old nephew, told him that he did not recognize the killer and could only
describe him as a "bearded man, taller than himself (accused).
After several days, he was picked up by the police, informing him that he
was being suspected as the killer of his parents in-law. He professed
innocence and completely denied the accusation. However, due to the
maltreatment received from the police, he finally gave way and decided to
execute the statements, Exhibits "C", "C-l " and "C-2" and Exhibits "E" and
"E-1".
Josefina Taban, daughter of the deceased Teodoro Taban and step-
daughter of the late Maria Pescador, testified that she and her husband,
Narciso Pizarro, on June 6, 1971 were residing at Maluyo, Allacapan,
Cagayan; whereas, her parents were living at Sitio Kinalian which is about
15 kilometers away. Narciso left the house at about 10:00 in the morning of
June 6, 1971 and returned at about 2:00 in the afternoon. From then on,
Narciso stayed at home and went to bed at about eight o'clock. The
following day, somebody informed them at their residence at Maluyo that
her father and step mother were killed. They rushed to the place and made
injuries as to who could be the assailant and a nephew, Zosimo Taban,
described the killer as a "bearded man, taller than her husband."
The Court is inclined to give full faith and credit to the testimonies of
Filomeno de los Santos and Felipe Jose. De los Santos, a relative of the
appellant, clearly testified regarding the Identity of appellant, as follows:
Q While you were by the window of the house of Librada
Contapay and you saw Narciso Pizarro, what did you do next if
any?
A I observed his movements, sir, I even followed him because I
know that he should be in Maluyo. I supposed that he would be
in Maluyo, because he was getting a carabao for which to pull
something else, but I was surprised why he was there.
Q You said that we went to follow Narciso Pizarro was he alone
when you followed him?
A He had a companion, sir.
Q To what direction did they proceed when you followed Narciso
Pizarro and his companion ?
A They proceeded to the direction of the house of Teodoro
Taban, sir.
Q What did you do next after following Narciso Pizarro and his
companion ?
A I saw Felipe Jose and I asked him if that is Narsing (Narciso
Pizarro) and he told me that it was Narciso Pizarro.
Q Where was Felipe Jose when you inquired from him if that was
Narciso Pizarro?
A He was in their batalan urinating, sir.
xxx xxx xxx
Q Why did you ask Felipe Jose as to the Identity of the person
who passed by you?
A I only said, "Is that Narsing?"
Q What was your purpose in asking that question from Felipe
Jose ?
A I had a suspicion because I know that Narciso Pizarro is not
supposed to be around and he should be in Maluyo, so I asked
Felipe Jose if that is Narsing, and he answered, "Yes, Uncle."
Q When Felipe Jose told you already that it was Narciso Pizarro
who pass by also by their house, what did you and Felipe do
next if any?
A Felipe Jose informed me because of the statement of Felipe
Jose which he heard from Narciso Pizarro that because of the
misunderstanding with his father-in-law, and if things go wrong
he will be going to kill we tried to follow them for the purpose of
observing what is going to happen.
Q You said a while ago that Narciso Pizarro and his companion
proceeded to the house of Teodoro Taban, what did you and
Felipe Jose do when you went to observe their movements?
A We hide at the banana plants.
Q How far is that place to the house of Teodoro Taban?
A About 50 meters, sir.
Q What happened next while you were hiding yourself and
Felipe Jose among the banana grooves when you saw Narciso
Pizarro and his companion proceeded to the house of Teodoro
Taban?
A We heard a gun report, sir, and not long after, we heard again
another gun report, so we went nearer the house of Teodoro
Taban?
Q Where did the two gun reports emanated?
A Inside the house, sir.
Q In whose house•
A The house of Teodoro Taban, sir.
Q After hearing the two gun reports, what else happened if any?
A The light went out and we saw two persons going out of the
batalan, one carrying a gun and the other one, immuko sir.
Q Were you able to recognize those persons who went down
from the batalan?
A I saw two persons but I only recognized Narciso Pizarro, sir,
but when they went down, another person emerged from under
the batalan making the group, three. (pp. 95, 96, 97 & 99, tsn.,
Nov. 15, 1972 hearing)
Likewise, Felipe Jose, pointed to appellant as one of those who
passed by their house going to the direction of the residence of
the victims. Thus:
Q In the night of June 6, 1971, in what particular place in Sitio
Kinalian were you?
A I was in our house, sir.
Q Do you remember anything unusual that happened during that
night
A Yes, sir I remember.
Q What was that incident about, will you please tell to this
Honorable Court?
A That night, I heard the barking of dogs, As I went out to
urinate, I saw Narciso Pizarro and a companion.
Q You said one of the persons you saw was Narciso Pizarro, is
that one Narciso Pizarro the person you have just pointed a
while ago, the accused in this case?
A Yes, sir.
Q How far were you from them, when you saw Narciso Pizarro
and his companion passing by
A About five meters, sir.
Q What was the condition of the night when this Narciso Pizarro
and his companion passed by your house?
A That time it was showering but there was the moon.
Q It was bright ?
A Yes, sir.
Q After the accused and his companion passed by your house,
what happened next?
A Filomeno de los Santos came to me and inquired if these
persons who passed by Narciso Pizarro is one of them, and I
answered him, yes.
Q After telling Filomeno de los Santos that the person who
passed by your house and one of them is the accused in this
case, what else happened?
A I know that this Narciso Pizarro should be in barrio Maluyo and
I am surprises why he is here now, so I told him (Filomeno) that
we follow them.
Q After that, what did you do next?
A He said, let us go and follow him because according to this
Narciso Pizarro, it was only a week before, they told me that his
in-laws are liars and that he was going to kill them.
Q Where did you talk with Narciso Pizarro a week before when
he told you that his father-in-law is a liar and he is going to kill
him?
A In our house, sir.
Q When you and this Filomeno de los Santos followed Narciso
Pizarro and his companion to what direction did the accused and
his companion go?
A They proceeded towards the east, sir.
Q Do you know in what place did they go when they proceeded
east?
A I know, sir.
Q Where?
A They went to the house of Teodoro Taban because we
followed them, sir.
Q Up to what place did you follow the accused and his
companion when they proceeded to the house of Teodoro
Taban?
A When we were nearing the house of Teodoro Taban, about 50
meters away, we heard two gun reports.
Q Where were these Narciso Pizarro and his companion when
you heard the two gun reports?
A They were already inside the house of Teodoro Taban, sir."
(pp. 119-121, tsn., Nov. 19,1972)
The defense of alibi cannot prevail over the positive Identification of
appellant. No jurisprudence in criminal cases is more settled than the rule
that alibi is the weakest of all defenses and that the same should be
rejected when the Identity of the accused has been sufficiently and
positively established by eye-witnesses to the crime. Alibi is easy to
concoct, and difficult to disprove. For alibi to prosper, it is not enough to
prove that defendant 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. (People vs. Estrada, 22 SCRA
111). Otherwise stated, alibi is a defense with a bad reputation.
Regarding the statements, Exhibits "C", "C-1 ", and "C- 2" pp and Exhibits
"E" and "E-1", wherein appellant confessed to have committed the crime
charged against him, the rule is clear that when such declaration expressly
admits guilt the same may be given in evidence against him (Section 29,
Rule 130, Revised Rules of Court). Early decisions of the Court state that if
such statements are made freely and voluntarily, the confession constitutes
an evidence of a high order, since it is supported by the strong
presumption that no person of normal mind will deliberately and knowingly
confess himself to be the perpetrator of a crane unless prompted by truth
and conscience. (U.S.A. vs. de los Santos, 24 Phil. 329). Hereunder are
the pertinent facts narrated by appellant in his statements, Exhibits "C ",
and "C-1 "-
7. Q Will you please narrate to me in brief how the incident
happened?
A In the morning of June 6, 1971, Orencio Ramos and I met in
the public market at Centro, Allacapan, Cagayan wherein said
Orencio told me that he wants to kill Teodoro Taban. I also
agreed and made the plan to kill Teodoro Taban on the night of
June 6, 1971. After that, we went to sitio Kinalian, Burot,
Allacapan, Cagayan and again both of us made the final plan to
liquidate the old man. In the afternoon of that day, I left for
Maluyo in order to deceive the people and on the evening I left
barrio Maluyo to execute our plan. Orencio met me in a certain
place and proceeded to the house of Teodoro Taban passing the
house of BRIGIDA CONTAPAY and DONATO DE LOS
SANTOS at sitio Kinalian, Burot, Allacapan, Cagayan Upon
nearing the house of Teodoro Taban, Alfredo Ramos appeared
and joined us. Upon reaching the house of Teodoro Taban, we
peeped inside the house and found the occupants sleeping. I
then shouted d "TATA TATA" and after that Teodoro raised up
his body and at that juncture, Orencio fired his gun at the old
man. After that the old man laid down and then Orencio and I
went up inside the house. When we were up, the old man was
still hovering between life and death, so I stabbed him once
below the left armpit. At that time, the wife of Teodoro Taban
Identified Orencio and remarked, "WHY DO YOU KILL US
BROTHER-IN-LAW" and at that instant Orencio fired his gun at
the old woman. After that, Orencio said, "Let's go" and because
the old woman was still alive and having recognized me, I again
stabbed her twice below the left armpit and at the body. After
that, Orencio told me to get the titles of the land owned by the
old man so we forcibly opened the locker with their bolo.
Because we could not locate the documents, we closed the
locker and we went down from the house. After that Orencio,
Alfredo and I left proceeding westward and upon crossing a
creek, we separated and I went home to Maluyo.
8. Q What participation did Alfredo do in the commission of the
crime?
A He was assigned to guard around the house when Orencio
and I went up inside the house, sir.
9. Q Was Alfredo present when the plan to liquidate Teodoro
Taban was made?
A None, but they might have made the arrangement with his
brother Orencio, sir.
10. Q What were your individual arms or weapons?
A Orencio was armed with a homemade gun (Bulldog), Alfredo
was armed with a bolo and I was also armed with a pointed knife
(Imuco).
11. Q You stated in your narration that when you shouted "Tata,
Tata", the old man raised his body and that was the time when
Orencio fired at him. Where was Orencio then at the time he
fired gun at the old man?
 A Orencio was still on the ground as the house is very low and SO ORDERED.
some portion of the walling of the house is open.
12. Q What prompted you to kill the old man when in fact,
Teodoro is your father-in-law ?
A Because of the hardship of life I and my family are sacrificing
and my father-in-law seems to ignore the will of his daughter by
giving what is due to them in connection with the land since all
his daughters are already married. Because of that attitude, that
prompted me to commit the crime. (pp. 4-5, Record)

The above statements contained informations that could not have been
known to the police. His claim therefore that he was maltreated into
executing the same cannot be believed. Further, the finding by the police
officers of the gun used in the commission of the crime in the place pointed
to by said appellant is a strong proof of his participation in the commission
of the crime. Hereunder is his statement, Exhibit "E " and "E-1", pertinent to
the death gun:

6. Q Presenting to you these

homemade gun (Bulldog), gauge
.16, serviceable. What relation
has this to that of the firearm
which you buried and recovered at
barrio Maluyo if there is any?

A That is the very gun which I

buried and recovered by us at
Maluyo, sir.

7. Q Is this the firearm used in

killing the late Teodoro Taban and
his wife, Maria Pescador at sitio
Kinalian, Burot, Allacapan on the
night of June 6, 1971?

A Yes, sir. (p. 2 1, Record)

Thus, assuming that his extra-judicial confessions were involuntary, they

are admissible.

... even assuming the involuntary character of said

confessions, the finding of the bones and hair above
referred to confirms the admissions of guilt and
renders the confessions admissible in evidence. In the
case of Bery vs. U.S., 2 Col. 186, it was held that 'if
the involuntary confessions are confirmed on material
points by facts subsequently discovered in its
consequence, the whole confession should be
received and admitted as evidence. * * * The finding of
the goods at the place indicated not only tends to
corroborate the declaration of the prisoner that the will
be found there but also his declaration that he stole
them and concealed them at that place, if he made this
statement. (People vs. Garcia, et all 99 PhiL 381, 386).

The above statements, Exhibits "C", "C-1 ", "C-2", "E " and "E-1", were
given in July 1971, or before the 1973 Constitution took effect. While it is
true that they were given without the aid of counsel, this Court has ruled in
Magtoto vs. Manguera, 63 SCRA 4,12 and in People vs. Juliano, 95 SCRA
511 that "[t]his specific portion of this constitutional mandate has and
should be given a prospective and not a retrospective effect.
Consequently, a confession obtained from a person under investigation for
the commission of an offense, who has not been informed of his right (to
silence and) to counsel, is inadmissible in evidence if the same had been
obtained after the effectivity of the New Constitution on January 17, 1973.
Conversely, such confession is admissible in evidence against the
accused, if the same had been obtained before the effectivity of the New
Constitution, even if presented after January 17, 1973, and even if he had
not been informed of his right to counsel, since no law gave the accused
the right to be so informed before that date. "

WHEREFORE, the appealed decision is AFFIRMED. However, for lack of

the necessary votes, the penalty is reduced to double reclusion
perpetua and the indemnification to the heirs of Teodoro Taban and Maria
Pescador is increased to P30,000.00 for each.
 EN BANC
G.R. No. L-69971 July 3, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ERNESTO LUVENDINO y COTAS, accused/appellant.
FELICIANO, J.:
On the morning of 17 January 1983, 18-year old Rowena Capcap left her
home at Deva Village, Tambak, Taguig, Metro Manila to attend classes at
the University of Manila where she was a sophomore commerce student.
She would usually be home by 7:30 to 8:00 on school evenings, 1 but on
that tragic day, she would not reach home alive. On that particular evening,
her father Panfilo Capcap arriving home from work at around 7:30 p.m.,
noted her absence and was told by his wife and other children that Rowena
was not yet home from school. Later, a younger brother of Rowena, sent
on an errand, arrived home carrying Rowena's bag which he had found
dropped in the middle of a street in the village. 2
Panfilo Capcap lost no time in seeking the help of the barangay captain of
Hagonoy, Taguig. Not being satisfied with the latter's promise to send for a
"tanod" to help locate his missing daughter, Panfilo went to the Taguig
Police Station to report his daughter as missing. The desk officer there
advised him that a search party would be mounted presently. 3
Panfilo returned home and, with the help of some neighbors, launched a
search party for the missing Rowena. The search ended in a grassy vacant
lot within the Deva Village Subdivision, only about 70 to 80 meters from the
Capcap residence, where lay the apparently lifeless body of Rowena, her
pants pulled down to her knees and her blouse rolled up to her breasts.
Her underwear was blood-stained and there were bloody fingerprint marks
on her neck. Rowena, her body still warm, was rushed to a hospital in
Taguig, where on arrival she was pronounced dead.4
An autopsy was conducted on the following day by the National Bureau of
Investigation and the autopsy report disclosed the following:
Cyanosis, lips and fingernail beds with pupils dilated
and bloody froths coming out of nostrils.
Abrasions, 1.0 x 3.0 cm., area of the buttocks, left
side; 1.5 x 3.0 cm., area of right elbow.
Contused-abrasions, 3.0 x 8.0 cm., area of the lateral
aspect of the right chest; 4.0 x 5.0 cm., area of the
antero-lateral aspect, middle third, left arm.
Contusion, 7.0 x 13.0 cm., area of the anterior aspect
of the neck from left to right in varying sizes and
shapes.
Interstitial hemorrhages among the muscles and soft
tissues in the anterior aspect of the neck with petechial
hemorrhages noted and severe congestion of the
pharynx with subpleural, subpericardial puntiform
hemorrhages.
Fracture, laryngeal cartilage.
Lungs, presence of multiple petechial hemorrhages
along the surface of both lungs; cut sections showed
severe congestion.
Heart, covered with moderate amount of adipose
tissues with right chamber distended with dark fluid
blood.
Brain and other visceral organs are congested.
Stomach, one-third filled with digested food materials.
CAUSE OF DEATH:
Asphyxia by manual strangulation (throttling).
REMARKS:
Genital examination revealed the presence of an old
healed hymenal laceration at 6:00 o'clock position
corresponding to the face of the watch, edges
rounded, base retracted and non-coaptable. Smears
taken for presence of spermatozoa yield a positive a
positive result. 5
The autopsy report also stated that the multiple injuries indicated the victim
had struggled vigorously with her attacker(s); that the presence of
spermatozoa showed that the victim had sexual intercourse prior to death;
and that death was due to asphyxia by mutual strangulation. 6
By 5 March 1984, an information had been filed in the trial court charging
Ernesto C. Luvendino, Cesar Borca alias "Cesar Putol" and Ricardo de
Guzman alias "Ric" with the crime of rape with murder committed as
follows:
That on or about the 17th day of January, 1983, in the
Municipality of Taguig, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating
together and mutually helping and aiding one another,
by means of force and intimidation, did then and there
willfully, unlawfully and feloniously have carnal
knowledge of one Rowena Capcap y Talana, against
her will and consent; that by reason or on the occasion
thereof, the said accused in pursuance of their
conspiracy, with intent to kill and treachery and taking
advantage of their superior strength, did then and
there willfully, unlawfully and feloniously attack,
assault, hit and strangulate the said Rowena Capcap y
Talana which directly caused her death.
Contrary to law. 7
Warrants of arrest were issued against all the above accused but only
accused-appellant Ernesto Luvendino was actually apprehended; the other
two (2) have remained at large. At arraignment, Luvendino assisted by his
counsel, Atty. Luisito Sardillo, pleaded not guilty and then proceeded to
trial.
On 12 December 1984, the trial court rendered a decision finding
Luvendino guilty, sentencing him to death, requiring him to indemnify the
heirs of the victim Rowena in the amount of P50,000.00 for the damages
suffered as a result of her death.
Appellant Luvendino contends that the trial court committed grievous error
in —
I
. . . having required Atty. Luisito Sardillo to continue as
counsel of the accused-appellant notwithstanding his
[Sardillo's] express mental reservations.
II
. . . believing the insidious machinations of third
persons and witness Salvador B. Cemitara
surrounding the alleged threats [against] Cemitara,
including Exhibit "D."
III
. . . admitting and giving credence to the evidence of
re-enactment and admission of guilt, both of which
were uncounseled.
IV
 . . . giving credence and weight to the identification of
appellant Ernesto Luvendino by witness Cemitara.
V xxx xxx xxx 9
. . . finding appellant Luvendino guilty of rape with
murder. 8
The above assignments of error may be condensed to three (3), that is,
whether or not the trial court erred in: (1) not holding that his
"demonstration" or re-enactment of the crime as well as his subsequent
written admission of guilt as inadmissible for having been made without the
benefit of counsel; (2) according credence to the identification and other
statements made by prosecution witness Cemitara; and (3) allowing
Luvendino's counsel before the trial court to continue as such
notwithstanding such counsel's express mental reservations.
Under his first assignment of error, appellant Luvendino contends that the
"demonstration" or re-enactment and his extrajudicial confession were
effected and secured in the absence of a valid waiver by him of his
constitutional rights and that the re-enactment and the confession should
be held inadmissible in evidence because they had been involuntarily
made.
We turn first to the admissibility of the testimony (of Panfilo Capcap)
relating to the contents of the demonstration or re-enactment of the crime.
The decision of the trial court had the following to say about the re-
enactment:
For sometime, the suspects had not been known. As a
matter of fact, in the January 22 and 23, 1983 issues
of TEMPO, a newspaper of general circulation in
Metro Manila, it was reported that the group of men
who waylaid her were still unidentified, (Exhs. C & R).
However, Panfilo Capcap stated that at about midnight
of February 10, 1983, he was awakened by the police
at their residence. They went to the vacant lot where
they found dead body of Rowena. A police officer,
whom he later knew to be Sgt. Birxo, told him they had
arrested Ernesto Luvendino, alias "Joey". The accused
was then demonstrating how they brought the girl to
the vacant lot. While Luvendino was re-enacting the
events that transpired in the evening of January 17,
pictures were taken by a photographer brought by the
police officers. As the re-enactment was going on,
Capcap said he heard the accused said that he and
his companion boxed her in the stomach, dragged her
to the lot and raped her there. The accused allegedly
admitted he and Cesar Borca had strangled Rowena
and he likewise admitted he had abused her. Capcap
stressed that in the course of the demonstration
Luvendino remarked: "Inaamin ko po na kasama ko si
Cesar Borca sa pag re-rape kay Rowena." Luvendino
allegedly demonstrated how she was boxed, dragged
and abused and pointed to the place where they had
left her remains. Capcapdrew a sketch of the scene
(Exh. I). He also narrated that after the re-enactment,
he and Luvendino were taken to the Eastern Police
District in Pasig and were investigated separately. He
likewise testified that sometime before the
apprehension of Luvendino he was informed by
Ernesto Uy that a certain Bayani Cemitara had seen
Rowena with several men by the entrance of Deva
Village in the early evening of January 17, 1983.
xxx xxx xxx
. . . . The records indicate that immediately after his
apprehension, the police officers brought him to the
Deva Subdivision where he demonstrated how the
victim was boxed, dragged and taken to the vacant lot
where she was raped and throttled to death. According
to the evidence for the prosecution, Luvendino in the
re-enactment, had not only admitted his presence in
the commission of the crime but had likewise admitted
he was with Borca in abusing Rowena. Significantly,
the evidence for the prosecution in this regard was not
rebutted nor denied by the accused.
(Emphasis supplied)
Clearly, the trial court took into account the testimony given by Panfilo
Capcap on what had occurred during the re-enactment of the crime by
Luvendino. We note that the re-enactment was apparently staged promptly
upon apprehension of Luvendino and even prior to his formal investigation
at the police station. 10 The decision of the trial court found that the
accused was informed of his constitutional rights "before he was
investigated by Sgt. Galang in the police headquarters" and cited the
"Salaysay" 11 of appellant Luvendino. 12 The decision itself, however, states
that the re-enactment took place before Luvendino was brought to the
police station. Thus, it is not clear from the record that before the re-
enactment was staged by Luvendino, he had been informed of his
constitutional rights including, specifically, his right to counsel and that he
had waived such right before proceeding with the demonstration. Under
these circumstances, we must decline to uphold the admissibility of
evidence relating to that re-enactment. 13
We consider next the extrajudicial confession of appellant Luvendino.
Luvendino claimed first of all that the extrajudicial confession had been
extracted from him by means of a beating administered by many policemen
at the police station and that a chain had been wrapped around his neck.
The trial court disposed of this claim in the following manner:
In an extra-judicial confession, the confessant carries
the burden of convincing the court that his admissions
are involuntary and untrue. (People v. Manabo, 18
SCRA 30). This Luvendino had failed to do. He
claimed he was given fist blows by many policemen
and his neck was strangled with a chain when he
refused to admit guilt at the Eastern Police District and
then later given the "7-up treatment" in another place.
Although he said he sustained injuries, no proof was
submitted to that effect except his bare and
uncorroborated testimony. He admitted that his mother
and Atty. [Eustacio] Flores were present when he
subscribed before the fiscal the next day, but he did
not say that he had told them about the torture
employed on him. If it were really true that he was
abused in the manner he described it, tale-tell signs of
the maltreatment could have been visible the following
morning and would not escape the notice of his mother
and his lawyer and appropriate steps could have been
taken so that he may be examined by a competent
physician. It is interesting to note that Atty. Flores
made no mention of such injuries when he was called
as a defense witness. 14
The trial court disbelieved and rejected Luvendino's claim that he have
been beaten into making his confession. Appellant has given us no basis
for overturning this conclusion of fact. The presumption of the law is one of
spontaneity and voluntariness of an extrajudicial confession of an accused
in a criminal case, for no person of normal mind would deliberately and
knowingly confess to being the perpetrator of a crime, especially a heinous
crime, unless prompted by truth and conscience. 15 Thus the Court has
ruled that where the confessant failed to present any evidence of
compulsion or duress or violence on his person for purposes of extracting a
confession; where he failed to complain to the officers who administered
the oaths, such as the Fiscal in this case; where he did not institute any
criminal or administrative action against his alleged intimidators for
maltreatment; where he did not have himself examined by a reputable
physician to buttress his claim of maltreatment; and where the assailed
confession is replete with details which could not have been known to the
police officers if they merely concocted the confession, since the
statements were inculpatory in character, the extrajudicial confession may
be admitted, the above circumstances being considered as factors
indicating voluntariness. 16
Luvendino next claimed that he had not been informed of his constitutional
rights before his confession was given by him or extracted from him. In the
first place, Police Sgt. Galang testified as prosecution witness that he had
indeed informed Luvendino of the latter's constitutional rights before he
commenced investigating Luvendino at the police headquarters. 17 In the
second place, the written extrajudicial confession itself stated that
Luvendino was informed of his constitutional rights and that he was waiving
those rights. 18 In the third place, according to Luvendino himself, he first
signed his extrajudicial statement, which also set out a separately signed
waiver of his rights, at the police department and that later, when he was
brought to the office of Provincial Fiscal Mateo, he subscribed to or signed
once more the same document, this time under oath. As already noted
from the trial court's decision, when Luvendino subscribed under oath to
his extrajudicial confession in the presence of the Provincial Fiscal, his
mother and Atty. Eustacio Flores were also present. Said the trial court:
But even as he had waived the right to counsel while
interrogated by Sgt. Galang, the accused was
nevertheless assisted by one before he signed the
"Salaysay", Exhibit "L". From the narration of the
accused himself it can be gathered that the was
brought to the Fiscal's Office in Pasig in the morning of
February 10, 1983. At that office, he was at first aided
by a lawyer from the CLAO. He did not sign the
statement for he wanted to talk to his mother. He was
returned to the police station where his mother saw
him in the afternoon. In the headquarters, they
requested that they be allowed to engage a lawyer of
their choice and their request was granted. The mother
called for Atty. Flores who arrived when the accused
was already back in the Office of the Fiscal. In the
presence of Atty. Flores and his mother, the accused
was investigated by the fiscal after which, also in the
presence of his mother and assisted by Atty. Flores,
the accused signed Exhibit "L". 19 (Emphasis supplied)
Although Atty. Eustacio Flores, a former Mayor of Pateros, did not serve as
defense counsel during the trial, it is clear that Luvendino and his mother
regarded Atty. Flores as Luvendino's counsel at least in respect of that
specific occasion in the Fiscal's office, and that Atty. Flores did so act as
counsel of Luvendino.
It is, however, claimed by appellant Luvendino that at the time he had first
signed his extrajudicial confession at the police headquarters, he was
without counsel. Luvendino thus apparently seeks to distinguish the initial
signing of his "Salaysay" (Exhibit "L") at the police headquarters from his
subsequent subscribing thereto under oath in the Office of the Provincial
Fiscal of Rizal. There is no question that on the latter occasion, Luvendino
was questioned by the Fiscal in the presence of his mother while
Luvendino was assisted by Atty. Eustacio Flores.
In People v. Burgos, 20 the Court did make the following general
statements:
The trial court validly rejected the extra-judicial
confession of the accused as inadmissible in evidence.
The court stated that the appellant's having been
exhaustively subjected to physical terror, violence, and
third degree measures may not have been supported
by reliable evidence but the failure to present the
investigator who conducted the investigation gives rise
to the "provocative presumption" that indeed torture
and physical violence may have been committed as
stated.
The accused-appellant was not accorded his
constitutional right to be assisted by counsel during the
custodial interrogation. The lower court correctly
pointed out that the securing of counsel, Atty. Anyog,
to help the accused when he subscribed under oath to
his statement at the Fiscal's Office was too late. It
could have no palliative effect. It cannot cure the
absence of counsel at the time of the custodial
investigation when the extrajudicial statement was
being taken. 21 (Emphasis supplied)
The above statements in Burgos were not, however, intended to
establish a rigid and automatic rule that the subsequent
presence of and assistance by counsel of the accused prior to
and during the subscribing under oath of an extrajudicial
confession and an accompanying waiver of right to counsel,
cannot have any legal effect at all. For one thing, under the
factual circumstances of People v. Burgos — where the trial
court believed the statements of the accused that he had been
"exhaustively subjected to physical terror, violence and third
degree measures" and where the investigating officer was not
presented as a witness by the prosecution — the above
statements were clearly appropriate. In the case at bar, Police
Sgt. Galang who had interrogated Luvendino at the police station
was, as already pointed out, presented as a witness by the
prosecution and had testified in extenso, that Luvendino had
been informed by him (Police Sgt. Galang) of his constitutional
rights, that Luvendino had waived his rights voluntarily and
intelligently, being convinced that he did not need the assistance
of a lawyer and could, by himself, clarify what had taken place.
Moreover, Luvendino in the Office of the Provincial Fiscal in
Pasig, had initially been assisted by a Citizens Legal Aid Office
(CLAO) lawyer. But he at that time nonetheless declined to
swear to Exhibit "L" and later, together with his mother, insisted
that he be allowed to retain a lawyer of their own choice, which
requests was honored. Moreover, and perhaps more importantly,
the trial court in the instant case did not accord any credence to
Luvendino's claim that he had been physically beaten up by the
police officers at the Taguig police station. In the afternoon of the
same day, Luvendino had every opportunity in the presence of
his mother and his own chosen counsel, Atty. Eustacio Flores, to
denounce to the Provincial Fiscal at the latter's office any
maltreatment that the police officers might have earlier in the day
administered to him, to abjure the extrajudicial confession or the
waiver of his right to counsel there incorporated as non-voluntary
of non-intelligent and to refuse to sign once more under oath
his "Salaysay". He did not do so; Atty. Flores did not do so either
then and there or when he testified as a defense witness. Their
failure to do so deprives his contention before this Court of any
real force. Luvendino may be deemed to have in effect ratified,
before the Fiscal and with the aid of counsel, the extrajudicial
confession and waiver of the right to counsel which he had
earlier signed without the presence of counsel in the police
station.
But even if appellant Luvendino's contention were to be accepted at face
value (and we do not so accept it), the same result must be reached. The
doctrine that an uncounseled waiver of the right to counsel is not to be
given legal effect was initially a judge-made one and was first announced
on 26 April 1983 in Morales v. Enrile 22 and reiterated on 20 March 1985
in People v. Galit. 23 In Morales, the Court explained that Section 20, Article
IV of the 1973 Constitution required that:
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 choses 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. (Emphasis
supplied).
While the Morales-Galit doctrine eventually became part of Section 12(1) of
the 1987 Constitution, that doctrine affords no comfort to appellant
Luvendino for the requirements and restrictions outlined
in Morales and Galit have no retroactive effect and do not reach waivers
made prior to 26 April 1983, the date of promulgation of Morales.
In People v. Nabaluna, 24 the Court upheld the validity of the waiver of the
right to counsel which had been made on 5 December 1977, that is, prior
to 26 April 1983, which waiver had been made without the assistance of
counsel, for the reason that at the time such waiver was made, there was
no rule or doctrine or guideline requiring the waiver of the right to counsel
should itself be made only in the presence and with the assistance of
counsel. The trial court admitted in evidence the extrajudicial statements
made by appellant Nabaluna and found the accused guilty of robbery with
homicide in a decision rendered on 26 September 1981. In affirming the
decision of the trial court, the Court said:
The court in mindful of the strictures and
pronouncements found in the case of Morales v.
Ponce Enrile, G.R. Nos. 61106 and 61107,
promulgated on April 26, 1983, 121 SCRA 538, quoted
and reiterated in the case of People v. Galit, L-51770,
March 20, 1985 and in the case of People v. Pascual,
109 SCRA 197, promulgated on November 12, 1981,
particularly as to the requisite steps before a person
under custodial investigation may be deemed to have
properly waived his right to counsel, such as a counsel
being present to assist him when the accused
manifests such waiver. However, the stated
requirements were laid down in the said cases, to
serve as governing guidelines, only after the judgment
in this case had already been rendered by the trial
court. Consequently, no error should attach to the
admission by the trial court of the extra-judicial
statements given by the accused as evidence in this
case. The trial court was then sufficiently convinced
that the accused had waived assistance of counsel
and there was at that time no pronounced guidelines
requiring that the waiver of counsel by accused can be
properly made only with the presence and assistance
of a counsel. . . . . 25(Emphasis supplied)
It may be recalled that even before Nabaluna, the Court had already
determined that Section 20, Article IV of the 1973 Constitution, was to be
given prospective effect only. In Magtoto v. Manguera, 26 the Court
sustained the admission in evidence of an extrajudicial confession which
had incorporated an uncounseled waiver by the confessant of his
constitutional rights during custodial investigation established in Section
20, Article IV of the 1973 Constitution, upon the ground that such
confession and waiver had been executed before the effectivity of the 1973
Constitution. 27 The decision in Magtoto v. Manguera was not unanimous,
but the majority decision has been reiterated many times 28 and it is much
too late in the day to consider
re-examining the doctrine there laid down.
Applying Nabaluna to the case at bar, we believe and so hold that
appellant Luvendino validly waived his right to counsel so far as his
extrajudicial confession was concerned, although he was not assisted by
counsel when he initially signed his confession at the police headquarters
(disregarding for present purposes only, the subsequent events in the
office of the Provincial Fiscal). At the time the extrajudicial confession and
waiver were first executed (i.e., 10 February 1983), there was no rule of
doctrine prescribing that waiver of the right to counsel may be validly made
only with the assistance of counsel. It is scarcely necessary to add that we
are here referring only to extrajudicial confessions and waivers which were
made voluntarily and intelligently.
Coming now to the second error assigned by appellant Luvendino — that
the trial court had erred grieviously in believing the testimony of
prosecution witness Cemitara — the Court finds no reason to depart from
the well-settled rule that the assessments by a trial court of the credibility
and sincerity of the witnesses who testified before it, are to be accorded
great respect by appellate courts. The trial court gave full faith and
credence to the testimony of prosecution witness Salvador Cemitara in
view of the straightforward character of his testimony. We need only to
note that appellant Luvendino presented no evidence to show any personal
grudge on the part of Cemitara against Luvendino, nor any evidence of any
ill motive weighty enough to have moved Cemitara falsely to testify for the
prosecution. Indeed, there was nothing to show that Cemitara was in the
least bit acquainted with appellant Luvendino before the events which
culminated in the slaying of Rowena Capcap.
Luvendino asserts, as his third principal assignments of error, that he had
been deprived of due process because he was represented, or continued
to be represented, by a lawyer who had manifested mental reservations.
Neither Luvendino nor his counsel — Atty. Sardillo — had indicated what
precisely the latter's mental reservations were. We assume that those
mental reservations consisted of private doubts as to the innocence of
Luvendino of the crime with which he was charged. Atty. Sardillo was
Luvendino's choice as defense counsel. Atty. Sardillo had appeared in at
least two (2) previous hearings and had cross-examined prosecution
witness Cemitara before he (Sardillo) offered in open court to withdraw as
defense counsel on 14 November 1983. The trial court could scarcely be
faulted for declining Atty. Sardillo's offer to withdraw, considering that such
offer had been made without the conformity or permission of Luvendino.
Atty. Sardillo himself did not insist on withdrawing as defense counsel. If
appellant Luvendino in truth had entertained substantial doubts as to the
sincerity or capability or impartiality of his lawyer, he could have easily
terminated the services of that counsel and retained a new one or sought
from the trial court the appointment of counsel de officio. Instead,
Luvendino continued to retain the services of Atty. Sardillo until the trial
court rendered its decision. In any event, an examination of the record will
show that Atty. Sardillo continued to represent appellant Luvendino as
defense counsel with reasonable competence.
We would note, finally, that doubts on the part of a lawyer as to the ultimate
innocence of a client accused of a serious felony do not, in themselves,
constitute bases for claiming miscarriage of justice or failure of due process
or assailing the professional work done by the lawyer. Of course, complete
confidence in the innocence of one's client may lend added sincerity and
even passion to the lawyer's pleading and argumentation. It is, however,
precisely one of the demanding requirements of the legal profession that
the lawyer must present all the defenses and arguments allowed by the law
to a person accused of crime, without regard to the lawyer's private beliefs
or suspicions as to his client's guilt.
Appellant Luvendino's principal defense on the merits was that of alibi. It is
too well-settled to require documentation that, for the defense of alibi to
prosper, the accused must not only prove that he was somewhere else
during the approximate time of the commission of the crime; he must
further prove that it was physically impossible for him to have been at the
scene of the crime during its commission. Luvendino testified that on or
about that time the rape with homicide was committed, he was at his house
in Pateros, recuperating from a wound allegedly sustained from a beating
inflicted upon him by one Romy Boy. Except for his own uncorroborated
testimony, however, Luvendino failed to present any evidence showing that
he was medically incapacitated to be at the scene of the crime during its
commission. He filed no complaint against his alleged assailant "Romy
Boy." Besides, Pateros and Taguig are neighboring municipalities which
public transport readily and quickly available between the two (2) locales;
there was simply no showing that Luvendino could not have been in Taguig
during the time the crime was committed.
Finally, in respect of the civil liability aspects of the crime, the Court
considers that the amount of P4,500.00 representing funeral expenses
actually incurred by the family of Rowena Capcap, should be awarded to
them as actual damages.29 Further, given the circumstances obtaining in
the instant case, especially the ruthless and mindless slaying of Rowena
after she had been raped, the Court believes that the amount of
P30,000.00 should be awarded to Rowena's heirs as moral damages, over
and above the civil indemnity of P50,000.00 which was awarded by the trial
court.
WHEREFORE, the decision of the trial court in Criminal Case No. 54537 is
hereby MODIFIED by changing the enforceable penalty from death
to reclusion perpetua and by requiring appellant Ernesto C. Luvendino to
pay the heirs of Rowena Capcap the amount of P4,500.00 as actual
damages and P30,000.00 as moral damages, in addition to the civil
indemnity of P50,000.00 awarded by the trial court. In all other respects,
the decision of the trial court is AFFIRMED. Costs against accused-
appellant.
SO ORDERED.
 FIRST DIVISION
G.R. No. 73603 June 22, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICISIMO HERNANDEZ and CARLOS IMPERIAL, accused-
appellants.
GANCAYCO, J.:
On suspicion by the members of the Integrated National Police of
Carmona, Cavite for participation in the distribution and sale of marijuana
in the locality, Felicisimo Hernandez and Carlos Imperial, who are both
beauticians, were placed under surveillance until they were arrested on
July 20, 1984. Marked money of P20.00 in two ten peso (P10.00)
bills 1 were found in the possession of Hernandez while marijuana leaves
contained in a matchbox 2 were in the possession of Rizaldy Angcaya, an
informer, who allegedly purchased the same from Hernandez.
Under the foregoing provisions a person under custodial investigation is
entitled to the following rights: (a) the right to remain silent: (b) the right to
counsel; and (c) the right to be informed of these rights. An examination of
the extrajudicial confession of appellant 6 shows that he was informed of
his constitutional right to be silent and of his right to be assisted by counsel
during the said investigation. He was also asked if he was waiving his right
to be assisted by counsel and he answered in the affirmative. However,
this waiver was made without the assistance of counsel.
The clear rule this Court has set is that 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 this procedure, whether
exculpatory or inculpatory, in whole or in part, shall be inadmissible in
evidence.7
The court thus finds that the extrajudicial confession of appellant, Exhibit H,
is not admissible in evidence.
WHEREFORE, the judgment appealed from is hereby REVERSED and
SET ASIDE and another judgment is hereby rendered acquitting accused-
appellant Carlos Imperial with costs de oficio.

Upon investigation by the police, both of them admitted in their sworn

SO ORDERED.
statements having sold marijuana to Rizaldy Angcaya. 3 Upon examination
of the dried leaves contained in the matchbox, they were found to be
marijuana. 4

Thus, in an information that was filed by the Provincial Fiscal of Cavite in

the Regional Trial Court of Bacoor, Cavite, they were charged for the
violation of Section 4 of Republic Act No. 6425, otherwise known as "The
Dangerous Drugs Act of 1972." After arraignment and trial on the merits
they were both convicted of the offense charged in a decision of October
15, 1985 and they were sentenced to life imprisonment and to pay a fine of
P20,000.00 and the costs.

Only Carlos Imperial interposed this appeal alleging that the trial court
committed the following assigned errors:

THE TRIAL COURT ERRED IN ADMITTING THE

ALLEGED EXTRA- JUDICIAL CONFESSION OF THE
ACCUSED-APPELLANT, SAID CONFESSION BEING
INADMISSIBLE BECAUSE IT WAS OBTAINED IN
VIOLATION OF THE CONSTITUTIONAL RIGHTS OF
THE ACCUSED- APPELLANT.

THE TRIAL COURT ERRED IN NOT DECLARING

THAT THE GUILT OF THE ACCUSED- APPELLANT
WAS NOT PROVED BEYOND REASONABLE
DOUBT,

The prosecution relies solely on the extrajudicial confession of appellant

admitting his complicity in the commission of the offense. Rizaldy Angcaya,
the informer, who was allegedly accompanied by appellant to the house of
Hernandez who sold the marijuana leaves to Angcaya, was not presented
as a witness by the prosecution. If the confession of appellant is found
inadmissible in evidence then the case of the prosecution must fall.

Section 20, Article IV of the 1973 Constitution provides as follows:

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.
(Emphasis supplied.) 5
 SECOND DIVISION
G.R. No. Nos. 103259-61 October 1, 1993
HON. ADELINA CALDERON-BARGAS, in her capacity as Assistant
Provincial Prosecutor of Rizal, and Bennett Ll. Thelmo, Petitioners,
vs. THE REGIONAL TRIAL COURT OF PASIG, METRO MANILA,
BRANCH 162, HON. MANUEL S. PADOLINA, in his capacity as
Presiding Judge, Salvador Lacson, Raul L. Locsin and Leticia
Locsin, Respondents.
Tanjuatco, Corpuz, Tanjuatco, Tangle-Chua, Cruz & Aquino Law Offices
for petitioners.chanrobles virtual law library
Rocom Bunag, Kapunana, Migallos Law Offices for repondent Salvador
Lacson.
RESOLUTION
PADILLA, J.:
The main issue for resolution in this petition is whether respondent judge
committed grave abuse of discretion when he ordered the quashal of three
(3) separate informations for libel against respondents on the grounds of
prescription and their right to speedy
trial.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioners assail the orders of respondent judge (Regional Trial Court of
Pasig, Branch, 162), dated 30 August 1991 and 16 December 1991,
rendered in Criminal Case Nos. 73490-92 which are criminal complaints for
libel against herein three (3) private respondents, namely, Salvador
Lacson, Raul Locsin and Leticia Locsin. The orders granted private
respondents' motion to quash the informations in said criminal
cases.chanroblesvirtualawlibrarychanrobles virtual law library
The record of this case show the following antecedents:
1. Respondent Raul, Locsin was the editor and publisher of the
newspaper, Business Day. Other respondents, Leticia Locsin and Salvador
Lacson, were the managing editor and columnist, respectively, of said
newspaper. On 7 April 1987, Salvador Lacson published in Business
Day an article entitled "Insurance Monopoly", which allegedly contained
defamatory statements against petitioner Bennett LL. Thelmo, and
maliciously tried to make it appear that Thelmo was a grafter and
bribe-giver. 1
On 10 April 1987, Thelmo filed an affidavit-complaint with the Office of the
Provincial Prosecutor of Rizal, and the case was assigned to Assistant
Prosecutor Celestino Simon, Jr. for preliminary investigation. 2
2. On 8 February 1988, the Prosecutor issued a resolution recommending
the filing of three (3) separate criminal cases for libel against the three
private respondents. On 23 May 1988, the corresponding informations
were filed and assigned to respondent trial court. On 18 October 1988,
respondent Salvador Lacson filed a motion to quash on the ground of
prescription. Then trial fiscal (Simeon, Jr.) was furnished copy of said
motion. On 19 October 1988, the said motion was set for hearing where
public prosecutor was given 15 days within which to file an
opposition. 3 However, the prosecution after several extensions of time to
submit its comment or opposition to the motion, failed to comply
therewith. 4
3. Hence, on 03 January 1991, respondent court issued an order granting
the motion to quash the informations, on the ground of prescription. In said
order, 5 the court held that considering that libel cases prescribe within one
year; that the article "Insurance Monopoly" was published on 7 April 1987;
and that the informations were filed only in May 1988 - the case had
already prescribed, notwithstanding the fact that the affidavit-complaint for
libel was filed with the prosecutor's office on 10 April 1987. The respondent
court ruled that the filing of the affidavit-complaint with the office of the
prosecutor did not stop the running of the one-year prescriptive period; that
the last day for filing the criminal information was 7 April 1988 or at the
latest 10 April 1988(that is one year from 7 April 1987 when the said article
was published.) Petitioner-private complainant filed a motion for
reconsideration of the order of 03 January 1991, which motion the private
respondents opposed on the ground, among others, that failure of the
prosecution to file comment on the motion, despite due notice and order of
the respondent court, was tantamount to lack of interest on the part of the
fiscal to prosecute the offense charged. 6
4. Acting on the motion for reconsideration, on 3 May 1991, respondent
court rendered an order, granting the motion of petitioner-complainant, for
reconsideration of the order dated 03 January 1991, thereby reinstating the
three (3) criminal informations.chanroblesvirtualawlibrarychanrobles virtual
law library
In the said order of 3 May 1991, respondent court ruled as follows: that in
the Olarte case, 19 SCRA 494 (1967), it was held that the filing of
complaint in the municipal court, even if it be merely for purposes of
preliminary investigation/examination, interrupts the period of prescription,
pursuant to Article 91 of Revised Penal Code; that the case of Francisco
v. CA, 122 SCRA 538 (1983) ruled that the filing of complaints for libel with
the fiscal's office interrupts the period of prescription. 7
5. But, respondent court issued another order dated 30 August 1991(now
assailed), granting the motion for reconsideration of the order of 03 May
1991, filed by respondents, thereby dismissing the informations, on the
ground of prescription and violation of private respondents' constitutional
right to speedy trial. In the order of 30 August 1991, respondent court
reiterated its ruling in the order of 03 January
1991. 8
6. On 16 December 1991, respondent court denied petitioner-
complainant's motion for reconsideration of the order dated 30 August
1991. 9chanrobles virtual law library
In the now assailed order of 30 August 1991, respondent court granted
private respondents' motion to quash on the principal ground that the
prosecution's delay in prosecuting the criminal cases violated the
accused's constitutional right to speedy trial. The respondent court said:
Moreover, even by a stretch of imagination the Court cannot comprehend
why these cases have been dragged or pending for four (4) years now
since the filing of the informations in 1988. Not only that the preliminary
investigation took more than one (1) year to terminate. Such long delay in
the preliminary investigation alone is already violative of the accused's
constitutional rights to due process and speedy disposition of their cases
and even worse, after the informations were filed, the prosecution
continued with the delay. This Court waited for two (2) years for the
prosecution's comment (on the motion to quash) but to no
avail. 10 (Emphasis supplied)
Private Prosecutor, for petitioner-complainant, in an effort to explain the
failure to file comment on the motion to quash, argues that such failure was
due to the fact that no copy of said motion to quash was furnished
petitioner-complainant Thelmo; that a copy thereof was given only to the
public prosecutor who originally handled the case; and that the respondent
court could have resolved the motion even without waiting for the comment
of the prosecution and could have declared that the prosecution had
waived the right to file comment on the motion to
quash.chanroblesvirtualawlibrarychanrobles virtual law library
On the other hand, the respondent court, in rejecting the prosecution's
(private prosecutor's) explanation for failure to file comment on the motion
to quash, held as follows:
Further, this Court cannot buy the argument of the private prosecutor that
they were not furnished a copy of the Motion to Quash. It is too elementary
in our operating table of justice that notice to the fiscal who has the direct
control and supervision of the case is also notice to the private prosecutor.
Nowhere in our law and jurisprudence (sic) that, as a matter of course,
counsel for the private complainant is entitled to a copy of the said Motion
to Quash. Suffice it to state that a copy to the fiscal is already enough.
Furthermore, the record will bear that the then trial fiscal (Fiscal Simon, Jr.)
in charge of this case was furnished a copy of it. Now, the burden lies on
the counsel for the private prosecutor to follow-up the status of the case
and see to it whether the wheel of justice grinds. . . . 11chanrobles virtual
law library
We rule for the respondents.chanroblesvirtualawlibrarychanrobles virtual Moreover, since there was non-compliance for an unreasonable length of
law library time with the order of the respondent court to file comment on the
aforecited motion to quash - which constituted a failure to prosecute the
cases - they were properly dismissable. However, the motion to quash the
Clearly, the prosecution failed to file comment on the accused's motion to
informations was not strictly the proper remedy, because a denial of the
quash, despite the admitted service of a copy thereof on the then trial fiscal
right to speedy trial is not one of the grounds (Sec. 3 Rule 117 of the
handling the case (Fiscal Simon, Jr.), and despite order of respondent
Revised Rules on Criminal Procedure) upon which a motion to quash a
court directing comment on said motion to quash. Moreover, the
complaint or information may be grounded. The denial of the accused's
prosecution failed to file said comment after asking for several extensions
right to speedy trial as a consequence of the prosecution's failure to
of time to file it. It will be noted that the motion to quash was filed on 18
prosecute for over two (2) years gave rise to a motion to dismiss. The
October 1988, and prosecutor was given fifteen (15) days within which to
cases were properly dismissable on this
file comment/opposition thereto.chanroblesvirtualawlibrarychanrobles
score.chanroblesvirtualawlibrarychanrobles virtual law library
virtual law library

It will also be noted that the respondent court in its order of 30 August 1991
When the respondent court issued the order of 03 January1991, granting
granted the motion to quash on the additional ground of prescription. It
accused's motion to quash, more than two (2) years had lapsed, without
ruled that since the offense of libel prescribes within one (1) year (in
public prosecutor having filed any comment despite, we repeat, several
accordance with Article 90 of the Revised Penal Code), and further
extensions of time granted to the prosecution, within which to file comment.
considering that the informations at bench werefiled only in May 1988, or
This failure of the prosecution to file said comment is aclear defiance of, or
more than one (1) year after the alleged libelious article was published, the
at, least a non-compliance with the order of 19 October 1988 of the
crimes charged had already prescribed when the informations were
respondent court. And such non-filing of the comment, on the part of the
filed.chanroblesvirtualawlibrarychanrobles virtual law library
prosecution for more than two (2) years, is undoubtedly an unreasonable
failure or delay.chanroblesvirtualawlibrarychanrobles virtual law library
While it may be true that prescription of offenses is aground upon which a
motion to quash may be anchored - on the theory that criminal liability has,
In civil cases, Section 3, Rule 17 of the Rules of Court, provides as follows:
in effect, been extinguished - we do not again agree with the respondent
court that the libel, if any, had prescribed when the informations were
If plaintiff fails to appear at the time of the trial or to prosecute his action for filed.chanroblesvirtualawlibrarychanrobles virtual law library
an unreasonable length of time, or to comply with these rules or any order
of the court, the action may be dismissed upon motion of the defendant or
Article 91 of the Revised Penal Code provides as follows:
upon the court's own motion. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise provided by court.
(Emphasis supplied) Art 91. Computation of prescription of offenses. - The period of prescription
shall commence to run from the day, on which the crime is discovered by
the offended party, the authorities, or their agents, . . . and shall be
In criminal cases, the rules are quite similar. Under Section 1(h), Rule 115,
interrupted by the filing of the complaint or information, and shall
Revised Rules on Criminal Procedure, one of the lights of the accused is
commence to run again when such proceedings terminate without the
the right "to have a speedy, impartial and public trial." A denial of this right
accused being convicted or acquitted, or are unjustifiably stopped for any
entitles the accused to a dismissal of the case, upon filing the appropriate
reason not imputable to him. (Emphasis supplied)
motion to dismiss and the dismissal operates as an acquittal. 12chanrobles
virtual law library
In the present case, the criminal complaint was filed with the office of the
prosecutor on 10 April 1987. The alleged libelious article was published on
In the cited Quizada case, the Court held:
07 April 1987. Hence, the complaint was filed with the prosecutor's office
three (3) days after the publication or the alleged libelous article. Thus, the
There are only two occasions when double jeopardy will attach even if the running of the prescriptive period was interrupted on 10 April
motion to dismiss the case is made by the accused himself. The first is 1987.chanroblesvirtualawlibrarychanrobles virtual law library
when the ground is insufficiency of the evidence of the prosecution, and
the second is when the proceedings have been unreasonably prolonged in
In Francisco v. Court of Appeals, this Court held that the filing of a
violation of the right to a speedy trial.
complaint in the fiscal's office interrupts the period of
prescription. 15chanrobles virtual law library
In Bermisa vs. Court of Appeals, 13 it was held that the right to a speedy
trial is denied the accused "where through the vacillation and
All told, we hold that the dismissal of the criminal cases at bench is proper
procrastination of prosecuting officers, the accused is forced to wait many
on the ground of the prosecution's failure to prosecute the cases which, as
months or years for trial." And in Domingo vs. Minister of National
a consequence, denied the private respondents their right to a speedy
Defense, 14 we said that "there is no disputing the proposition that the non-
trial.chanroblesvirtualawlibrarychanrobles virtual law library
observance of the constitutional mandate that the accused in all criminal
prosecutions shall enjoy the right to have a speedy trial can result in the
loss of the right of the government to prosecute him for the crime of which ACCORDINGLY, the assailed orders of respondent court, dated 30 August
he is charged, and the accused is entitled to be released on habeas 1991 and 16 December 1991, rendered in Criminal Case Nos. 73490-92
corpus; and that the dismissal of the case based on that ground would are SET ASIDE. But the respondent court is ordered to DISMISS said
amount to an acquittal."chanrobles virtual law library criminal cases against private respondents with
prejudice.chanroblesvirtualawlibrarychanrobles virtual law library
In the criminal cases at bench, it is clear that the prosecution failed to
prosecute them for an unreasonable length of time. The fiscal (assistant SO ORDERED.
provincial prosecutor) who was handling the subject cases and who under
Section 5, Rule 110 of the Revised Rules on Criminal Procedure is
responsible for their direction and control, failed in this
task.chanroblesvirtualawlibrarychanrobles virtual law library

As correctly pointed out by respondent court, it is not a sufficient excuse to

say that the delay in the prosecution of the cases at bench was due to the
fact that private prosecutor was not furnished a copy of the motion to
quash, upon which motion respondent court ordered the prosecution to
comment. We agree with the respondent court that it is enough that the
trial fiscal was furnished a copy of the motion to quash and the prosecution
ordered to comment thereon.chanroblesvirtualawlibrarychanrobles virtual
law library
 SECOND DIVISION
[G.R. No. L-2792. May 23, 1950.]
ROMEO JACA, Petitioner, v. MANUEL BLANCO, Judge of the Court of
First Instance of Iloilo, Respondent.
Rodrigo J. Harder for Petitioner.
The respondent judge and Eleuterio J. Gustilo for Respondent.
SYLLABUS
1. CRIMINAL PROCEDURE, RULES OF; DOUBLE JEOPARDY;
DISMISSAL OF CRIMINAL CASE WITHOUT PREJUDICE. — The
dismissal contemplated in section 9 of Rule 113 of the Rules of Court is a
definite or unconditional dismissal which terminates the case, and not a
dismissal without prejudice. In the absence of any statutory provision to the
contrary, there is no reason why the court may not, in the interest of justice,
dismiss a criminal case provisionally, i e., without prejudice to reinstating it
before the order becomes final or to the subsequent filing of a new
information for the same offense. If the accused should deem such
conditional or provisional dismissal to be unjust and prejudicial to him
because he has been deprived of his right to a speedy trial, as for instance
where the case has dragged on for an unreasonably long time without his
fault, he could and should object to such dismissal and insist that the case
be heard and decided on the merits. Upon such objection and insistence of
the accused, if the prosecution does not present its evidence and if its
failure to do so is unjustified, the court should dismiss the case for failure to
prosecute. Such dismissal would come under the purview of section 9,
Rule 113.
DECISION
any statutory provision to the contrary, we find no reason why the court
may not, in the interest of justice, dismiss a criminal case provisionally, i.e.,
without prejudice to reinstating it before the order becomes final or to the
subsequent filing of a new information for the same offense. If the accused
should deem such conditional or provisional dismissal to be unjust and
prejudicial to him because he has been deprived of his right to a speedy
trial, as for instance where the case has dragged on for an unreasonably
long time without his fault, he could and should object to such dismissal
and insist that the case be heard and decided on the merits. Upon such
objection and insistence of the accused, if the prosecution does not
present its evidence and if its failure to do so is unjustified, the court should
dismiss the case for failure to prosecute. Such dismissal would come under
the purview of section 9, Rule 113.
In the present case the information was filed on or after October 12, 1948;
the accused, who was at liberty on bail, was arraigned on January 15,
1949, when the case was first set for trial; but the trial did not take place
then because the respondent judge was in Manila, and although the
private prosecutor appeared with his witnesses, neither the accused nor
his attorney appeared. At the request of the private prosecutor the case
was reset for trial on February 3, 1949, when the fiscal and the private
prosecutor with their witnesses appeared four minutes after the case had
been called. Both the accused and his attorney were present when the
respondent judge dictated the order of dismissal without prejudice, but
interposed no objection thereto. Under the circumstances we find no
violation of any constitutional right of the accused by the respondent judge
in reconsidering his previous order of dismissal a few minutes after it was
dictated and in reinstating the case against the accused. The accused had
been neither previously convicted nor acquitted, nor had the case against
him been definitely dismissed since the dismissal was without prejudice.
Had the respondent judge refused to vacate the order of dismissal under
the circumstances, we think he would have committed a grave miscarriage
of justice.

The petition is denied, with costs against the petitioner.

OZAETA, J.:
Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.

Romeo Jaca was accused before the Court of First Instance of Iloilo of Petition denied.
triple homicide through reckless imprudence. After arraignment the case
was called for trial at 8:06 in the morning of February 3, 1949, and counsel
for the accused entered his appearance. The accused was also present.
But as nobody appeared for the prosecution, the court then and there
dismissed the case without prejudice. Four minutes later counsel for the
private prosecution arrived, followed a little later by the City Fiscal together
with the witnesses for the prosecution, and explained to the court that their
tardiness was due to the fact that the chauffeur of the jeep in which they
were riding was detained by a policeman for driving on the wrong side of
the street. Satisfied with the explanation, the respondent judge set aside
the order of dismissal and reset the case for trial on the following morning,
February 4, 1949. On that date counsel for the accused asked for the
postponement of the trial until February 16, and the respondent judge
granted the request. In the meantime, that is to say, on February 5, 1949,
counsel for the accused moved for the reconsideration of the order of the
court setting aside its order of dismissal and reinstating the case, on the
ground that the court had exceeded its jurisdiction in so doing.

That motion having been denied, the accused filed the present petition
for certiorari, contending that by setting aside its order of dismissal and
reinstating the case, the respondent judge placed him in double jeopardy
inasmuch as he had been arraigned and the dismissal of the case was
without his express consent.

The accused-petitioner relies upon section 9 of Rule 113, which reads as

follows:red:chanrobles.com.ph

"SEC. 9. Former conviction or acquittal or former jeopardy. - When a

defendant shall have been convicted or acquitted, or the case against him
dismissed or otherwise terminated without the express consent of the
defendant, by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to
sustain a conviction, and after the defendant had pleaded to the charge,
the conviction or acquittal of the defendant or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the
former complaint or information.."

We hold that the dismissal contemplated in the above-quoted section of the

rule is a definite or unconditional dismissal which terminates the case, and
not a dismissal without prejudice as in the present case. In the absence of
 EN BANC The questions were not clarificatory but adversary; and when they were not
adversary, they were irrelevant, and sometimes also cruel. At one point,
the judge drew from the witness the statement that his mother was living
G.R. No. L-46272 June 13, 1986
with another man; forthwith he suggested that the mother was unfaithful to
his father. 12 We deplore this sadistic treatment of the witness, especially
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, as, for all his supposed "toughness," he could not answer back. We fail to
vs. see what possible connection the mother's infidelity could have had, by any
ALBERTO OPIDA y QUIAMBAO and VIRGILIO MARCELO, accused- stretch of the imagination, with the instant prosecution.
appellants.
But the judge was to save the best or worst of his spite for the third
witness, Lilian Layug, a waitress in the restaurant where the appellant
CRUZ, J.: Opida was working as a cook. Noting at the outset that she spoke English,
he wanted to know where she had learned it and asked in ill-concealed
insinuation if she had worked in Angeles City or Olongapo or
This is an automatic review of the Decision of the Circuit Criminal Court, Sangley. 13 Because she was gesturing nervously, he asked, "Are you a
Seventh Judicial District, imposing the death penalty upon Alberto Opida conductor? 14 Of the two accused, he asked her, "They are very proud of
and Virgilio Marcelo for the crime of murder.
belonging to the Commando gang to which the witness answered, putting
him in his place, "That I do not know, Your Honor." 15
Unlike the victim in this case, who died from only one stab wound, the
decision under review suffers from several fatal flaws, all equally deadly. It
One cannot but note the mockery in the following questions put by the
suffices to discuss only one of them. judge to the witness, who was probably wondering what the interrogation
was all about
Time and again this Court has declared that due process requires no less Court
than the cold neutrality of an impartial judge. 1 Bolstering this requirement, Q You are a very good friend of Alberto Opida?
we have added that the judge must not only be impartial but must also A Yes, Your Honor.
appear to be impartial, to give added assurance to the parties that his Q You have known him for years?
decision will be just. 2 The parties are entitled to no less than this, as a A One year only, Your Honor.
minimum guaranty of due process. This guaranty was not observed in this Q He always feed you with his favorite menu?
case. A Yes, Your Honor.
Q He is a very good cook?
A Yes, Your Honor.
On July 31, 1976, in Quezon City, several persons ganged up on Fabian Q Because what he could cook, you could not cook?
Galvan, stoned and hit him with beer bottles until finally one of them A I know also how to cook, Your Honor.
stabbed him to death. The actual knife-wielder was identified as Mario del Q Answer my question.
Mundo. 3Nonetheless, Alberto Opida and Virgilio Marcelo were charged A Yes, Your Honor.
with murder as conspirators and, after trial, sentenced to death. 4 Q Whenever you try to cook what he cooked, you could not
imitate it, because he is a good cook?
The basis of their conviction by the trial court was the testimony of two A Yes, Your Honor.
prosecution witnesses, neither of whom positively said that the accused Q So, your admiration developed because of his cooking?
were at the scene of the crime, their extrajudicial confessions, which were A Yes, Your Honor.
secured without the assistance of counsel, and corroboration of the alleged Q What favorite dish does he cook that you like, as far as you
conspiracy under the theory of interlocking confession. 5 are concerned?
A Adobo, Your Honor.
Q Most often you request him to cook adobo for you?
What is striking about this case is the way the trial judge conducted his A Yes, Your Honor.
interrogation of the two accused and their lone witness, Lilian Layug. It was Q That is precisely one of the reasons why you also admire him?
hardly judicious and certainly far from judicial, at times irrelevant, at Worst A That is also a part, Your Honor,
malicious. Reading the transcript, one gathers the impression that the Q Whenever you request him to cook adobo for you, he always
judge had allied himself with the prosecution to discredit at the outset the accommodate you?
credibility of the witnesses for the defense. A Yes, Your Honor.
Q As a matter of fact, the moment that he starts cooking adobo,
Opida is a police character, admittedly a member of the Commando gang you could smell it already?
and with a string of convictions for robbery, theft and vagrancy. 6 It is worth A Yes, Your Honor,
noting that the judge took special interest in his tattoos, required him to Q That starts your admiration for him.
remove his shirt so they could be examined, and even described them in A Yes, Your Honor.
detail for the record. 7 Q And in return you reciprocate?
A Yes, Your Honor.
Q What kind of reciprocation do you give to Alberto Opida,
Besides belaboring Opida's criminal activities and his tattoos, the judge whenever you admire his cooking of adobo for you, cooking just
asked him if he had "ever been convicted at the National Mental Hospital for you?
with what else but malice and suggested to him that his claim of A None, Your Honor.
manhandling by the police was a lie because investigators leave no mark Q Whenever he cooks adobo, he was singing?
when they torture a suspect. 8 This was a point that could have been A Sometimes, Your Honor.
validly raised by the prosecution but certainly not by the court. The judge Q What kind of song?
also made it of record that the witness was gnashing his teeth, was A He is singing a song with intended for Cora, Your Honor.
showing signs of hostility, that he was uneasy and that he was restless. Q And you were also affected by it?
"Now, whom do you want to fool the judge asked, "the prosecutor, your A No, Your Honor.
lawyer, or the court? 9 Q You mean to say, you are not very fond of emotional songs?
A I am not, because Cora is not minding him, Your Honor.
In the hearing of September 22, 1976, the interrogation of Virgilio Marcelo, Q But sometimes he sings in the absence of Cora because, as
the other accused, was conducted almost wholly by the judge who started you said, he is cooking adobo for you?
cross-examining the witness even before the defense counsel could ask A Yes, Your Honor.
his first question, and took over from the prosecution the task of Q What does he sings (sic) for you?
impeaching Marcelo's credibility.10 The judge asked him about his drug A He sings many songs, Your Honor.
addiction, his membership in the Commando gang, his tattoos, his Q For example, give the title
parentage, his activities, his criminal record all when he was supposed to A Milagro, Your Honor.
be under direct examination by his own lawyer. Defense counsel could Q He also sings Diyos Lamang Ang Nakakaalam?
hardly put in a word edgewise because the judge kept interrupting to ask A Sometimes, Your Honor.
his own questions. 11 Q He also sings Kapantay ay Langit?
A Yes, Your Honor.
 Q He also sings Sapagkat Tayo'y Tao Lamang? SO ORDERED.
A I did not hear, Your Honor.
Q But, you said he also sings even in the absence of Cora?
A Yes, Your Honor.
Q You smell adobo while he cooks and sings. So, you developed
admiration also?
A Little only, Your Honor.
Q One way or another you have appreciated him, but the only
thing, as you know, he is related to Cora in the same way?
A Yes, Your Honor.
Q That is why you are testifying in his favor? Because of the
smell of adobo and his songs and it is an admiration. Therefore,
there is that tendency to testify in his favor?
A Yes, Your Honor. 16

On direct examination, Opida challenged his extrajudicial confession,

claiming it had been obtained without observance of the rights available
under Article IV, Section 20 of the Constitution, particularly the right to
counsel. 17Parenthetically, the extrajudicial confession of Marcelo was also
made without assistance of counsel. 18 Opida also testified, under
questioning from his counsel, that he had been repeatedly hit with a "dos
por dos" by a police officer while he was being investigated. 19

We have consistently held that the rights guaranteed during a custodial

investigation are not supposed to be merely communicated to the suspect,
especially if he is unlettered, but must be painstakingly explained to him so
he can understand their nature and significance. Moreover, manhandling of
any sort will vitiate any extrajudicial confession that may be extracted from
him and renders it inadmissible in evidence against him. 20

Those principles were given mere lip service by the judge, who did not
bother to look deeper into the validity of the challenged confessions.

Given the obvious hostility of the judge toward the defense, it was
inevitable that all the protestations of the accused in this respect would be,
as they in fact were, dismissed. And once the confessions were admitted, it
was easy enough to employ them as corroborating evidence of the claimed
conspiracy among the accused.

The accused are admittedly notorious criminals who were probably even
proud of their membership in the Commando gang even as they flaunted
their tattoos as a badge of notoriety. 21 Nevertheless, they were entitled to
be presumed innocent until the contrary was proved and had a right not to
be held to answer for a criminal offense without due process of law. 22

The judge disregarded these guarantees and was in fact all too eager to
convict the accused, who had manifestly earned his enmity. When he said
at the conclusion of the trial, "You want me to dictate the decision now?" 23,
he was betraying a pre-judgment long before made and obviously waiting
only to be formalized.

The scales of justice must hang equal and, in fact, should even be tipped in
favor of the accused because of the constitutional presumption of
innocence. Needless to stress, this right is available to every accused,
whatever his present circumstance and no matter how dark and repellent
his past. Despite their sinister connotations in our society, tattoos are at
best dubious adornments only and surely not under our laws indicia of
criminality. Of bad taste perhaps, but not of crime.

In any event, convictions are based not on the mere appearance of the
accused but on his actual commission of crime, to be ascertained with the
pure objectivity of the true judge who must uphold the law for all without
favor or malice and always with justice.

Accused-appellants Opida and Marcelo, who have been imprisoned since

1976, have sent us separate letters pleading for the resolution of their
death sentences one way or the other once and for all. Considering the
way they were tried, we now declare that they should not be detained in jail
a minute longer. While this is not to say that the accused are not guilty, it
does mean that, because their constitutional rights have been violated,
their guilt, if it exists, has not been established beyond reasonable doubt
and so cannot be pronounced. Due process has stayed the uneven hand
of the quick condemnor and must set the defendants free.

WHEREFORE, the conviction of Alberto Opida and Virgilio Marcelo is

reversed and they are hereby ordered released immediately. No costs.
 EN BANC
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and
FRANCISCO JOSE, Provincial Fiscal of Isabela,respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains
that the respondent judge ordered him to appear before the provincial fiscal
to take dictation in his own handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether or not it is
he who wrote certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in these
proceedings; but the respondents contend that the petitioner is not entitled
to the remedy applied for, inasmuch as the order prayed for by the
provincial fiscal and later granted by the court below, and again which the
instant action was brought, is based on the provisions of section 1687 of
the Administrative Code and on the doctrine laid down in the cases of
People vs. Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil.,
145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for
the respondents, and in the case of Villaflor vs. Summers (41 Phil., 62)
cited by the judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code, and
the proper judge, upon motion of the fiscal, may compel witnesses to be
present at the investigation of any crime or misdemeanor. But this power
must be exercised without prejudice to the constitutional rights of persons
cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks
refuge in the constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether the
constitutional provision invoked by the petitioner prohibits compulsion to
execute what is enjoined upon him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which
(in Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun
proceso criminal" and has been incorporated in our Criminal Procedure
(General Orders, No. 58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that the
English text of the Jones Law, which is the original one, reads as follows:
"Nor shall be compelled in any criminal case to be a witness against
himself."
This text is not limited to declaracion but says "to be a witness." Moreover,
as we are concerned with a principle contained both in the Federal
constitution and in the constitutions of several states of the United States,
but expressed differently, we should take it that these various phrasings
have a common conception.
In the interpretation of the principle, nothing turns upon the
variations of wording in the constitutional clauses; this much is
conceded (ante, par. 2252). It is therefore immaterial that the
witness is protected by one constitution from 'testifying', or by
another from 'furnishing evidence', or by another from 'giving
evidence,' or by still another from 'being a witness.' These
various phrasings have a common conception, in respect to the
form of the protected disclosure. What is that conception? (4
Wigmore on Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony, but
extends to all giving or furnishing of evidence.
The rights intended to be protected by the constitutional
provision that no man accused of crime shall be compelled to be
a witness against himself is so sacred, and the pressure toward
their relaxation so great when the suspicion of guilt is strong and
the evidence obscure, that is the duty of courts liberally to
construe the prohibition in favor of personal rights, and to refuse
to permit any steps tending toward their invasion. Hence, there is
the well-established doctrine that the constitutional inhibition is
directed not merely to giving of oral testimony, but embraces as
well the furnishing of evidence by other means than by word of
mouth, the divulging, in short, of any fact which the accused has
a right to hold secret. (28 R. C. L., paragraph 20, page 434 and
notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether the writing
from the fiscal's dictation by the petitioner for the purpose of comparing the
latter's handwriting and determining whether he wrote certain documents
supposed to be falsified, constitutes evidence against himself within the
scope and meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own
behalf, denies that a certain writing or signature is in his own hand, he may
on cross-examination be compelled to write in open court in order that the
jury maybe able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter,
1013) inasmuch as the defendant, in offering himself as witness in his own
behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where
the judge asked the defendant to write his name during the hearing, and
the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us.
We are not concerned here with the defendant, for it does not appear that
any information was filed against the petitioner for the supposed
falsification, and still less as it a question of the defendant on trial testifying
and under cross-examination. This is only an investigation prior to the
information and with a view to filing it. And let it further be noted that in the
case of Sprouse vs. Com., the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of
writing of the defendant was obtained before the criminal action was
instituted against him. We refer to the case of People vs. Molineux (61
Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the
aforesaid case of Sprouse vs. Com., the defendant voluntarily offered to
write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to
the defendant's right to decline to write, and to the fact that
he voluntarily wrote. The following appears in the body of said decision
referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley.
He preferred to accede to the latter's request, and we can
discover no ground upon which the writings thus produced can
be excluded from the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41
Mich., 709; 3 N. W., 199), that the defendant could not be compelled to
write his name, the doctrine being stated as follows:
The defendant being sworn in his own behalf denied the
endorsement.
He was then cross-examined the question in regard to his having
signed papers not in the case, and was asked in particular
whether he would not produce signatures made prior to the note
in suit, and whether he would not write his name there in the
 court. The judge excluded all these inquiries, on objection, and it some cases criminals may succeed in evading the hand of justice, but such
is of these rulings that complaint is made. The object of the cases are accidental and do not constitute the raison d' etre of the
questions was to bring into the case extrinsic signatures, for the privilege. This constitutional privilege exists for the protection of innocent
purpose of comparison by the jury, and we think that the judge persons.
was correct in ruling against it.
With respect to the judgments rendered by this court and cited on behalf of
It is true that the eminent Professor Wigmore, in his work cited (volume 4, the respondents, it should be remembered that in the case of People vs.
page 878), says: Badilla (48 Phil., 718), it does not appear that the defendants and other
witnesses were questioned by the fiscal against their will, and if they did
not refuse to answer, they must be understood to have waived their
Measuring or photographing the party is not within the privilege.
constitutional privilege, as they could certainly do.
Nor it is the removal or replacement of his garments or shoes.
Nor is the requirement that the party move his body to enable the
foregoing things to be done. Requiring him to make specimens The privilege not to give self-incriminating evidence, while
of handwriting is no more than requiring him to move his body . . absolute when claimed, maybe waived by any one entitled to
." but he cites no case in support of his last assertion on invoke it. (28 R. C. L., paragraph 29, page 442, and cases
specimens of handwriting. We note that in the same paragraph noted.)
2265, where said authors treats of "Bodily Exhibition." and under
preposition "1. A great variety of concrete illustrations have been
The same holds good in the case of United States vs. Tan Teng (23 Phil.,
ruled upon," he cites many cases, among them that of People
145), were the defendant did not opposethe extraction from his body of the
vs. Molineux (61 N. E., 286) which, as we have seen, has no
substance later used as evidence against him.
application to the case at bar because there the defendant
voluntary gave specimens of his handwriting, while here the
petitioner refuses to do so and has even instituted these In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that
prohibition proceedings that he may not be compelled to do so. the court preferred to rest its decision on the reason of the case rather than
on blind adherence to tradition. The said reason of the case there
consisted in that it was the case of the examination of the body by
Furthermore, in the case before us, writing is something more than moving
physicians, which could be and doubtless was interpreted by this court, as
the body, or the hands, or the fingers; writing is not a purely mechanical
being no compulsion of the petitioner therein to furnish evidence by means
act, because it requires the application of intelligence and attention; and in
of testimonial act. In reality she was not compelled to execute any positive
the case at bar writing means that the petitioner herein is to furnish a
act, much less a testimonial act; she was only enjoined from something
means to determine whether or not he is the falsifier, as the petition of the
preventing the examination; all of which is very different from what is
respondent fiscal clearly states. Except that it is more serious, we believe
required of the petitioner of the present case, where it is sought to compel
the present case is similar to that of producing documents or chattels in
him to perform a positive, testimonial act, to write and give a specimen of
one's possession. And as to such production of documents or chattels.
his handwriting for the purpose of comparison. Besides, in the case of
which to our mind is not so serious as the case now before us, the same
Villamor vs. Summers, it was sought to exhibit something already in
eminent Professor Wigmore, in his work cited, says (volume 4, page 864):
existence, while in the case at bar, the question deals with something not
yet in existence, and it is precisely sought to compel the petitioner to make,
. . . 2264. Production or Inspection of Documents and Chattels. prepare, or produce by this means, evidence not yet in existence; in short,
— 1. It follows that the production of documents or chattels by a to create this evidence which may seriously incriminate him.
person (whether ordinary witness or party-witness) in response
to a subpoena, or to a motion to order production, or to other
Similar considerations suggest themselves to us with regard to the case of
form of process treating him as a witness ( i.e. as a person
United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
appearing before a tribunal to furnish testimony on his moral
not compelled to perform any testimonial act, but to take out of his mouth
responsibility for truthtelling), may be refused under the
the morphine he had there. It was not compelling him to testify or to be a
protection of the privilege; and this is universally conceded. (And
witness or to furnish, much less make, prepare, or create through a
he cites the case of People vs. Gardner, 144 N. Y., 119; 38 N.E.,
testimonial act, evidence for his own condemnation.
1003)

Wherefore, we find the present action well taken, and it is ordered that the
We say that, for the purposes of the constitutional privilege, there is a
respondents and those under their orders desist and abstain absolutely
similarity between one who is compelled to produce a document, and one
and forever from compelling the petitioner to take down dictation in his
who is compelled to furnish a specimen of his handwriting, for in both
handwriting for the purpose of submitting the latter for comparison.
cases, the witness is required to furnish evidence against himself.

Without express pronouncement as to costs. So ordered.

And we say that the present case is more serious than that of compelling
the production of documents or chattels, because here the witness is
compelled to write and create, by means of the act of writing, evidence
which does not exist, and which may identify him as the falsifier. And for
this reason the same eminent author, Professor Wigmore, explaining the
matter of the production of documents and chattels, in the passage cited,
adds:

For though the disclosure thus sought be not oral in form, and
though the documents or chattels be already in existence and
not desired to be first written and created by testimonial act or
utterance of the person in response to the process, still no line
can be drawn short of any process which treats him as a
witness; because in virtue it would be at any time liable to make
oath to the identity or authenticity or origin of the articles
produced. (Ibid., pp. 864-865.) (Emphasis ours.)

It cannot be contended in the present case that if permission to obtain a

specimen of the petitioner's handwriting is not granted, the crime would go
unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even
supposing it is impossible to obtain specimen or specimens without
resorting to the means complained herein, that is no reason for trampling
upon a personal right guaranteed by the constitution. It might be true that in