1. G.R. No. 116623. March 23, 1995.

* engendered by the use of the term “may” in this rule relates only to the option of
filing a motion for preliminary investigation; it does not refer to the filing of the
PEOPLE OF THE PHILIPPINES and HONORABLE ALFREDO J. GUSTILO, petitioners,
motion after the expiration of the five-day period.
vs. COURT OF APPEALS and ESAM GADI y ABDULLAH, respondents.
Same; Same; Esam Gadi had the option or faculty of demanding preliminary
Criminal Procedure; Preliminary Investigation; Arrest without Warrant; Period for
investigation; if he wanted to exercise that option, however, he had to exercise it
filing a motion for preliminary investigation after an information has been filed
within the reglementary period. Upon expiration of that period, his option lapsed.
against an accused who was arrested without a warrant has characterized as
—This rule grants the accused a right or faculty and not an obligation. In the sense
mandatory.—The period for filing a motion for preliminary investigation after an
that he is not obliged to exercise this right, this rule is permissive only; in the
information has been filed against an accused who was arrested without a
sense that he may exercise this right only within the five-day period, the rule is
warrant has been characterized as mandatory by the Court. In People vs. Figueroa,
mandatory. Put a little differently, Esam Gadi had the option or faculty of
the Supreme Court applied Section 15, Rule 112 of the old Rules, which is
demanding preliminary investigation; if he wanted to exercise that option,
substantially reproduced in Section 7, Rule 112 of the 1985 Rules on Criminal
however, he had to exercise it within the reglementary period. Upon expiration of
Procedure. The Court held that Section 15 of old Rule 112 granted the accused the
that period, his option lapsed.
right to ask for preliminary investigation within a period of five (5) days from the
time he learned of the filing of the information. As the accused in that case did
not exercise his right within the five-day period, his motion for “reinvestigation”
Same; Same; Esam Gadi, accordingly, effectively waived his right to a preliminary
was denied.
investigation.—Hence, while the accused in Go was entitled to preliminary
investigation as a matter of right, Esam Gadi is not. His right to demand
preliminary investigation was subject to the condition that he should claim it
Same; Same; Section 7 of Rule 112 of the present rules gives the accused the right
seasonably. He did not do so. Esam Gadi, accordingly, effectively waived his right
to ask for preliminary investigation, but it does not give him the right to do so
to a preliminary investigation.
after the lapse of the five-day period.—Clearly, Section 7 of Rule 112 of the
present Rules gives the accused the right to ask for a preliminary investigation, but Same; Same; Denial of motion for preliminary investigation is also warranted by
it does not give him the right to do so after the lapse of the five-day period. This is the posting of a cash bail bond without previously or simultaneously demanding a
in accord with the intent of the Rules on Criminal Procedure to make preliminary preliminary investigation.—The denial of Esam Gadi’s motion for preliminary
investigation simple and speedy. investigation is also warranted by his posting of a cash bail bond without
previously or simultaneously demanding a preliminary investigation. In People vs.
Hubilo, an accused who had posted bail was deemed to have foregone his right to
Same; Same; The “opportunity” or “possibility” engendered by the use of the preliminary investigation. In the present case, Esam Gadi asked for and was
term “may” in this rule relates only to the option of filing a motion for preliminary granted bail on 10 January 1994, or one month before he asked for a preliminary
investigation, it does not refer to the filing of a motion after the expiration of the investigation on 9 February 1994. People vs.Court of Appeals, 242 SCRA 645, G.R.
five-day period.—While Tan and the cases there cited show that the use of the No. 116623 March 23, 1995
term “may” is indicative of an opportunity or possibility, they cannot be used to
support the proposition that the five-day period under Section 7 of Rule 112 is not
mandatory and may be disregarded at will. The “opportunity” or “possibility”

FELICIANO, J.:
Petitioners assail a Decision of the Court of Appeals which reversed the Regional
Trial Court, Branch 116, of Pasay City and granted the motion for reinvestigation of
private respondent Esam Gadi.
On 31 December 1993, Esam Gadi, a national of Saudi Arabia, was apprehended
at the Manila International Airport and subsequently detained for possession of
marijuana.
On 3 January 1994, an information was filed and docketed as Criminal Case No.
94-4820 in the Regional Trial Court, Branch 116, Pasay City charging Esam Gadi
with violation of Section 8, Article II, of the Dangerous Drugs Act, as amended.
Three (3) days later, on 6 January 1994, Esam Gadi filed an "Ex Parte Motion to
Reduce Bail," from P90,000.00 to P30,000.00. This Motion was denied. Esam Gadi
then posted a cash bond of P90,000.00 which was approved by the trial court on
10 January 1994.
On 9 February 1994, Esam Gadi filed a motion for "reinvestigation," 1 claiming
that the seriousness of the offense charged warranted the grant of his motion.
Admitting that this motion was filed beyond the five-day period prescribed in
Section 7, Rule 112 of the Rules of Court, 2 he contended that the reglementary
period was not mandatory. Section 7, Rule 112 of the Rules of Court provides:
"Sec. 7. When accused lawfully arrested without warrant. — When a person is
lawfully arrested without a warrant for an offense cognizable by the Regional Trial
Court, the complaint or information may be filed by the offended party, peace
officer or fiscal without a preliminary investigation having first been conducted, on
the basis of the affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information the person arrested
may ask for a preliminary investigation by a proper officer in accordance with this
rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his own choice. Notwithstanding
such waiver, he may apply for bail as provided in the corresponding rule and the
investigation must be terminated fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been
conducted, the accused may within five (5) days from the time he learns of the
filing of the information, ask for a preliminary investigation with the same right to
adduce evidence in his favor in the manner prescribed in this Rule." (Emphasis
supplied)
The motion for "reinvestigation" was denied by the trial court. A motion for
reconsideration was likewise turned down on 8 March 1994, the date of his
arraignment where Esam Gadi pleaded not guilty. He then challenged the denial
of his motion for "reinvestigation" in a petition for Certiorari before the Court of
Appeals.
The Court of Appeals granted the petition and reversed the trial court Order
denying investigation. Citing Tan vs. Securities Exchange Commission, 3 the Court
of Appeals held that the five-day period for asking reinvestigation was only
permissive, considering the use of the word "may." The appellate court also relied
on Go vs. Court of Appeals 4 and held that a motion for preliminary investigation
may be granted even if trial on the merits had begun, provided that the motion
was filed before arraignment.
In this Petition for Review, the Solicitor General contends that it is a mandatory
rule that a motion for preliminary investigation be filed within five (5) days from
the time the accused had learned of the filing of the information. It is also
maintained that Esam Gadi had waived his right to preliminary investigation when
he posted bail for his release.
Deliberating on the petition for Review and the Comment of private respondent,
the Court finds that the Court of Appeals fell into reversible error in granting the
motion for "reinvestigation" of private respondent.
The period for filing a motion for preliminary investigation after an information
has been filed against an accused who was arrested without a warrant has been
characterized as mandatory by the Court. In People vs. Figueroa, 5 the Supreme
Court applied Section 15, Rule 112 6 of the old Rules, which is substantially
reproduced in Section 7, Rule 112 of the 1985 Rules of Criminal Procedure. The inapplicable to the present case. In Shauf vs. Court of Appeals, 10 "may" was used
Court held that Section 15 of old Rule 112 granted the accused the right to ask for in a U.S. federal statute on equal opportunity for civilian employment in U.S.
preliminary investigation within a period of five (5) days from the time he learned military installations which enumerated the remedies of an aggrieved party.
of the filing of the information. As the accused in that case did not exercise his Holding that remedial statutes are to be construed liberally and that the term
right within the five-day period, his motion for "reinvestigation" was denied. 7 "may" as used in adjective rules was only permissive and not mandatory, our
Supreme Court held that the substantive remedies of a party were not limited to
Clearly, Section 7 of Rule 112 of the present Rules gives the accused the right to
those enumerated in that U.S. legislation. 11 In Legaspi vs. Estrella, 12 the Court
ask for a preliminary investigation but it does not give him the right to do so after
had to interpret "may" as used in Section 146 of Batas Pambansa Blg. 337 or the
the lapse of the five-day period. This is in accord with the intent of the Rules of
old Local Government Code. That term, being indicative of a "possibility" or an
Criminal Procedure to make preliminary investigation simple and speedy. The
"opportunity," was read as permissive rather than mandatory to avoid defeating
Supreme Court, elaborating on the rationale of the rules on preliminary
the purpose of the law immediately to include sectoral representatives in the
investigation, held:
legislative councils of local government units. 13
"The new Rules were drafted in the light of the Court's experience with cases
While Tan and the cases there cited show that the use of the term "may" is
where preliminary investigations had dragged on for weeks and even months. The
indicative of an opportunity or possibility, they cannot be used to support the
Court had intended to remove this clog upon the judicial machinery and to make a
proposition that the five-day period under section 7 of Rule 112 is not mandatory
preliminary investigation as simple and as speedy as is consistent with the
and may be disregarded at will. The "opportunity" or "possibility" engendered by
substantial rights of the accused. The investigation is advisedly preliminary, to be
the use of the term "may" in this rule relates only to the option of filing a motion
followed by the trial proper. The investigating judge or prosecuting officer acts
for preliminary investigation; it does not refer to the filing of the motion after the
upon probable cause and reasonable belief, not upon proof beyond reasonable
expiration of the five-day period. This rule grants the accused a right or faculty
doubt. The occasion is not for the full and exhaustive display of the parties'
and not an obligation. In the sense that he is not obliged to exercise this right, this
evidence; it is for the presentation of such evidence only as may engender well-
rule is permissive only; in the sense that he may exercise this right only within the
grounded belief that an offense has been committed and that the accused is
five-day period, the rule is mandatory. Put a little differently, Esam Gadi had the
probably guilty thereof . When all this is fulfilled, the accused will not be
option or faculty of demanding preliminary investigation; if he wanted to exercise
permitted to cast about for fancied reasons to delay the proceedings; the time to
that option, however, he had to exercise it within the reglementary period. Upon
ask for more is at the trial." 8 (Emphases supplied)
expiration of that period, his option lapsed.
The respondent Court of Appeals held, however, that the five-day period
Much the same situation obtains in respect of the period for filing a petition for
prescribed in Section 7, Rule 112 was not mandatory as the provision uses the
review. Section 1, Rule 45 of the Rules of Court provides that:
permissive term "may." As already noted, the Court of Appeals cited Tan vs.
Securities and Exchange Commission 9 where the Supreme Court held that the Sec. 1. Filing of petition with Supreme Court. — A party may appeal by Certiorari
term "may" as used in adjective rules is only permissive and not mandatory. from a judgment of the Court of Appeals, by filing with the Supreme Court a
petition for Certiorari within fifteen (15) days from notice of judgment or of the
Tan, however, does not really support a ruling that the five-day period for asking
denial of his motion for reconsideration filed in due time, and paying at the same
for preliminary investigation of a person accused of crime is only permissive. Tan
time, to the clerk of said court the corresponding docketing fee. The petition shall
was concerned with "may" as used in a provision of the Corporation Code dealing
not be acted upon without proof of service of a copy thereof to the Court of
with the transfer of shares of stock. Two (2) cases relied upon in Tan are equally
Appeals. (Emphasis supplied)

The use of "may" in Section 1 of Rule 45 refers only to the opportunity or option
to file a petition for review. This, however, does not give a party a license to file a
petition for review beyond the fifteen-day period. Hence, under Rule 45, Section
1, a petition for review filed after lapse of the fifteen-day period is not to be
entertained.
Innumerable petitions have been denied by the Court for having been filed
unseasonably.
The reliance of the Court of Appeals on the case of Rolito Go vs. Court of Appeals
14 is misplaced. In Go, as in the present case, an information was filed without a
prior preliminary investigation of the accused. The accused in both cases
demanded their right to a preliminary investigation before arraignment. The
similarity between the two (2) cases ends there. There are, upon the other hand,
critical differences in the fact situations in one and the other case which must not
be overlooked.
In Go, the accused asked for preliminary investigation on the very day the
information was filed. In the present case, Esam Gadi did so only on 9 February
1994, or a month after he had learned of the filing of the information against him.
In the present case, Esam Gadi insists on the application of Section 7, Rule 112 in
effect claiming or conceding there was a lawful warrantless arrest. It appears that
the accused was apprehended while engaged in the commission of an offense,
i.e., possession of marijuana punishable under Section 8, Article II of the
Dangerous Drugs Act, as amended. In Go, the Court relied on the general rule that
an information may be filed only after a preliminary investigation has been
conducted. The Court did not apply Section 7, Rule 112 because there had been
no arrest at all. The Court found that accused Rolito Go had merely walked into
the police station in the company of his two lawyers and placed himself at the
disposal of the police authorities. In fact, the Court did not consider his act as
surrender for the accused did not expressly declare that he was surrendering
himself, probably to avoid the implication that he was admitting his guilt.
Further, in Go, the Prosecutor had himself filed with the trial court a motion for
leave to conduct a preliminary investigation. This motion, along with the
application for bail, was in fact initially granted by the trial court. But the trial
court a few days later turned around and inexplicably changed its mind, cancelled
the bail, refused to accord preliminary investigation to the accused Go and the
trial began over the vehement protests of Go. The Court said:
Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a re-investigation (Crespo v. Mogul involved a re-
investigation), and since the Prosecutor himself did file with the trial court, on the
5th day after filing the information for murder, a motion for leave to conduct
preliminary investigation (attaching to his motion a copy of petitioner's omnibus
motion), we conclude that petitioner's omnibus motion was in effect filed with
the trial court. What was crystal clear was that petitioner did ask for a preliminary
investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised
of the desire of the petitioner for such preliminary investigation. Thus, even on
the (mistaken) supposition apparently made by the Prosecutor that Section 7 of
Rule 112 of the Revised Rules of Court was applicable, the 5-day reglementary
period on Section 7, Rule 112 must be held to have been substantially complied
with. 15 (Emphases supplied)
Hence, while the accused in Go was entitled to preliminary investigation as a
matter of right, Esam Gadi is not. His right to demand preliminary investigation
was subject to the condition that he should claim it seasonably. He did not do so.
Esam Gadi, accordingly, effectively waived his right to a preliminary investigation.
The denial of Esam Gadi's motion for preliminary investigation is also warranted
by his posting of a cash bail bond without previously or simultaneously
demanding a preliminary investigation. In People vs. Hubilo, 16 an accused who
had posted bail was deemed to have foregone his right to preliminary
investigation. In the present case, Esam Gadi asked for and was granted bail on 10
January 1994, or one month before he asked for a preliminary investigation on 9
February 1994. Once more, Esam Gadi in fact waived his right to preliminary
investigation.
In Go, in contrast, the accused had asked for preliminary investigation and the
right to post bail at the same time in one omnibus motion. Accordingly, the Court
held that the accused in Go had not waived his right to preliminary investigation:

"Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v. Selfaison
(110 Phil. 839 [1961]), we did not hold that appellants there had waived their
right to preliminary investigation because immediately after their arrest, they filed
bail and proceeded to trial "without previously claiming that they did not have the
benefit of a preliminary investigation." In the instant case, petitioner Go asked for
release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary investigation before
respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of
preliminary investigation on the part of petitioner. In fact, when the Prosecutor
filed a motion in court asking for leave to conduct preliminary investigation, he
clearly if impliedly recognized that petitioner's claim to preliminary investigation
was a legitimate one." 17 (Emphases partly in the original and partly supplied)

All in all, Esam Gadi's demand for preliminary investigation was an afterthought
merely.

WHEREFORE, the Petition for Review is hereby GRANTED and the assailed
Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Orders
of the Regional Trial Court, Branch 116 of Pasay City dated 14 February 1994 and 8
March 1994 are hereby REINSTATED and the Regional Trial Court is ORDERED to
proceed with the trial of Criminal Case No. 94-4820, with all deliberate dispatch.
Costs against private respondent.

Romero, Melo, Vitug and Francisco, JJ., concur.


2. G.R. No. 155451. April 14, 2004.*
PEOPLE OF THE PHILIPPINES, petitioner, vs. DAVID S. ODILAO, JR., respondent.
Criminal Procedure; Pursuant to Section 6 (a), Rule 112 of the Revised Rules of
Criminal Procedure, the judge of the trial court is mandated to personally evaluate
the resolution of the prosecutor and its supporting evidence to determine
whether probable cause exists and pursuant to its own findings, either dismiss the
case immediately if no probable cause exists, or to issue the warrant of arrest in
the absence of probable cause.—Pursuant to the aforequoted rule, the judge of
the trial court is mandated to personally evaluate the resolution of the prosecutor
and its supporting evidence to determine whether probable cause exists and
pursuant to its own findings, either dismiss the case immediately if no probable
cause exists, or to issue the warrant of arrest in the absence of probable cause.
Same; Trial court judge’s reliance on the prosecutor’s averment that the Secretary
of Justice had recommended the dismissal of the case against the petitioner was,
to say the least, an abdication of the trial court’s duty and jurisdiction to
determine a prima facie case.—Thus, in Perez vs. Hagonoy Rural Bank, Inc., the
Court held that the trial court judge’s “reliance on the prosecutor’s averment that
the Secretary of Justice had recommended the dismissal of the case against the
petitioner was, to say the least, an abdication of the trial court’s duty and
jurisdiction to determine a prima facie case, in blatant violation of this Court’s
pronouncement in Crespo vs. Mogul.
Same; Having found probable cause, the trial court acted well within its authority
in denying the motion to dismiss and also correct in ordering the implementation
of the previously issued warrant of arrest.—Evidently, when the trial court issued
the Orders dated May 21, 2002 and June 13, 2002, respectively, the trial court
judge was merely performing his mandated duty to personally determine the
existence of probable cause and thus arrive at a resolution of the motion to
dismiss. Having found probable cause, the trial court acted well within its
authority in denying said motion to dismiss and, since in the present case, a
warrant of arrest had already been issued and only the service thereof had been
countermanded, the trial court judge was also correct in ordering the
implementation of the previously issued warrant of arrest. People vs. Odilao, Jr.,
427 SCRA 622, G.R. No. 155451 April 14, 2004
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by the People of the
Philippines assailing the Decision[1] of the Court of Appeals dated September 27,
2002 in CA-G.R. SP No. 71198 which directed Judge Caminade of the Regional Trial
Court (RTC) of Cebu City (Branch 6), to defer the proceedings in Criminal Case No.
CBU-55283 until the petition for review of the reinvestigation report of the Office
of the City Prosecutor is resolved by the Department of Justice (DOJ).
The antecedent facts are as follows.
Herein respondent David S. Odilao, Jr. together with Enrique Samonte and Mario
Yares, was charged with Estafa in an Information[2] filed by the Asst. City
Prosecutor Feliciano with the RTC of Cebu City, to wit:
The undersigned Prosecutor I of Cebu City, accuses David Odilao, Jr., Enrique
Samonte and Mario Yares of the crime of ESTAFA, committed as follows:
That sometime during the latter part of 1997, and for sometime prior or
subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, conniving, confederating and mutually
helping with one another, having received in trust from Trans Eagle Corporation a
luxury car known as Jeep Cherokee Sport 4wd valued at P1,199,520.00 with the
agreement that they would sign the document of sale if they are interested to buy
the same and with the obligation to return the said car to Trans Eagle Corporation
if they are not interested, the said accused, once in possession of the said luxury
car, far from complying with their obligation, with deliberate intent, with intent to
gain, with unfaithfulness and grave abuse of confidence, did then and there
misappropriate, misapply and convert into their own personal use and benefit the
same or the amount of P1,199,520.00 which is the equivalent value thereof, and
inspite of repeated demands made upon them to let them comply with their
obligation to return the luxury car, they have failed and refused and instead
denied to have received the luxury car known as Jeep Cherokee Sport 4WD and up
to the present time still fail and refuse to do so, to the damage and prejudice of
Trans Eagle Corporation in the amount aforestated.
CONTRARY TO LAW.
A warrant of arrest against respondent was then issued by the Executive Judge.
Upon motion of respondent, the Executive Judge issued an Order[3] dated
September 28, 2000 directing the Office of the City Prosecutor to conduct
reinvestigation of the case with a caveat that the reinvestigation will be
terminated within ten days from receipt of the order and thereafter, submit
appropriate recommendation to it. In the meantime the Executive Judge
countermanded the service of the warrant of arrest.
Based on his reinvestigation report[4] dated October 17, 2000 which found no
probable cause, Asst. City Prosecutor Capacio filed with the trial court a Motion to
Dismiss[5] dated October 20, 2000. On October 27, 2000, private complainant
Carmen G. Bugash filed an urgent motion to disregard the reinvestigation report.
[6] On November 3, 2000, private complainant filed with the DOJ a petition for
review[7] seeking the reversal of the Reinvestigation Report. In an Order dated
October 30, 2000, the trial court deferred the arraignment until the petition for
review would have been finally resolved by the Department of Justice.[8] On
February 20, 2001, the trial court issued another order holding in abeyance the
resolution of the motion to dismiss until the DOJ shall have resolved the petition
for review.[9]
More than one year later, private complainant filed with the trial court on March
14, 2002, a Motion to Suspend Resolution of the Motion to Dismiss.[10]
Thereafter, the trial court, acting on the prosecutions motion to dismiss filed on
October 20, 2000 and private complainants motion to disregard the
reinvestigation report, issued an Order[11] dated May 21, 2002, (1) denying the
motion to dismiss; and (2) declaring the motion to disregard the reinvestigation
report to be moot and academic, rationalizing that [t]he Revised Rules of Criminal
Procedure which was approved on December 1, 2000 vests now authority to the
trial court to rule on the presence or absence of probable cause. If the Court finds
probable cause it will issue forthwith a warrant of arrest otherwise it will dismiss
the case. Respondent filed a motion for reconsideration[12] which was denied in
the Order[13] dated June 13, 2002 of the RTC which likewise directed the
implementation of the existing warrant of arrest against him.
Respondent went up to the Court of Appeals by filing a petition for certiorari and
prohibition,[14] docketed as CA-G.R. SP No. 91198, against the People of the
Philippines, Presiding Judge Caminade and private complainant Carmen Bugash.
On September 27, 2002, the Court of Appeals rendered a Decision[15] granting
the petition and directing the trial court to defer the proceedings until the petition
for review before the DOJ has been resolved.
Hence, the People of the Philippines filed the instant petition for review on
certiorari seeking the reversal of the Court of Appeals decision. Petitioner,
represented by the Office of the Solicitor General (OSG), claims:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT FINDING THAT
THE TRIAL COURT WAS JUSTIFIED IN RESOLVING THE MOTION TO DISMISS FILED
BY THE OFFICE OF THE CITY PROSECUTOR DESPITE THE PENDENCY OF A PETITION
FOR REVIEW BEFORE THE DEPARTMENT OF JUSTICE.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT FINDING THAT
THE TRIAL COURT WAS JUSTIFIED IN DIRECTING THE IMPLEMENTATION OF THE
WARRANT OF ARREST AFTER FINDING PROBABLE CAUSE.
III
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN GRANTING THE
INJUNCTION SOUGHT BY THE RESPONDENT WHICH ENJOINED THE TRIAL COURT
FROM IMPLEMENTING THE WARRANT OF ARREST AND FROM FURTHER
CONDUCTING PROCEEDINGS IN THE CASE UNTIL THE PETITION FOR REVIEW OF
THE REINVESTIGATION REPORT OF THE CITY PROSECUTOR IS RESOLVED BY THE
DEPARTMENT OF JUSTICE.
On December 11, 2002, we issued a Resolution[16] requiring respondent to file
his comment on the petition. In compliance therewith respondent filed his
Comment/Opposition to Petitioners Application for Temporary Restraining Order
and/or Writ of Preliminary Injunction,[17] which we duly noted. Respondent
alleges:
a. The Petition for Review on Certiorari filed by the Office of the Solicitor General,
and wherein the Application for Temporary Restraining Order and/or Writ of
Preliminary Injunction is incorporated, is fatally defective, hence both Petition and
Application should be dismissed and denied, respectively; and
b. Petitioner-applicant failed to adequately and sufficiently show that it is entitled
to the issuance of the temporary restraining order and/or writ of preliminary
injunction, while on the other hand, it is undeniable that the issuance of the
temporary restraining order and/or writ of preliminary injunction would
undeniably cause irreparable damage to the person and rights of herein
respondent.
Unknown to us, however, while herein petition was pending our resolution,
private complainant Bugash filed a motion for reconsideration before the Court of
Appeals, seeking reversal of its Decision dated September 27, 2002. The Court of
Appeals granted private complainants motion for reconsideration per its
Resolution dated June 12, 2003, thereby reversing its own Decision dated
September 27, 2002. In said Resolution, the Court of Appeals ruled that the trial
courts Orders dated May 21, 2002 and June 13, 2002, denying the prosecutions
motion to dismiss together with the implementation of the warrant of arrest
against herein respondent is valid, pursuant to Section 11, Rule 116 of the Revised
Rules of Criminal Procedure which provides that the suspension of arraignment
shall not be more than sixty days from the filing of the petition for review of the
resolution of the prosecutor.
It should be emphasized that the Resolution of June 12, 2003 was issued by the
Court of Appeals despite the pendency of the petition for review on certiorari
before us. We were only apprised of such development when respondent
furnished us with a copy of his Very Urgent Motion for Reconsideration[18] filed
with the Court of Appeals, where he sought reconsideration of its Resolution
dated June 12, 2003. The records do not show whether the Court of Appeals had
resolved said motion.
Respondent likewise filed with us an Urgent Manifestation[19] dated June 16,
2003, informing us that the DOJ, acting on private complainant Carmen Bugashs
petition for review, has issued a Resolution[20] dated May 27, 2003, denying the
petition for review; in effect, sustaining the filing of the motion to dismiss by the
Assistant City Prosecutor.
Meanwhile, on October 6, 2003, we received petitioners Consolidated Reply and
Comment,[21] praying that the Resolution of the Court of Appeals dated June 12,
2003, finding the trial courts Orders to be valid, be affirmed and that a temporary
restraining order and/or preliminary injunction be issued to restrain respondent
and any person acting in his behalf from implementing the Court of Appeals
decision dated September 27, 2002 which directed the trial court to defer the
proceedings before it until the DOJ shall have resolved the petition for review filed
before the DOJ.
The main issue brought before us is whether or not the trial court was correct in
denying the prosecutions motion to dismiss the estafa case and ordering the
implementation of the warrant of arrest against herein respondent.
The petition is impressed with merit.
First, let us dispose of respondents argument that the petition should be
dismissed for failure to comply with the requirements of a proper verification and
proof of service; and that the petition was prematurely filed because it was filed
even before we issued a resolution granting the motion for extension of time to
file the petition.
With regard to the verification, we are convinced that the verification/certification
appearing in the petition for review, although referring to a motion for extension
to file is a valid verification/certification of the petition for review. The phrase
motion for extension to file was merely a typographical error committed through
sheer inadvertence.
As to the requirement of attaching an affidavit of service to the petition, a perusal
of the rollo of this case will readily show that such an affidavit of service had been
attached to the petition.[22]
Moreover, the OSG may not be faulted in filing the petition for review before its
receipt of our Resolution dated November 25, 2002 granting the motion for
extension of time. Had petitioner waited to receive a resolution granting its
motion for extension before filing the petition, the extended period for filing
would have, by then, expired. Thus, there was nothing irregular with the
procedure taken by petitioner, rather, such was the most prudent thing for it to
have done.
We now come to the crux of the petition.
Section 6 (a), Rule 112 of the Revised Rules of Criminal Procedure, which took
effect on December 1, 2000, provides thus:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within
ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence.
He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause. If he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has already been arrested pursuant
to a warrant issued by the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to section 7 of this Rule. In
case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the filing of the
complaint or information.
Pursuant to the aforequoted rule, the judge of the trial court is mandated to
personally evaluate the resolution of the prosecutor and its supporting evidence
to determine whether probable cause exists and pursuant to its own findings,
either dismiss the case immediately if no probable cause exists, or to issue the
warrant of arrest in the absence of probable cause.
Even before the effectivity of the aforequoted rule, the Court enunciated the
following ruling in Crespo vs. Mogul,[23] to wit:
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution of the
accused is terminated upon the filing of the information in the proper court. In
turn, as above stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be
secured. After such reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While it is true that the
fiscal has the quasi judicial discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case thereafter
should be addressed for the consideration of the Court. The only qualification is
that the action of the Court must not impair the substantial rights of the accused
or the right of the People to due process of law.
Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a
motion to dismiss was submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss
filed by the fiscal upon the directive of the Secretary of Justice will there not be a
vacuum in the prosecution? . . .
The answer is simple. The role of the fiscal or prosecutor as We all know is to see
that justice is done and not necessarily to secure the conviction of the person
accused before the Courts. Thus, in spite of his opinion to the contrary, it is the
duty of the fiscal to proceed with the presentation of evidence of the prosecution
to the Court to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. . . .
The rule therefore in this jurisdiction is that once a complaint or information is
filed in Court any disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of the Court. Although the
fiscal retains the direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. The
determination of the case is within its exclusive jurisdiction and competence. A
motion to dismiss the case filed by the fiscal should be addressed to the Court
who has the option to grant or deny the same. It does not matter if this is done
before or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed the
records of the investigation.
Thus, in Perez vs. Hagonoy Rural Bank, Inc.,[24] the Court held that the trial court
judges reliance on the prosecutors averment that the Secretary of Justice had
recommended the dismissal of the case against the petitioner was, to say the
least, an abdication of the trial courts duty and jurisdiction to determine a prima
facie case, in blatant violation of this Courts pronouncement in Crespo vs.
Mogul . . . This was reiterated in Solar Team Entertainment, Inc. vs. Hon. Rolando
How,[25] where the Court held thus:
It bears stressing that the court is however not bound to adopt the resolution of
the Secretary of Justice since the court is mandated to independently evaluate or
assess the merits of the case, and may either agree or disagree with the
recommendation of the Secretary of Justice. Reliance alone on the resolution of
the Secretary of Justice would be an abdication of the trial courts duty and
jurisdiction to determine prima facie case.
Evidently, when the trial court issued the Orders dated May 21, 2002 and June 13,
2002, respectively, the trial court judge was merely performing his mandated duty
to personally determine the existence of probable cause and thus arrive at a
resolution of the motion to dismiss. Having found probable cause, the trial court
acted well within its authority in denying said motion to dismiss and, since in the
present case, a warrant of arrest had already been issued and only the service
thereof had been countermanded, the trial court judge was also correct in
ordering the implementation of the previously issued warrant of arrest.
Verily, the proceedings in the criminal case pending in the trial court had been
held in abeyance long enough. Under Section 11, Rule 116 of the Revised Rules of
Criminal Procedure, the suspension of arraignment of an accused in cases where a
petition for review of the resolution of the prosecutor is pending at either the
Department of Justice or the Office of the President shall not exceed sixty days
counted from the filing of the petition with the reviewing office. Although in this
case, at the time that the trial court deferred the arraignment in its Order dated
October 30, 2000, the Revised Rules of Criminal Procedure had not yet taken
effect and there was as yet no prescribed period of time for the suspension of
arraignment, we believe that the period of one and a half years from October 30,
2000 to June 13, 2002, when the trial court ordered the implementation of the
warrant of arrest, was more than ample time to give private complainant the
opportunity to obtain a resolution of her petition for review from the DOJ. Indeed,
with more than three years having elapsed, it is now high time for the
continuation of the trial on the merits in the criminal case below as the sixty-day
period counted from the filing of the petition for review with the DOJ, provided
for in Section 11, Rule 116 of the Revised Rules of Criminal Procedure now
applicable to the case at bar, had long lapsed.
Although it is clear that the Court of Appeals earlier erred in granting the petition
for certiorari and prohibition filed before it by herein respondent, the Court of
Appeals remedied such error by reversing its Decision dated September 27, 2002
in its Resolution dated June 12, 2003, and sustained the trial courts Orders dated
May 21, 2002 and June 13, 2002 denying the prosecutions motion to dismiss.
However, it cannot be avoided that we remind the Court of Appeals of the
provisions of Section 15, Rule VI of the 2002 Internal Rules of the Court of Appeals
(effective August 22, 2002), which explicitly provides thus:
SEC. 15. Effect of Filing an Appeal in the Supreme Court. - No motion for
reconsideration or rehearing shall be acted upon if the movant has previously
filed in the Supreme Court a petition for review on certiorari or a motion for
extension of time to file such petition. If such petition or motion is subsequently
filed, the motion for reconsideration pending in this Court shall be deemed
abandoned.
We are, therefore, quite perplexed why the Court of Appeals did not act in accord
with the aforequoted Rule and instead resolved the motion for reconsideration of
its Decision dated September 27, 2002, filed by private complainant, despite
service on it of a copy of the Motion For Extension To File Petition For Review
dated October 15, 2002, filed by the OSG.
At the very least, prudence dictates that the Court of Appeals should have first
required private complainant to secure the conformity of the OSG; or required the
latter to comment on the motion for reconsideration of the private complainant.
The positions taken by the Office of the Solicitor General and private complainant
Bugash are practically identical.

In any event, the Court of Appeals ought not to have acted on the said motion for
reconsideration of private complainant Bugash. It should have considered said
motion which, in the first place, was without the conformity of the OSG, the
representative of petitioner People of the Philippines, as having been abandoned
by the filing of herein petition by the OSG, pursuant to the aforequoted Section
15, Rule VI of the 2002 Internal Rules of the Court of Appeals.

Nevertheless, in the interest of speedy and orderly administration of justice, we

deem it expedient to uphold in the present petition, the Orders dated May 21,
2002 and June 13, 2002, of the RTC denying the motion to dismiss of the assistant
city prosecutor and directing the implementation of the warrant of arrest against
respondent, for being in accordance with our rulings in Crespo vs. Mogul, Perez
vs. Hagonoy Rural Bank, Inc. and Solar Team Entertainment, Inc. vs. Hon. Rolando
How, as we have discussed in the early part of our decision.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision dated

September 27, 2002 is REVERSED and SET ASIDE. Its Resolution dated June 12,
2003 correcting its own error is AFFIRMED with ADMONITION that the Court of
Appeals should act with more circumspection and comply with its 2002 Internal
Rules.

The Orders dated May 21, 2002 and June 23, 2002 of the Regional Trial Court of
Cebu City (Branch 6) are AFFIRMED and the said Regional Trial Court is directed to
proceed, with immediate dispatch, with the arraignment of herein respondent
and trial on the merits of Criminal Case No. CBU-55283.

SO ORDERED.

Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.


3. G.R. No. 127107. October 12, 1998.* Dimatulac vs. Villon, 297 SCRA 679,
G.R. No. 127107 October 12, 1998
PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners, vs. HON.
SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court
of Pampanga, Branch 54; HON. TEOFISTO GUINGONA, in his capacity as
Secretary of Justice; MAYOR SANTIAGO YABUT, SERVILLANO YABUT, MARTIN
YABUT and FORTUNATO MALLARI, respondents.
Criminal Procedure; Appeals; Department of Justice Order No. 223 recognizes the
right of both the offended parties and the accused to appeal from resolutions in
preliminary investigations or reinvestigations.—DOJ Order No. 223 of 30 June
1993 recognizes the right of both the offended parties and the accused to appeal
from resolutions in preliminary investigations or reinvestigations.
Same; Same; Nothing in the ruling in Crespo v. Mogul, reiterated in Roberts v.
Court of Appeals, forecloses the power or authority of the Secretary of Justice to
review resolutions of his subordinates incriminal cases despite an information
already having been filed in court.—The underlined portion indisputably shows
that the section refers to appeals by respondents or accused. So we held in
Marcelo v. Court of Appeals that nothing in the ruling in Crespo v. Mogul,
reiterated in Roberts v. Court of Appeals, forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in criminal cases
despite an information already having been filed in court. The Secretary of Justice
is only enjoined to refrain, as far as practicable, from entertaining a petition for
review or appeal from the action of the prosecutor once a complaint or
information is filed in court. In any case, the grant of a motion to dismiss, which
the prosecution may file after the Secretary of Justice reverses an appealed
resolution, is subject to the discretion of the court. In Roberts we went further by
saying that Crespo could not have foreclosed said power or authority of the
Secretary of Justice “without doing violence to, or repealing, the last paragraph of
Section 4, Rule 112 of the Rules of Court” which is quoted above.
Same; To hold that arraignment is a prerequisite to the issuance of a hold
departure order could obviously defeat the purpose of said order.—As to the
second issue, we likewise hold that Judge Roura acted with grave abuse of
discretion when, in his order of 26 March 1996, he deferred resolution on the
motion for a hold departure order until “such time that all the accused who are
out on bail are arraigned” and denied the motion to defer proceedings for the
reason that the “private prosecution has not shown any indication that [the]
appeal was given due course by the Secretary of Justice.” Neither rhyme nor
reason or even logic, supports the ground for the deferment of the first motion.
Precisely, immediate action thereon was called for as the accused were out on bail
and, perforce, had all the opportunity to leave the country if they wanted to. To
hold that arraignment is a prerequisite to the issuance of a hold departure order
could obviously defeat the purpose of said order.
Same; Fiscals; Prosecutors are the representatives not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest in a criminal
prosecution is not that it shall win every case but that justice be done.—
Prosecutors must never forget that, in the language of Suarez v. Platon, they are
the representatives not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win every case but that justice be done. As such, they are in a peculiar and every
definite sense the servants of the law, whose two-fold aim is that guilt shall not
escape or innocence suffer.
Same; Judges; The judge “should always be imbued with a high sense of duty and
responsibility in the discharge of his obligation to promptly and properly
administer justice."—The judge, on the other hand, “should always be imbued
with a high sense of duty and responsibility in the discharge of his obligation to
promptly and properly administer justice.” He must view himself as a priest, for
the administration of justice is akin to a religious crusade. Thus, exerting the same
devotion as a priest “in the performance of the most sacred ceremonies of
religious liturgy,” the judge must render service with impartiality commensurate
with the public trust and confidence reposed in him. Although the determination
of a criminal case before a judge lies within his exclusive jurisdiction and
competence, his discretion is not unfettered, but rather must be exercised within
reasonable confines. The judge’s action must not impair the substantial rights of
the accused, nor the right of the State and offended party to due process of law.
Same; When the State is deprived of due process in a criminal case by reason of
grave abuse of discretion on the part of the trial court, the acquittal of the
accused or the dismissal of the case is void, hence double jeopardy cannot be
invoked by the accused.—It is settled that when the State is deprived of due
process in a criminal case by reason of grave abuse of discretion on the part of the
trial court, the acquittal of the accused or the dismissal of the case is void, hence
double jeopardy cannot be invoked by the accused. If this is so in those cases, so
must it be where the arraignment and plea of not guilty are void, as in this case as
above discussed. Dimatulac vs. Villon, 297 SCRA 679, G.R. No. 127107 October 12,
1998
DAVIDE, JR., J.:
The issues raised by petitioners in their Memorandum[1] and by the Office of the
Solicitor General in its Comment[2] in this special civil action for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court filed by
petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of
Masantol, Pampanga, may be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED GRAVE
ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR
REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF
ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE
CUSTODY OF THE LAW; and (2) FILING THE INFORMATION FOR HOMICIDE DESPITE
KNOWLEDGE OF THE APPEAL FROM SAID PROSECUTORS RESOLUTION TO THE
OFFICE OF THE SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION IN
PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS MOTIONS
TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE HIS
KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL
EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE WAS COMMITTED BY
THE ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED GRAVE
ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT THE CRIME
COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL PROSECUTOR TO
AMEND THE INFORMATION FROM HOMICIDE TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in
Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal
Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by
SPO1 Renato Layug of the Masantol Police Station against private respondents
Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino
Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato
Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano
Magnaye, Vladimir Yumul, a certain Danny, and a certain Koyang/Arding. The
complaint was docketed as Criminal Case No. 95-360. After conducting a
preliminary examination in the form of searching questions and answers, and
finding probable cause, Judge Designate Serafin B. David of the MCTC issued
warrants for the arrest of the accused and directed them to file their counter-
affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao
were arrested; while only Francisco Yambao submitted his counter affidavit.[3]
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution[4] in Criminal Case No. 95-360 finding reasonable ground to believe
that the crime of murder had been committed and that the accused were
probably guilty thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the leadership of
Mayor Santiago Docsay Yabut, including two John Does identified only as
Dan/Danny and Koyang/Arding, went to Masantol, Pampanga for the purpose of
looking for a certain PO3 Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of
Masantol, Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they
went to the house of Mayor Lacap for the purpose of inquiring [about] the [the
location of the] house of PO3 Virgilio Dimatulac, until finally, they were able to
reach the house of said Virgilio Dimatulac at San Nicolas, Masantol, Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all
riding, stopped and parked in front of the house of said PO3 Virgilio Dimatulac,
some of the accused descended from the truck and positioned themselves around
the house while others stood by the truck and the Mayor stayed [in] the truck
with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao went inside the house of
Virgilio Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac
to go down to see the Mayor outside in front of his house to say sorry.
[W]hen Virgilio Dimatulac went down from his house, suddenly [a] gun shot was
heard and then, the son of Virgilio Dimatulac, Peter Paul, started to shout the
following words: What did you do to my father?!
One of the men of Mayor Docsay Yabut shot Virgilio Dimatulac, and as a
consequence, he died; and before he expired, he left a dying declaration pointing
to the group of Mayor Docsay Yabut as the one responsible.
That right after Virgilio Dimatulac was shot, accused Docsay Yabut ordered his
men to go on board the truck and immediately left away leaving Virgilio Dimatulac
bleeding and asking for help.
On their way home to Minalin, accused Santiago Docsay Yabut gave money to
accused John Doe Dan/Danny and Francisco Boy Yambao was asked to bring the
accused John Doe to Nueva Ecija which he did.
Further, accused Santiago Docsay Yabut told his group to deny that they ever went
to Masantol.
The court, after having conducted preliminary examination on the complainant
and the witnesses presented, [is] satisfied that there is a [sic] reasonable ground
to believe that the crime of murder was committed and that the accused in
conspiring and confederating with one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were issued
against Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino
David, Casti David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda
and Juan Magat with no bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding, the court
directed the police authorities to furnish the court [a] descriptio personae of the
accused for the purpose of issuing the needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of witnesses
for them to file their counter-affidavits in accordance to [sic] law.
As of this date, only accused Francisco Boy Yambao filed his counter-affidavit and
all the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco Yambao
which the court finds it [sic] straightforward and more or less credible and seems
to be consistent with truth, human nature and [the] natural course of things and
lack of motives [sic], the evidence of guilt against him is rather weak [compared
to] the others, which [is why] the court recommends a cash bond of P50,000.00
for his provisional liberty, and the courts previous order of no bail for said accused
is hereby reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed to forward the
entire records of the case to the Office of the Provincial Prosecutor of Pampanga
for further action, together with the bodies of accused Francisco Yambao and Juan
Magat to be remanded to the provincial Jail of Pampanga.[5] (underscoring
supplied)
In a sworn statement,[6] petitioner Peter Paul Dimatulac narrated that Mayor
Santiago Yabut, accompanied by a number of bodyguards, went to the residence
of PO3 Virgilio Dimatulac to talk about a problem between the Mayor and Peter
Pauls uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even
prepared coffee for them. Servillano and Martin Yabut told Virgilio to come down
from his house and apologize to the Mayor, but hardly had Virgilio descended
when Peter Paul heard a gunshot. While Peter Paul did not see who fired the shot,
he was sure it was one of Mayor Yabuts companions. Peter Paul opined that his
father was killed because the latter spoke to the people of Minalin, Pampanga,
against the Mayor. Peter Paul added in a supplemental statement (Susog na
Salaysay)[7] that he heard Mayor Yabut order Virgilio killed.
In his Sinumpaang Salaysay,[8] Police Officer Leopoldo Soriano of the Masantol
Municipal Police Station in Masantol, Pampanga, declared that on 3 November
1995, between 3:30 and 4:00 p.m., while he was at the police station, three men
approached him and asked for directions to the house of Mayor Epifanio Lacap.
Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin,
Pampanga. The group left after Soriano gave them directions, but one of the three
returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano
replied that Dimatulac was at home. The group left on board a military truck
headed for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray
received a telephone call at the police station reporting that someone had shot
Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores
conducted a reinvestigation. However, it is not clear from the record whether she
conducted the same motu proprio or upon motion of private respondents
Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the
accused who had not submitted their counter-affidavits before the MCTC, except
accused Danny and Koyang/Arding, submitted their counter-affidavits to Assistant
Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996,[9] Assistant Provincial Prosecutor
Alfonso-Flores found that the YABUTs and the assailant Danny, to the exclusion of
the other accused, were in conspiracy with one another, but that the offense
committed was only homicide, not murder. In support of such finding, Alfonso-
Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified by treachery.
It must be noted that to constitute treachery, two conditions must be present, to
wit, 1) the employment of the [sic] means of execution were give [sic] the person
attacked no opportunity to defend himself or to retaliate; and 2) the means of
execution were deliberately or consciously adopted xxx.
In the instant case, the presence of the first requisite was clearly established by
the evidence, such that the attack upon the victim while descending the stairs was
so sudden and unexpected as to render him no opportunity to defend himself or
to retaliate. However, the circumstances, as portrayed by witness Peter Paul
Dimatulac, negate the presence of the second requisite. According to the said
witness, the victim was already descending when Mayor Yabut commanded the
assailant to shoot him, and immediately thereafter, he heard the gunshot. This
would therefore show that the assailant did not consciously adopt the position of
the victim at the time he fired the fatal shot. The command of Mayor Yabut to
shoot came so sudden as to afford no opportunity for the assailant to choose the
means or method of attack. The act of Mayor Yabut in giving the command to
shoot further bolster[s] the fact that the conspirator did not concert the means
and method of attack nor the manner thereof. Otherwise there would have been
no necessity for him to give the order to the assailant. The method and manner of
attack was adopted by the assailant at the spur of the moment and the vulnerable
position of the victim was not deliberately and consciously adopted. Treachery
therefore could not be appreciated and the crime reasonably believe[d] to have
been committed is Homicide as no circumstance would qualify the killing to
murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:

1. An information be filed with the proper court charging Santiago, Servillano and
Martin all surnamed Yabut, and one John Doe alias Danny as conspirators in the
crime of Homicide;
2. The case be dismissed against accused Evelino David, Justino Mandap a.k.a.
Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir Dimatulac,
Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela Cruz and
Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January
1996 and clarificatory questions were propounded only to Peter Paul Dimatulac.
On 23 February 1996, before the Information for homicide was filed,
complainants, herein petitioners, appealed the resolution of Alfonso-Flores to the
Secretary of the Department of Justice (DOJ).[10] They alleged in their appeal
that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING THAT
THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT LIKEWISE
ERRED IN NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING
CIRCUMSTANCES, TO WIT:
A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF ARMED MEN
AND WITH THE USE OF A PERSON TO INSURE OR AFFORD IMPUNITY;
B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A PRICE, REWARD,
OR PROMISE;
C. THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A DESTRUCTIVE
CYCLONE, WHEN THE SUPER-TYPHOON ROSING WAS RAGING ON NOVEMBER 3,
1995;
D. THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN
DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO
YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST
FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO AS AN
ACCESSORY TO MURDER.
To refute Alfonso-Flores finding that the means of execution were not deliberately
adopted, petitioners asserted that the meeting of the accused and the victim was
not accidental as the former purposely searched for the victim at the height of a
typhoon, while accused Mayor Santiago Yabut even remarked to his co-accused
Danny, Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na (Just
stay close to him, you know what to do). Thus, Danny positioned himself near the
stairs to goad the victim to come out of his house, while Fortunato Mallari
represented to the deceased that the latter was being invited by a certain General
Ventura. When the victim declined the invitation by claiming he was sick, accused
Servillano Yabut persuaded the victim to come down by saying, [T]o settle this
matter, just apologize to the Mayor who is in the truck. In view of that enticement,
the victim came down, while Danny waited in ambush. To emphasize the accuseds
resolve to kill the deceased, petitioners further narrated that when the deceased
ran away after the first shot, the gunman still pursued him, while Mayor Santiago
Yabut, who was a doctor, kept away at a safe distance and told everyone in the
truck, Tama na, bilisan ninyo, (Thats enough, move quickly) without giving medical
assistance to the deceased and without exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of
the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a
Resolution[11] ordering the release of accused Evelino David, Justino Mandap,
Juan Magat and Arturo Naguit (who were then detained) in view of the
aforementioned resolution of Alfonso-Flores, which, as stated in the order, the
Provincial Prosecutor approved on February 7, 1996.
On 28 February 1996, an Information[12] for Homicide, signed by Assistant
Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was
filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga,
against the YABUTs and John Doe alias Danny Manalili and docketed as Criminal
Case No. 96-1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of Masantol,
province of Pampanga, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and
mutually helping one another, with deliberate intent to take the life of PO3 Virgilio
A. Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said
PO3 Virgilio A. Dimatulac on his abdomen with the use of a handgun, thereby
inflicting upon him a gunshot wound which cause[d] the death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on 2/27/96, i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55,
approved the cash bonds of the YABUTs, each in the amount of P20,000.00, and
recalled the warrants for their arrest.[13]
On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as
private prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue
Hold Departure Order Against All Accuseds[14] [sic]; and an (2) Urgent Motion to
Defer Proceedings,[15] copies of which were furnished the Office of the Provincial
Prosecutor of Pampanga. The second motion was grounded on the pendency of
the appeal before the Secretary of Justice and a copy thereof was attached to the
motion. Judge Roura set the motions for hearing on 8 March 1996.[16]
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused,
Danny Manalili.[17]
On 8 March 1996, the YABUTs filed their opposition[18] to the Motion to Issue
Hold Departure Order and the Motion to Defer Proceedings. The YABUTs asserted
that, as to the first, by posting bail bonds, they submitted to the jurisdiction of the
trial court and were bound by the condition therein to surrender themselves
whenever so required by the court, and to seek permission from the court should
any one of them desire to travel; and, as to the second, the pendency of the
appeal before the Secretary of Justice was not a ground to defer arraignment;
moreover, the trial court had to consider their right to a speedy trial, especially
since there was no definite date for the resolution of the appeal. Then invoking
this Courts rulings in Crespo v. Mogul[19] and Balgos v. Sandiganbayan,[20] the
YABUTs further asserted that petitioners should have filed a motion to defer the
filing of the information for homicide with the Office of the Provincial Prosecutor,
or sought, from the Secretary of Justice, an order directing the Provincial
Prosecutor to defer the filing of the information in court.
In a Reply[21] to the opposition, the private prosecution, citing Section 20 of Rule
114 of the Rules of Court, insisted on the need for a hold-departure order against
the accused; argued that the accuseds right to a speedy trial would not be
impaired because the appeal to the Secretary of Justice was filed pursuant to
Department Order No. 223 of the DOJ and there was clear and convincing proof
that the killing was committed with treachery and other qualifying circumstances
not absorbed in treachery; and contended that the accuseds invocation of the
right to a speedy trial was inconsistent with their filing of various dilatory motions
during the preliminary investigation. The YABUTs filed a Rejoinder[22] to this
Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold
Departure Order until such time that all the accused who are out on bail are
arraigned, but denied the Motion to Defer Proceedings as he found no compelling
reason therefor, considering that although the appeal was filed on 23 February
1996, the private prosecution has not shown any indication that [the] appeal was
given due course by the Secretary of Justice. Judge Roura also set the arraignment
of the accused on 12 April 1996.[23]
It would appear that the private prosecution moved to reconsider the order
denying the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura
issued an Order[24] giving the private prosecutor ten (10) days from today within
which to file a petition for certiorari questioning the order of the Court denying
his motion for reconsideration of the order of March 26, 1996. Arraignment was
then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura[25] from
hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set the
case for arraignment while the formers appeal in the DOJ was still pending
evaluation; and (b) prejudged the matter, having remarked in open court that
there was nothing in the records of the case that would qualify the case into
Murder. At the same time, petitioners filed a petition for prohibition[26] with the
Court of Appeals docketed therein as CA-G.R. SP No. 40393, to enjoin Judge Roura
from proceeding with the arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and
Comment[27] with the trial court wherein he opposed the motion to inhibit Judge
Roura; manifested that there is nothing in the record which shows that the
subject killing is qualified into murder; and announced that he will no longer allow
the private prosecutor to participate or handle the prosecution of [the] case in
view of the latters petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case
transferred to Branch 54 of the RTC, presided over by herein public respondent
Judge Sesinando Villon.[28]
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the
record of Criminal Case No. 96-1667(M).[29]
On 30 April 1996, petitioners filed with the trial court a Manifestation[30]
submitting, in connection with their Motion to Defer Proceedings and Motion to
Inhibit Judge Roura, documentary evidence to support their contention that the
offense committed was murder, not homicide. The documents which they claimed
were not earlier submitted by the public prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.
g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal
Case No. 95-360, containing the testimony of:
a. Peter Paul Dimatulac
b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan
d. PO3 Alfonso Canilao
h. Investigation Report- dated November 4, 1995.
i. Dying declaration of Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No.
40393, a Resolution[31] directing respondent therein to file his comment to the
petition within ten days from notice and to show cause within the same period
why no writ of preliminary injunction should be issued as prayed for in the
petition. However, the Court of Appeals deferred action on the prayer for a
temporary restraining order until after the required comment [was] submitted.
On 3 May 1996, petitioners filed an Ex-Parte Manifestation[32] with the RTC,
furnishing the trial court with a copy of the aforementioned resolution of the
Court of Appeals and drawing the attention of the trial court to the rulings of this
Court in Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and
Eternal Gardens Memorial Park Corp. vs. Court of Appeals as well as the decision
in Paul G. Roberts vs. The Court of Appeals.
On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused
to 20 May 1996.[33] On the latter date, the YABUTs each entered a plea of not
guilty.[34]
Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an
Urgent Motion to Set Aside Arraignment,[35] citing the resolution of 30 April 996
of the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia, deferred
resolution on the application for a temporary restraining order until after the
required comment is submitted by the respondent; stressed that the filing of the
information for the lesser offense of homicide was clearly unjust and contrary to
law in view of the unquestionable attendance of circumstances qualifying the
killing to murder; and asserted that a number of Supreme Court decisions
supported suspension of the proceedings in view of the pendency of their appeal
before the DOJ.
On 31 May 1997, Judge Villon issued an Order[36] directing the accused to file
their comment on the Urgent Motion to Set Aside Arraignment within fifteen days
from notice.
In a letter[37] addressed to the Provincial Prosecutor dated 7 June 1996, public
respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of
petitioners. Secretary Guingona ruled that treachery was present and directed the
Provincial Prosecutor of San Fernando, Pampanga to amend the information filed
against the accused from homicide to murder, and to include Fortunato Mallari as
accused in the amended information. The findings and conclusions of Secretary
Guingona read as follows:
Contrary to your findings, we find that there is treachery that attended the killing
of PO3 Dimatulac. Undisputedly, the victim was suddenly shot while he was
descending the stairs. The attack was unexpected as the victim was unarmed and
on his way to make peace with Mayor Yabut, he was unsuspecting so to speak.
From the circumstances surrounding his killing, PO3 Dimatulac was indeed
deprived of an opportunity to defend himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was consciously and
deliberately adopted by the respondents to ensure the accomplishment of their
criminal objective. The admission of respondent Malabanan is replete with details
on how the principal respondent, Mayor Yabut, in conspiracy with the assailant
and others, had consciously and deliberately adopted means to ensure the
execution of the crime. According to him, while they were on their way to the
victims house, Mayor Yabut already instructed Danny, the assailant, that, Dikitan
mo lang, alam no na king ano ang gagawin mo, bahala ka na. This explains why
Danny positioned himself near the stairs of the victims house armed with a
handgun, such positioning was precisely adopted as a means to ensure the
accomplishment of their evil design and Mayor Yabut ordered nobody else but
Danny to shoot the victim while descending the stairs as his position was very
strategic to ensure the killing of the victim.
As has been repeatedly held, to constitute treachery, two conditions must be
present, to wit: (1) employment of means of execution that gives the person
[attacked] no opportunity to defend himself or retaliate; and (2) the means of
execution were deliberately or consciously adopted (People vs. Talaver, 230 SCRA
281 [1994]). In the case at bar, these two (2) requisites are present as established
from the foregoing discussion. Hence, there being a qualifying circumstance of
treachery, the crime committed herein is murder, not homicide (People vs.
Gapasin, 231 SCRA 728 [1994]).
Anent the alleged participation of respondents Fortunato Mallari and Francisco
Yambao, we find sufficient evidence against Mallari as part of the conspiracy but
not against Yambao. As can be gleaned from the sworn-statement of Yambao,
which appears to be credible, Mallari tried also to persuade the victim to go with
them, using as a reason that he (victim) was being invited by General Ventura. He
was also seen trying to fix the gun which was used in killing the victim. These
actuations are inconsistent with the claim that his presence at the crime scene
was merely passive.
On the other hand, we find credible the version and explanation of Yambao.
Indeed, under the obtaining circumstances, Yambao had no other option but to
accede to the request of Mayor Yabut to provide transportation to the assailant.
There being an actual danger to his life then, and having acted under the impulse
of an uncontrollable fear, reason dictates that he should be freed from criminal
liability.[38]
The YABUTs moved to reconsider the resolution,[39] citing Section 4 of
Administrative/Administration Order No. 223 of the DOJ.[40]
In an Ex-Parte Manifestation[41] dated 21 June 1996, petitioners called the trial
courts attention to the resolution of the Secretary of Justice, a copy of which was
attached thereto. Later, in a Manifestation and Motion[42] dated 1 July 1996,
petitioners asked the trial court to grant their motion to set aside arraignment.
Attached thereto was a copy of the Manifestation and Motion[43] of the Solicitor
General dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP No.
40393 wherein the Solicitor General joined cause with petitioners and prayed that
in the better interest of justice, [the] Petition for Prohibition be GRANTED and a
writ of prohibition be ISSUED forthwith. In support of said prayer, the Solicitor
General argued:
2. There is merit to the cause of petitioners. If the Secretary of Justice would find
their Appeal meritorious, the Provincial Prosecutor would be directed to upgrade
the Information to Murder and extreme prejudice if not gross injustice would
thereby have been avoided.
3 Consequently, the undersigned counsel interpose no objection to the issuance
of a writ of prohibition enjoining respondent Judge from holding further
proceedings in Criminal Case No. 96-1667-M, particularly in holding the
arraignment of the accused, pending resolution of the Appeal with the Secretary
of Justice.
The YABUTs opposed[44] petitioners Manifestation and Motion dated 1 July 1996
because they had already been arraigned and, therefore, would be placed in
double jeopardy; and that the public prosecutor -- not the private prosecutor --
had control of the prosecution of the case.
In his letter[45] dated 1 July 1996 addressed to the Provincial Prosecutor of
Pampanga, the Secretary of Justice set aside his order to amend the information
from homicide to murder considering that the appeal was rendered moot and
academic by the arraignment of the accused for homicide and their having
entered their pleas of not guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already
been arraigned on May 20, 1996 and had pleaded not guilty to the charge of
homicide, as shown by a copy of the court order dated May 20, 1996, the petition
for review insofar as the respondents-Yabut are concerned has been rendered
moot and academic.
However, the Secretary reiterated that Fortunato Mallari should be included in the
information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to
Amend Information and to Admit Amended Information.[46] The Amended
Information[47] merely impleaded Fortunato Mallari as one of the accused.
In his Order[48] of 1 August 1996, Judge Villon denied petitioners motion to set
aside arraignment, citing Section 4, DOJ Department Order No. 223, and the letter
of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for
reconsideration[49] of the order, arguing that the Motion to Defer the
Proceedings filed by petitioners was meritorious and did not violate the accuseds
right to speedy trial; and that the DOJ had ruled that the proper offense to be
charged was murder and did not reverse such finding. Petitioners also cited the
Solicitor Generals stand[50] in CA-G.R. SP No. 40393 that holding accuseds
arraignment in abeyance was proper under the circumstances. Finally, petitioners
contended that in proceeding with the arraignment despite knowledge of a
petition for prohibition pending before the Court of Appeals, the trial court
violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt. The
YABUTs opposed the motion on the ground that it raised no argument which had
not yet been resolved.[51]
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused
Fortunato Mallari,[52] which the trial court granted in view of petitioners motion
for reconsideration of the courts order denying petitioners motion to set aside
private respondents arraignment.[53] As expected, Mallari moved to reconsider
the trial courts order and clamored for consistency in the trial courts rulings.[54]
In an order[55] dated 15 October 1996, Judge Villon denied reconsideration of the
order denying petitioners motion to set aside arraignment, citing the YABUTs right
to a speedy trial and explaining that the prosecution of an offense should be
under the control of the public prosecutor, whereas petitioners did not obtain the
conformity of the prosecutor before they filed various motions to defer
proceedings. Considering said order, Judge Villon deemed accused Mallaris
motion for reconsideration moot and academic. [56]
On 16 October 1996, the Court of Appeals promulgated its decision[57] in CA-G.R.
SP No. 40393 dismissing the petition therein for having become moot and
academic in view of Judge Rouras voluntary inhibition, the arraignment of the
YABUTs and the dismissal, by the Secretary of Justice, of petitioners appeal as it
had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila,
and Judge Roura was ordered by the Supreme Court to preside over cases pending
in Branch 54 of the Regional Trial Court of Macabebe, Pampanga, which was
previously presided over by Judge Villon.[58] Judge Roura informed the Office of
the Court Administrator and this Court that he had already inhibited himself from
hearing Criminal Case No. 96-1667(M).[59]
On 28 December 1996, petitioners filed the instant Petition for
Certiorari/Prohibition and Mandamus. They urge this Court to reverse the order of
respondent Judge denying their Motion to Set Aside Arraignment; set aside
arraignment of private respondents; order that no further action be taken by any
court in Criminal Case No. 96-1667(M) until this petition is resolved; and order
respondents Secretary of Justice and the prosecutors concerned to amend the
information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by
treachery since private respondents tricked the victim into coming out of his
house and then shot him while he was going down the stairs. There was,
petitioners claim, an orchestrated effort on the part of [private respondents] to
manipulate the rules on administrative appeals with the end in view of evading
prosecution for the [non-bailable] offense of murder, as shown by the following
events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the
crime committed to homicide, a bailable offense, on strength of a motion for
reinvestigation filed by the YABUTs who had not yet been arrested.
(2) Respondent Mayor and his companions returned to Minalin after the killing
and went into hiding for four (4) months until the offense charged was
downgraded.
(3) The information for homicide was nevertheless filed despite notice to the
Office of the Provincial Prosecutor of the appeal filed with the Secretary of Justice
and request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the private
prosecutor from further participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in open
court that there was no prima facie case for murder, notwithstanding the
pendency of petitioners appeal with respondent Secretary of Justice.
(6) Even before receipt by petitioners of Judge Rouras order inhibiting himself and
the order regarding the transfer of the case to Branch 54, public respondent Judge
Villon set the case for arraignment and, without notice to petitioners, forthwith
arraigned the accused on the information for homicide on 20 May 1996, despite
the pendency of the petition for prohibition before the Court of Appeals and of
the appeal before the DOJ.
(7) The Pampanga Provincial Prosecutors Office did not object to the arraignment
nor take any action to prevent further proceedings on the case despite knowledge
of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of
the Secretary of Justice directing the amendment of the information to charge the
crime of murder.
Petitioners argue that in light of Roberts, Jr. v. Court of Appeals,[60] respondent
Judge acted in excess of his jurisdiction in proceeding with private respondents'
arraignment for homicide and denying petitioners' motion to set aside
arraignment. Moreover, although respondent Judge Villon was not the
respondent in CA-G.R. SP No. 40393, he should have deferred the proceedings just
the same as the very issue in said case was whether or not the RTC could proceed
with the arraignment despite the pending review of the case by respondent
Secretary of Justice. Further, Judge Villon unjustly invoked private respondents
right to a speedy trial, after a lapse of barely three (3) months from the filing of
the information on 23 February 1996; overlooked that private respondents were
estopped from invoking said right as they went into hiding after the killing, only to
resurface when the charge was reduced to homicide; and failed to detect the
Provincial Prosecutor's bias in favor of private respondents. Judge Villon should
have been more circumspect as he knew that by proceeding with the
arraignment, the appeal with the DOJ would be rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions
of prosecutors to the Secretary of Justice once the accused had already been
arraigned applies only to instances where the appellants are the accused, since by
submitting to arraignment, they voluntarily abandon their appeal.
In their comment, private respondents contend that no sufficient legal
justification exists to set aside private respondents' arraignment, it having already
been reset twice from 12 April 1996 to 3 May 1996, due to petitioners pending
appeal with the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of
this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet
resolved petitioners appeal and the DOJ did not request that arraignment be held
in abeyance, despite the fact that petitioners appeal had been filed as early as 23
February 1996, at least 86 days prior to private respondents arraignment. They
point out that petitioners did not move to reconsider the RTC's 26 March 1996
denial of the Motion to Defer, opting instead for Judge Rouras recusal and
recourse to the Court of Appeals, and as no restraining order was issued by the
Court of Appeals, it was but proper for respondent Judge to proceed with the
arraignment of private respondents, to which the public and private prosecutors
did not object.
Private respondents further argue that the decision of respondent Secretary,
involving as it did the exercise of discretionary powers, is not subject to judicial
review. Under the principle of separation of powers, petitioners' recourse should
have been to the President. While as regards petitioners plea that the Secretary
be compelled to amend the information from homicide to murder, private
respondents submit that mandamus does not lie, as the determination as to what
offense was committed is a prerogative of the DOJ, subject only to the control of
the President.
As regards DOJ Department Order No. 223, private respondents theorize that
appeal by complainants is allowed only if the complaint is dismissed by the
prosecutor and not when there is a finding of probable cause, in which case, only
the accused can appeal. Hence, petitioners appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the
withdrawal by the public prosecutor of the private prosecutor's authority to
handle the case.
In its comment for the public respondents, the Office of the Solicitor General
(OSG) prays that the petition be denied because: (a) in accordance with Section 4
of DOJ Order No. 223, upon arraignment of the accused, the appeal to the
Secretary of Justice shall be dismissed motu proprio; (b) the filing of the
information for homicide was in compliance with the directive under Section 4(2),
D.O. No. 223, i.e., an appeal or motion for reinvestigation from a resolution
finding probable cause shall not hold the filing of the information in court; (c) the
trial court even accommodated petitioners by initially deferring arraignment
pending resolution by the Court of Appeals of the petition for prohibition, and
since said Court did not issue any restraining order, arraignment was properly had;
and (d) reliance on Roberts is misplaced, as there, accused Roberts and others had
not been arraigned and respondent Judge had ordered the indefinite
postponement of the arraignment pending resolution of their petitions before the
Court of Appeals and the Supreme Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities which
lead us to conclude that something had gone awry in the Office of the Provincial
Prosecutor of Pampanga resulting in manifest advantage to the accused, more
particularly the YABUTs, and grave prejudice to the State and to private
complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail
recommended for their temporary liberty. However, for one reason or another
undisclosed in the record, the YABUTs were not arrested; neither did they
surrender. Hence, they were never brought into the custody of the law. Yet, Asst.
Provincial Fiscal Alfonso-Reyes, either motu proprio or upon motion of the
YABUTs, conducted a reinvestigation. Since said accused were at large, Alfonso-
Reyes should not have done so. While it may be true that under the second
paragraph of Section 5, Rule 112 of the Rules of Court, the provincial prosecutor
may disagree with the findings of the judge who conducted the preliminary
investigation, as here, this difference of opinion must be on the basis of the
review of the record and evidence transmitted by the judge. Were that all she did,
as she had no other option under the circumstances, she was without any other
choice but to sustain the MCTC since the YABUTs and all other accused, except
Francisco Yambao, waived the filing of their counter-affidavits. Then, further
stretching her magnanimity in favor of the accused, Alfonso-Reyes allowed the
YABUTs to submit their counter-affidavits without first demanding that they
surrender because of the standing warrants of arrest against them. In short,
Alfonso-Reyes allowed the YABUTs to make a mockery of the law in order that
they gain their provisional liberty pending trial and be charged with the lesser
offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs
and co-accused Danny, despite the fact that they were charged with homicide and
they were, at the time, fugitives from justice for having avoided service of the
warrant of arrest issued by the MCTC and having failed to voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecutions appeal to the DOJ
from her resolution. She could not have been ignorant of the fact that the appeal
vigorously assailed her finding that there was no qualifying circumstance
attending the killing, and that the private prosecution had convincing arguments
to support the appeal. The subsequent resolution of the Secretary of Justice
confirmed the correctness of the private prosecutions stand and exposed the
blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information
for homicide on 28 February 1996. It is interesting to note that while the
information was dated 29 January 1996, it was approved by the Provincial
Prosecutor only on 27 February 1996. This simply means that the Office of the
Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice
could have been caused to the YABUTs if it were filed even later for the YABUTs
were still at large; in fact, they filed their bonds of P20,000.00 each only after the
filing of the Information. If Alfonso-Flores was extremely generous to the YABUTs,
no compelling reason existed why she could not afford the offended parties the
same courtesy by at least waiting for instructions from the Secretary of Justice in
view of the appeal, if she were unwilling to voluntarily ask the latter for
instructions. Clearly, under the circumstances, the latter course of action would
have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial
Prosecutor of Pampanga did not even bother to motu proprio inform the trial
court that the private prosecution had appealed from the resolution of Alfonso-
Flores and had sought, with all the vigour it could muster, the filing of an
information for murder, as found by the MCTC and established by the evidence
before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the
Office of the Provincial Prosecutor did not even have the decency to agree to
defer arraignment despite its continuing knowledge of the pendency of the
appeal. This amounted to defiance of the DOJs power of control and supervision
over prosecutors, a matter which we shall later elaborate on. Moreover, in an
unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not
arrogance, to announce that he will no longer allow the private prosecutor to
participate or handle the prosecution of [the] case simply because the private
prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot
that since the offended parties here had not waived the civil action nor expressly
reserved their right to institute it separately from the criminal action, then they
had the right to intervene in the criminal case pursuant to Section 16 of Rule 110
of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the
resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the
Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses the resolution
of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for the dismissal of the complaint
or information.
It is clear from the above, that the proper party referred to therein could be either
the offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretarys power
of control over prosecutors. Thus, in Ledesma v. Court of Appeals,[61] we
emphatically held:
Decisions or resolutions of prosecutors are subject to appeal to the secretary of
justice who, under the Revised Administrative Code,[62] exercises the power of
direct control and supervision over said prosecutors; and who may thus affirm,
nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title
III of the Code gives the secretary of justice supervision and control over the
Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The
scope of his power of supervision and control is delineated in Section 38,
paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. -- Supervision and control shall include authority to
act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts;
review, approve, reverse or modify acts and decisions of subordinate officials or
units; x x x x.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section
37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as
may be assigned to them by the Secretary of Justice in the interest of public
service.
xxx xxx xxx
Section 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a
chief of bureau, office, division or service, the same shall be understood as also
conferred upon the proper Department Head who shall have authority to act
directly in pursuance thereof, or to review, modify, or revoke any decision or
action of said chief of bureau, office, division or service.
Supervision and control of a department head over his subordinates have been
defined in administrative law as follows:
In administrative law, supervision means overseeing or the power or authority of
an officer to see that subordinate officers perform their duties. If the latter fail or
neglect to fulfill them, the former may take such action or step as prescribed by
law to make them perform such duties. Control, on the other hand, means the
power of an officer to alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals
and prosecutors finds basis in the doctrine of exhaustion of administrative
remedies which holds that mistakes, abuses or negligence committed in the initial
steps of an administrative activity or by an administrative agency should be
corrected by higher administrative authorities, and not directly by courts. As a
rule, only after administrative remedies are exhausted may judicial recourse be
allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended
parties and the accused to appeal from resolutions in preliminary investigations or
reinvestigations, as provided for in Section 1 and Section 4, respectively. Section 1
thereof provides, thus:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice
except as otherwise provided in Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint,
petitioners herein were not barred from appealing from the resolution holding
that only homicide was committed, considering that their complaint was for
murder. By holding that only homicide was committed, the Provincial Prosecutors
Office of Pampanga effectively dismissed the complaint for murder. Accordingly,
petitioners could file an appeal under said Section 1. To rule otherwise would be
to forever bar redress of a valid grievance, especially where the investigating
prosecutor, as in this case, demonstrated what unquestionably appeared to be
unmitigated bias in favor of the accused. Section 1 is not to be literally applied in
the sense that appeals by the offended parties are allowed only in cases of
dismissal of the complaint, otherwise the last paragraph of Section 4, Rule 112,
Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private
respondents that Section 4 of DOJ Department Order No. 223 is the controlling
rule; hence, pursuant to the second paragraph thereof, the appeal of petitioners
did not hold the filing of the information. As stated above, Section 4 applies even
to appeals by the respondents or accused. The provision reads:
SEC. 4. Non-appealable cases. Exceptions. - No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor finding probable cause except upon a showing of manifest error or
grave abuse of discretion. Notwithstanding the showing of manifest error or grave
abuse of discretion, no appeal shall be entertained where the appellant had
already been arraigned. If the appellant is arraigned during the pendency of the
appeal, said appeal shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court. (underscoring
supplied)
The underlined portion indisputably shows that the section refers to appeals by
respondents or accused. So we held in Marcelo v. Court of Appeals[63] that
nothing in the ruling in Crespo v. Mogul,[64] reiterated in Roberts v. Court of
Appeals,[65] forecloses the power or authority of the Secretary of Justice to
review resolutions of his subordinates in criminal cases despite an information
already having been filed in court. The Secretary of Justice is only enjoined to
refrain, as far as practicable, from entertaining a petition for review or appeal
from the action of the prosecutor once a complaint or information is filed in court.
In any case, the grant of a motion to dismiss, which the prosecution may file after
the Secretary of Justice reverses an appealed resolution, is subject to the
discretion of the court. In Roberts we went further by saying that Crespo could
not have foreclosed said power or authority of the Secretary of Justice without
doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the
Rules of Court which is quoted above.
Indubitably then, there was, on the part of the public prosecution, indecent haste
in the filing of the information for homicide, depriving the State and the offended
parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave abuse
of discretion when, in his order of 26 March 1996,[66] he deferred resolution on
the motion for a hold departure order until such time that all the accused who are
out on bail are arraigned and denied the motion to defer proceedings for the
reason that the private prosecution has not shown any indication that [the]
appeal was given due course by the Secretary of Justice. Neither rhyme nor
reason or even logic, supports the ground for the deferment of the first motion.
Precisely, immediate action thereon was called for as the accused were out on bail
and, perforce, had all the opportunity to leave the country if they wanted to. To
hold that arraignment is a prerequisite to the issuance of a hold departure order
could obviously defeat the purpose of said order. As to the second motion, Judge
Roura was fully aware of the pendency of petitioners appeal with the DOJ, which
was filed as early as 23 February 1996. In fact, he must have taken that into
consideration when he set arraignment of the accused only on 12 April 1996, and
on that date, after denying petitioners motion to reconsider the denial of the
motion to defer proceedings, he further reset arraignment to 3 May 1996 and
gave petitioners ten (10) days within which to file a petition for certiorari to
question his denial of the motion to defer and of the order denying the
reconsideration. In any event, the better part of wisdom suggested that, at the
very least, he should have asked petitioners as regards the status of the appeal or
warned them that if the DOJ would not decide the appeal within a certain period,
then arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996
and, at the same time, moved to inhibit Judge Roura. These twin moves prompted
Judge Roura to voluntarily inhibit himself from the case on 29 April 1996[67] and
to transfer the case to the branch presided by public respondent Judge Villon. The
latter received the record of the case on 30 April 1996. From that time on,
however, the offended parties did not receive any better deal. Acting with
deliberate dispatch, Judge Villon issued an order on 3 May 1996 setting
arraignment of the accused on 20 May 1996. If Judge Villon only perused the
record of the case with due diligence, as should be done by anyone who has just
taken over a new case, he could not have helped but notice: (a) the motion to
defer further proceedings; (2) the order of Judge Roura giving petitioners ten days
within which to file a petition with the Court of Appeals; (3) the fact of the filing of
such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals
directing respondents to comment on the petition and show cause why the
application for a writ of preliminary injunction should not be granted and
deferring resolution of the application for a temporary restraining order until after
the required comment was filed, which indicated a prima facie showing of merit;
(5) the motion to inhibit Judge Roura precisely because of his prejudgment that
the crime committed was merely homicide; (6) Judge Rouras subsequent
inhibition; (7) various pieces of documentary evidence submitted by petitioners
on 30 April 1996 supporting a charge of murder, not homicide; and (8) most
importantly, the pending appeal with the DOJ.
All the foregoing demanded from any impartial mind, especially that of Judge
Villon, a cautious attitude as these were unmistakable indicia of the probability of
a miscarriage of justice should arraignment be precipitately held. However, Judge
Villon cursorily ignored all this. While it may be true that he was not bound to
await the DOJs resolution of the appeal, as he had, procedurally speaking,
complete control over the case and any disposition thereof rested on his sound
discretion,[68] his judicial instinct should have led him to peruse the documents
submitted on 30 April 1996 and to initially determine, for his own enlightenment
with serving the ends of justice as the ultimate goal, if indeed murder was the
offense committed; or, he could have directed the private prosecutor to secure a
resolution on the appeal within a specified time. Given the totality of
circumstances, Judge Villon should have heeded our statement in Marcelo[69]
that prudence, if not wisdom, or at least, respect for the authority of the
prosecution agency, dictated that he should have waited for the resolution of the
appeal then pending before the DOJ. All told, Judge Villon should not have merely
acquiesced to the findings of the public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of
discretion in rushing the arraignment of the YABUTs on the assailed information
for homicide. Again, the State and the offended parties were deprived of due
process.
Up to the level then of Judge Villon, two pillars of the criminal justice system failed
in this case to function in a manner consistent with the principle of accountability
inherent in the public trust character of a public office. Judges Roura and Villon
and prosecutors Alfonso-Flores and Datu need be reminded that it is in the public
interest that every crime should be punished[70] and judges and prosecutors play
a crucial role in this regard for theirs is the delicate duty to see justice done, i.e.,
not to allow the guilty to escape nor the innocent to suffer.[71]
Prosecutors must never forget that, in the language of Suarez v. Platon,[72] they
are the representatives not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win every case but that justice be done. As such, they are in a
peculiar and every definite sense the servants of the law, whose two-fold aim is
that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a crime,
and are expected to prosecute the public action with such zeal and vigor as if they
were the ones personally aggrieved, but at all times cautious that they refrain
from improper methods designed to secure a wrongful conviction.[73] With them
lies the duty to lay before the court the pertinent facts at the judges disposal with
strict attention to punctilios, thereby clarifying contradictions and sealing all gaps
in the evidence, with a view to erasing all doubt from the courts mind as to the
accuseds innocence or guilt.
The judge, on the other hand, should always be imbued with a high sense of duty
and responsibility in the discharge of his obligation to promptly and properly
administer justice.[74] He must view himself as a priest, for the administration of
justice is akin to a religious crusade. Thus, exerting the same devotion as a priest
in the performance of the most sacred ceremonies of religious liturgy, the judge
must render service with impartiality commensurate with the public trust and
confidence reposed in him.[75] Although the determination of a criminal case
before a judge lies within his exclusive jurisdiction and competence,[76] his
discretion is not unfettered, but rather must be exercised within reasonable
confines.[77] The judges action must not impair the substantial rights of the
accused, nor the right of the State and offended party to due process of law.[78]
Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the offended parties
which have been wronged must be equally considered. Verily, a verdict of
conviction is not necessarily a denial of justice; and an acquittal is not necessarily
a triumph of justice, for, to the society offended and the party wronged, it could
also mean injustice.[79] Justice then must be rendered even-handedly to both the
accused, on one hand, and the State and offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution and
Judges Roura and Villon was gross, grave and palpable, denying the State and the
offended parties their day in court, or in a constitutional sense, due process. As to
said judges, such amounted to lack or excess of jurisdiction, or that their court
was ousted of the jurisdiction in respect thereto, thereby nullifying as having been
done without jurisdiction, the denial of the motion to defer further hearings, the
denial of the motion to reconsider such denial, the arraignment of the YABUTs and
their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken
lightly. We must remedy the situation before the onset of any irreversible effects.
We thus have no other recourse, for as Chief Justice Claudio Teehankee
pronounced in Galman v. Sandiganbayan:[80]
The Supreme Court cannot permit such a sham trial and verdict and travesty of
justice to stand unrectified. The courts of the land under its aegis are courts of law
and justice and equity. They would have no reason to exist if they were allowed to
be used as mere tools of injustice, deception and duplicity to subvert and
suppress the truth, instead of repositories of judicial power whose judges are
sworn and committed to render impartial justice to all alike who seek the
enforcement or protection of a right or the prevention or redress of a wrong,
without fear or favor and removed from the pressures of politics and prejudice.
We remind all members of the pillars of the criminal justice system that theirs is
not a mere ministerial task to process each accused in and out of prison, but a
noble duty to preserve our democratic society under a rule of law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7
June 1996 resolution, holding that murder was committed and directing the
Provincial Prosecutor to accordingly amend the information, solely on the basis of
the information that the YABUTs had already been arraigned. In so doing, the DOJ
relinquished its power of control and supervision over the Provincial Prosecutor
and the Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to
the latters inappropriate conduct or even hostile attitude, which amounted to
neglect of duty or conduct prejudicial to the best interest of the service, as well as
to the undue haste of Judge Roura and Villon in respect of the arraignment of the
YABUTs. The sins of omission or commission of said prosecutors and judges
resulted, in light of the finding of the DOJ that the crime committed was murder,
in unwarranted benefit to the YABUTs and gross prejudice to the State and the
offended parties. The DOJ should have courageously exercised its power of control
by taking bolder steps to rectify the shocking mistakes so far committed and, in
the final analysis, to prevent further injustice and fully serve the ends of justice.
The DOJ could have, even if belatedly, joined cause with petitioners to set aside
arraignment. Further, in the exercise of its disciplinary powers over its personnel,
the DOJ could have directed the public prosecutors concerned to show cause why
no disciplinary action should be taken against them for neglect of duty or conduct
prejudicial to the best interest of the service in not, inter alia, even asking the trial
court to defer arraignment in view of the pendency of the appeal, informing the
DOJ, from time to time, of the status of the case, and, insofar as prosecutor Datu
was concerned, in disallowing the private prosecutor from further participating in
the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case
below to determine the regularity of arraignment, considering that the appeal
was received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio reconsideration of the 7 June
1996 resolution of the DOJ was attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case by
reason of grave abuse of discretion on the part of the trial court, the acquittal of
the accused[81] or the dismissal of the case[82] is void, hence double jeopardy
cannot be invoked by the accused. If this is so in those cases, so must it be where
the arraignment and plea of not guilty are void, as in this case as above discussed.
WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26
March 1996 denying the Motion to Defer Proceedings and of 12 April 1996
denying the motion to reconsider the denial of said Motion to Defer Proceedings,
and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the
arraignment to 20 May 1998 and of 15 October 1996 denying the Motion to Set
Aside Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET
ASIDE. The arraignment of private respondents Mayor Santiago Yabut, Servillano
Yabut and Martin Yabut and their separate pleas of not guilty are likewise
declared VOID and SET ASIDE. Furthermore, the order of public respondent
Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996
REINSTATED.
The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with
the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith filing with
the trial court the amended information for murder. Thereafter the trial court
shall proceed in said case with all reasonable dispatch.
No pronouncement as to costs.
SO ORDERED.
4. G.R. No. 157472. September 28, 2007.*
SSGT. JOSE M. PACOY, petitioner, vs. HON. AFABLE E. CAJIGAL, PEOPLE OF THE
PHILIPPINES and OLYMPIO L. ESCUETA, respondents.
Remedial Law; Criminal Procedure; Formal Amendment of Information; The
change of the offense charged from Homicide to Murder is merely a formal
amendment and not a substantial amendment or a substitution as defined in
Teehankee.—The change of the offense charged from Homicide to Murder is
merely a formal amendment and not a substantial amendment or a substitution
as defined in Teehankee.
Same; Same; Same; There was no change in the recital of facts constituting the
offense charged or in the determination of the jurisdiction of the court; The
averments in the amended Information for Murder are exactly the same as those
already alleged in the original Information for Homicide, as there was not at all
any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without
any qualifying circumstance. Thus, we find that the amendment made in the
caption and preamble from “Homicide” to “Murder” as purely formal.—While the
amended Information was for Murder, a reading of the Information shows that
the only change made was in the caption of the case; and in the opening
paragraph or preamble of the Information, with the crossing out of word
“Homicide” and its replacement by the word “Murder.” There was no change in
the recital of facts constituting the offense charged or in the determination of the
jurisdiction of the court. The averments in the amended Information for Murder
are exactly the same as those already alleged in the original Information for
Homicide, as there was not at all any change in the act imputed to petitioner, i.e.,
the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that
the amendment made in the caption and preamble from “Homicide” to “Murder”
as purely formal.
Same; Same; Same; Section 14, Rule 110 also provides that in allowing formal
amendments in cases in which the accused has already pleaded, it is necessary
that the amendments do not prejudice the rights of the accused.—Section 14,
Rule 110 also provides that in allowing formal amendments in cases in which the
accused has already pleaded, it is necessary that the amendments do not
prejudice the rights of the accused. The test of whether the rights of an accused
are prejudiced by the amendment of a complaint or information is whether a
defense under the complaint or information, as it originally stood, would no
longer be available after the amendment is made; and when any evidence the
accused might have would be inapplicable to the complaint or information. Since
the facts alleged in the accusatory portion of the amended Information are
identical with those of the original Information for Homicide, there could not be
any effect on the prosecution’s theory of the case; neither would there be any
possible prejudice to the rights or defense of petitioner.
Double Jeopardy; Requisites; There is double jeopardy when the following
requisites are present: (1) a first jeopardy attached prior to the second; (2) the
first jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first.—There is double jeopardy when the following
requisites are present: (1) a first jeopardy attached prior to the second; (2) the
first jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first.
Same; It is the conviction or acquittal of the accused or the dismissal or
termination of the case that bars further prosecution for the same offense or any
attempt to commit the same or the frustration thereof.—It is the conviction or
acquittal of the accused or the dismissal or termination of the case that bars
further prosecution for the same offense or any attempt to commit the same or
the frustration thereof; or prosecution for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint or
information.
Same; The requisite of double jeopardy that the first jeopardy must have attached
prior to the second is not present, considering that petitioner was neither
convicted nor acquitted; nor was the case against him dismissed or otherwise
terminated without his express consent.—A reading of the Order dated December
18, 2002 showed that the respondent judge granted petitioner’s motion for
reconsideration, not on the ground that double jeopardy exists, but on his
realization that “disregard of rank” is a generic aggravating circumstance which
does not qualify the killing of the victim to murder. Thus, he rightly corrected
himself by reinstating the original Information for Homicide. The requisite of
double jeopardy that the first jeopardy must have attached prior to the second is
not present, considering that petitioner was neither convicted nor acquitted; nor
was the case against him dismissed or otherwise terminated without his express
consent. Pacoy vs. Cajigal, 534 SCRA 338, G.R. No. 157472 September 28, 2007
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by
SSGT. Jose M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders
dated October 25, 2002[2] and December 18, 2002[3] issued by Presiding Judge
Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC), Branch 68,
Camiling, Tarlac in Criminal Case No. 02-42.
On July 4, 2002, an Information for Homicide was filed in the RTC against
petitioner committed as follows:
That on or about the 18th day of March 2002, in the Municipality of Mayantoc,
Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court,
the said accused with intent to kill, did then and there wilfully, unlawfully and
feloniously shot his commanding officer 2Lt. Frederick Esquita with his armalite
rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds
on his body which caused his instantaneous death.
With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of
his rank.[4]
On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de
parte, pleaded not guilty to the charge of Homicide. Respondent Judge set the
pre-trial conference and trial on October 8, 2002.[5
However, on the same day and after the arraignment, the respondent judge
issued another Order,[6] likewise dated September 12, 2002, directing the trial
prosecutor to correct and amend the Information to Murder in view of the
aggravating circumstance of disregard of rank alleged in the Information which
public respondent registered as having qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by crossing out
the word Homicide and instead wrote the word Murder in the caption and in the
opening paragraph of the Information. The accusatory portion remained exactly
the same as that of the original Information for Homicide, with the correction of
the spelling of the victims name from Escuita to Escueta.[7]
On October 8, 2002, the date scheduled for pre-trial conference and trial,
petitioner was to be re-arraigned for the crime of Murder. Counsel for petitioner
objected on the ground that the latter would be placed in double jeopardy,
considering that his Homicide case had been terminated without his express
consent, resulting in the dismissal of the case. As petitioner refused to enter his
plea on the amended Information for Murder, the public respondent entered for
him a plea of not guilty.[8]
On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend
Proceedings Pending the Resolution of the Instant Motion[9] on the ground of
double jeopardy. Petitioner alleged that in the Information for Homicide, he was
validly indicted and arraigned before a competent court, and the case was
terminated without his express consent; that when the case for Homicide was
terminated without his express consent, the subsequent filing of the Information
for Murder in lieu of Homicide placed him in double jeopardy.
In an Order[10] dated October 25, 2002,[11] the respondent judge denied the
Motion to Quash. He ruled that a claim of former acquittal or conviction does not
constitute double jeopardy and cannot be sustained unless judgment was
rendered acquitting or convicting the defendant in the former prosecution; that
petitioner was never acquitted or convicted of Homicide, since the Information for
Homicide was merely corrected/or amended before trial commenced and did not
terminate the same; that the Information for Homicide was patently insufficient in
substance, so no valid proceedings could be taken thereon; and that with the
allegation of aggravating circumstance of disregard of rank, the crime of Homicide
is qualified to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In
his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction
in an arbitrary, capricious and partial manner in mandating the amendment of the
charge from Homicide to Murder in disregard of the provisions of the law and
existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case against him
was dismissed or otherwise terminated without his express consent, which
constitutes a ground to quash the information for murder; and that to try him
again for the same offense constitutes double jeopardy. Petitioner stated that
contrary to respondent judge's conclusion that disregard of rank qualifies the
killing to Murder, it is a generic aggravating circumstance which only serves to
affect the imposition of the period of the penalty. Petitioner also argued that the
amendment and/or correction ordered by the respondent judge was substantial;
and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this
cannot be done, since petitioner had already been arraigned and he would be
placed in double jeopardy.
In his Order dated December 18, 2002,[12] the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:
WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED
while the Motion for Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall continue
hearing this case. Further, the Order dated October 25, 2002 is reconsidered and
the original information charging the crime of homicide stands.[13]
In granting the Motion for Reconsideration, respondent judge found that a close
scrutiny of Article 248 of the Revised Penal Code shows that disregard of rank is
merely a generic mitigating[14] circumstance which should not elevate the
classification of the crime of homicide to murder.
On April 30, 2003, petitioner filed herein petition for certiorari on the following
grounds:
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS
JURISDICTION IN ORDERING THE AMENDMENT OF THE INFORMATION FROM
HOMICIDE TO MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE
LAW IN DENYING THE MOTION TO QUASH THE INFORMATION FOR MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS
JURISDICTION AND VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF
THE INFORMATION FOR HOMICIDE WHICH WAS ALREADY TERMINATED.[15]
Petitioner alleges that despite having entered his plea of not guilty to the charge
of Homicide, the public respondent ordered the amendment of the Information
from Homicide to Murder because of the presence of the aggravating
circumstance of disregard of rank, which is in violation of Section 14, Rule 110 of
the Revised Rules of Criminal Procedure; that the public respondents ruling that
disregard of rank is a qualifying aggravating circumstance which qualified the
killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3, Article 14
of the Revised Penal Code, disregard of rank is only a generic aggravating
circumstance which serves to affect the penalty to be imposed upon the accused
and does not qualify the offense into a more serious crime; that even assuming
that disregard of rank is a qualifying aggravating circumstance, such is a
substantial amendment which is not allowed after petitioner has entered his plea.
Petitioner next contends that the respondent judge gravely abused his discretion
when he denied the Motion to Quash the Information for Murder, considering
that the original Information for Homicide filed against him was terminated
without his express consent; thus, prosecuting him for the same offense would
place him in double jeopardy.
Petitioner further argues that although the respondent judge granted his Motion
for Reconsideration, he did not in fact grant the motion, since petitioner's prayer
was for the respondent judge to grant the Motion to Quash the Information for
Murder on the ground of double jeopardy; that his Motion for Reconsideration
did not seek the reinstatement of the Information for Homicide upon the
dismissal of the Information for Murder, as he would again be placed in double
jeopardy; thus, the respondent judge committed grave abuse of discretion in
reinstating the Homicide case.
In his Comment, the Solicitor General argues that the respondent judge's Order
reinstating the Information to Homicide after initially motu proprio ordering its
amendment to Murder renders herein petition moot and academic; that
petitioner failed to establish the fourth element of double jeopardy, i.e., the
defendant was acquitted or convicted, or the case against him was dismissed or
otherwise terminated without his consent; that petitioner confuses amendment
with substitution of Information; that the respondent judge's Order dated
September 12, 2002 mandated an amendment of the Information as provided
under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and that
amendments do not entail dismissal or termination of the previous case.
Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment
alleging that no grave abuse of discretion was committed by the respondent judge
when he denied petitioner's Motion to Quash the Amended Information, as
petitioner was not placed in double jeopardy; that the proceedings under the first
Information for homicide has not yet commenced, and the case was not dismissed
or terminated when the Information was amended.
In his Reply, petitioner reiterates his contention that the amendment of the
charge of Homicide to Murder after his arraignment would place him in double
jeopardy, considering that said amendment was without his express consent; and
that such amendment was tantamount to a termination of the charge of
Homicide.
The parties filed their respective Memoranda.
Generally, a direct resort to us in a petition for certiorari is highly improper, for it
violates the established policy of strict observance of the judicial hierarchy of
courts. However, the judicial hierarchy of courts is not an iron-clad rule.[16] A
strict application of the rule of hierarchy of courts is not necessary when the cases
brought before the appellate courts do not involve factual but legal questions.[17]
In the present case, petitioner submits pure questions of law involving the proper
legal interpretation of the provisions on amendment and substitution of
information under the Rules of Court. It also involves the issue of double jeopardy,
one of the fundamental rights of the citizens under the Constitution which
protects the accused not against the peril of second punishment but against being
tried for the same offense. These important legal questions and in order to
prevent further delay in the trial of the case warrant our relaxation of the policy of
strict observance of the judicial hierarchy of courts.
The Courts Ruling
The petition is not meritorious.
We find no merit in petitioner's contention that the respondent judge committed
grave abuse of discretion in amending the Information after petitioner had
already pleaded not guilty to the charge in the Information for Homicide. The
argument of petitioner --
Considering the fact that the case for Homicide against him was already
terminated without his express consent, he cannot anymore be charged and
arraigned for Murder which involve the same offense. The petitioner argued that
the termination of the information for Homicide without his express consent is
equivalent to his acquittal. Thus, to charge him again, this time for Murder, is
tantamount to placing the petitioner in Double Jeopardy.[18]
is not plausible. Petitioner confuses the procedure and effects of amendment or
substitution under Section 14, Rule 110 of the Rules of Court, to wit --
SEC. 14. Amendment or substitution. A complaint or information may be
amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
xxx
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be placed
thereby in double jeopardy, and may also require the witnesses to give bail for
their appearance at the trial.
with Section 19, Rule 119 of which provides:
SEC. 19. When mistake has been made in charging the proper offense. - When it
becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not
be discharged if there appears good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense and dismiss the
original case upon the filing of the proper information.
First, a distinction shall be made between amendment and substitution under
Section 14, Rule 110. For this purpose, Teehankee v. Madayag[19] is instructive,
viz:
The first paragraph provides the rules for amendment of the information or
complaint, while the second paragraph refers to the substitution of the
information or complaint.
It may accordingly be posited that both amendment and substitution of the
information may be made before or after the defendant pleads, but they differ in
the following respects:
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of
court, but substitution of information must be with leave of court as the original
information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed and the
accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the original
information or to an offense which necessarily includes or is necessarily included
in the original charge, hence substantial amendments to the information after the
plea has been taken cannot be made over the objection of the accused, for if the
original information would be withdrawn, the accused could invoke double
jeopardy. On the other hand, substitution requires or presupposes that the new
information involves a different offense which does not include or is not
necessarily included in the original charge, hence the accused cannot claim
double jeopardy.
In determining, therefore, whether there should be an amendment under the first
paragraph of Section 14, Rule 110, or a substitution of information under the
second paragraph thereof, the rule is that where the second information involves
the same offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense which is distinct and
different from that initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when the
second offense is an attempt to commit or a frustration of, or when it necessarily
includes or is necessarily included in, the offense charged in the first information.
In this connection, an offense may be said to necessarily include another when
some of the essential elements or ingredients of the former, as this is alleged in
the information, constitute the latter. And, vice-versa, an offense may be said to
be necessarily included in another when the essential ingredients of the former
constitute or form a part of those constituting the latter.[20]
In the present case, the change of the offense charged from Homicide to Murder
is merely a formal amendment and not a substantial amendment or a substitution
as defined in Teehankee.
While the amended Information was for Murder, a reading of the Information
shows that the only change made was in the caption of the case; and in the
opening paragraph or preamble of the Information, with the crossing out of word
Homicide and its replacement by the word Murder. There was no change in the
recital of facts constituting the offense charged or in the determination of the
jurisdiction of the court. The averments in the amended Information for Murder
are exactly the same as those already alleged in the original Information for
Homicide, as there was not at all any change in the act imputed to petitioner, i.e.,
the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that
the amendment made in the caption and preamble from Homicide to Murder as
purely formal.[21]
Section 14, Rule 110 also provides that in allowing formal amendments in cases in
which the accused has already pleaded, it is necessary that the amendments do
not prejudice the rights of the accused. The test of whether the rights of an
accused are prejudiced by the amendment of a complaint or information is
whether a defense under the complaint or information, as it originally stood,
would no longer be available after the amendment is made; and when any
evidence the accused might have would be inapplicable to the complaint or
information.[22] Since the facts alleged in the accusatory portion of the amended
Information are identical with those of the original Information for Homicide,
there could not be any effect on the prosecution's theory of the case; neither
would there be any possible prejudice to the rights or defense of petitioner.
While the respondent judge erroneously thought that disrespect on account of
rank qualified the crime to murder, as the same was only a generic aggravating
circumstance,[23] we do not find that he committed any grave abuse of discretion
in ordering the amendment of the Information after petitioner had already
pleaded not guilty to the charge of Homicide, since the amendment made was
only formal and did not adversely affect any substantial right of petitioner.
Next, we determine whether petitioner was placed in double jeopardy by the
change of the charge from Homicide to Murder; and subsequently, from Murder
back to Homicide. Petitioner's claim that the respondent judge committed grave
abuse of discretion in denying his Motion to Quash the Amended Information for
Murder on the ground of double jeopardy is not meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of
Court, which provides:
SEC. 3. Grounds. - The accused may move to quash the complaint or information
on any of the following grounds:
xxxx
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without
his express consent.
Section 7 of the same Rule lays down the requisites in order that the defense of
double jeopardy may prosper, to wit:
SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon
a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall
be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint
or information.
Thus, there is double jeopardy when the following requisites are present: (1) a
first jeopardy attached prior to the second; (2) the first jeopardy has been validly
terminated; and (3) a second jeopardy is for the same offense as in the first.[24]
As to the first requisite, the first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment; (d) when a valid
plea has been entered; and (e) when the accused was acquitted or convicted, or
the case was dismissed or otherwise terminated without his express consent.[25]
It is the conviction or acquittal of the accused or the dismissal or termination of
the case that bars further prosecution for the same offense or any attempt to
commit the same or the frustration thereof; or prosecution for any offense which
necessarily includes or is necessarily included in the offense charged in the former
complaint or information.[26]
Petitioner's insistence that the respondent judge dismissed or terminated his case
for homicide without his express consent, which is tantamount to an acquittal, is
misplaced.
Dismissal of the first case contemplated by Section 7 presupposes a definite or
unconditional dismissal which terminates the case.[27] And for the dismissal to be
a bar under the jeopardy clause, it must have the effect of acquittal.
The respondent judge's Order dated September 12, 2002 was for the trial
prosecutor to correct and amend the Information but not to dismiss the same
upon the filing of a new Information charging the proper offense as contemplated
under the last paragraph of Section 14, Rule 110 of the Rules of Court -- which, for
convenience, we quote again --
If it appears at anytime before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be placed in
double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial.
and Section 19, Rule 119, which provides:
SEC. 19.- When mistake has been made in charging the proper offense - When it
becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not
be discharged if there appears good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense and dismiss the
original case upon the filing of the proper information.
Evidently, the last paragraph of Section 14, Rule 110, applies only when the
offense charged is wholly different from the offense proved, i.e., the accused
cannot be convicted of a crime with which he was not charged in the information
even if it be proven, in which case, there must be a dismissal of the charge and a
substitution of a new information charging the proper offense. Section 14 does
not apply to a second information, which involves the same offense or an offense
which necessarily includes or is necessarily included in the first information. In this
connection, the offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved when the essential ingredients of the
former constitute or form a part of those constituting the latter.[28]
Homicide is necessarily included in the crime of murder; thus, the respondent
judge merely ordered the amendment of the Information and not the dismissal of
the original Information. To repeat, it was the same original information that was
amended by merely crossing out the word Homicide and writing the word
Murder, instead, which showed that there was no dismissal of the homicide case.
Anent the last issue, petitioner contends that respondent judge gravely abused his
discretion in ordering that the original Information for Homicide stands after
realizing that disregard of rank does not qualify the killing to Murder. That ruling
was again a violation of his right against double jeopardy, as he will be prosecuted
anew for a charge of Homicide, which has already been terminated earlier.
We are not convinced. Respondent judge did not commit any grave abuse of
discretion.
A reading of the Order dated December 18, 2002 showed that the respondent
judge granted petitioner's motion for reconsideration, not on the ground that
double jeopardy exists, but on his realization that disregard of rank is a generic
aggravating circumstance which does not qualify the killing of the victim to
murder. Thus, he rightly corrected himself by reinstating the original Information
for Homicide. The requisite of double jeopardy that the first jeopardy must have
attached prior to the second is not present, considering that petitioner was
neither convicted nor acquitted; nor was the case against him dismissed or
otherwise terminated without his express consent.[29]
WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion
committed by respondent Judge.
SO ORDERED.
5. G.R. No. 184800.  May 5, 2010.*
WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND JOVENCIO
PERECHE, SR., petitioners, vs. REGIONAL TRIAL COURT OF MAKATI, BRANCH 149,
and JESSIE JOHN P. GIMENEZ, respondents.
Criminal Law; Venue; Jurisdiction; Libel; Venue is jurisdictional in criminal actions
such that the place where the crime was committed determines not only the
venue of the action but constitutes an essential element of jurisdiction. This
principle acquires even greater import in libel cases, given that Article 360, as
amended, specifically provides for the possible venue for the institution of the
criminal and civil aspects of such cases.—Venue is jurisdictional in criminal actions
such that the place where the crime was committed determines not only the
venue of the action but constitutes an essential element of jurisdiction. This
principle acquires even greater import in libel cases, given that Article 360, as
amended, specifically provides for the possible venues for the institution of the
criminal and civil aspects of such cases.
Same; Same; Same; Same; Venue of libel cases where the complaint is a private
individual is limited to only either of two places, namely: 1) where the
complainant actually resides at the time of the commission of the offense; or 2)
where the alleged defamatory article was printed and first published.—It becomes
clear that the venue of libel cases where the complainant is a private individual is
limited to only either of two places, namely: 1) where the complainant actually
resides at the time of the commission of the offense; or 2) where the alleged
defamatory article was printed and first published. The Amended Information in
the present case opted to lay the venue by availing of the second. Thus, it stated
that the offending article “was first published and accessed by the private
complainant in Makati City.” In other words, it considered the phrase to be
equivalent to the requisite allegation of printing and first publication.
Same; Same; Same; Same; If the circumstances as to where the libel was printed
and first published are used by the offended party as basis for the venue in
criminal action, the Information must allege with particularity where the
defamatory article was printed and first published, as evidence or supported by,
for instance, the address of their editorial or business offices in the case of
newspaper, magazines or serial publications.—If the circumstances as to where
the libel was printed and first published are used by the offended party as basis
for the venue in the criminal action, the Information must allege with particularity
where the defamatory article was printed and first published, as evidenced or
supported by, for instance, the address of their editorial or business offices in the
case of newspapers, magazines or serial publications. This pre-condition becomes
necessary in order to forestall any inclination to harass. Bonifacio vs. Regional Trial
Court of Makati, Branch 149, 620 SCRA 268, G.R. No. 184800<br/> May 5, 2010
DECISION
CARPIO MORALES, J.:
Via a petition for Certiorari and Prohibition, petitioners Wonina M. Bonifacio, et al.
assail the issuances of Branch 149 of the Regional Trial Court (RTC) of Makati
(public respondent) Order[1] of April 22, 2008 which denied their motion to quash
the Amended Information indicting them for libel, and Joint Resolution[2] of
August 12, 2008 denying reconsideration of the first issuance.
Private respondent Jessie John P. Gimenez[3] (Gimenez) filed on October 18, 2005,
on behalf of the Yuchengco Family (in particular, former Ambassador Alfonso
Yuchengco and Helen Y. Dee (Helen) and of the Malayan Insurance Co., Inc.
(Malayan),[4] a criminal complaint,[5] before the Makati City Prosecutors Office,
for thirteen (13) counts of libel under Article 355 in relation to Article 353 of the
Revised Penal Code (RPC) against Philip Piccio, Mia Gatmaytan and Ma. Anabella
Relova Santos, who are officers of Parents Enabling Parents Coalition, Inc. (PEPCI),
John Joseph Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina
Bonifacio, Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria Gomez Jacinto,
Jurencio Pereche, Ricardo Loyares and Peter Suchianco, who are trustees of PEPCI,
Trennie Monsod, a member of PEPCI (collectively, the accused), and a certain John
Doe, the administrator of the website www.pepcoalition.com.
PEPCI appears to have been formed by a large group of disgruntled planholders of
Pacific Plans, Inc. (PPI) - a wholly owned subsidiary of Great Pacific Life Assurance
Corporation, also owned by the Yuchengco Group of Companies (YGC) - who had
previously purchased traditional pre-need educational plans but were unable to
collect thereon or avail of the benefits thereunder after PPI, due to liquidity
concerns, filed for corporate rehabilitation with prayer for suspension of
payments before the Makati RTC.
Decrying PPIs refusal/inability to honor its obligations under the educational pre-
need plans, PEPCI sought to provide a forum by which the planholders could seek
redress for their pecuniary loss under their policies by maintaining a website on
the internet under the address of www.pepcoalition.com.
Gimenez alleged that PEPCI also owned, controlled and moderated on the
internet a blogspot[6] under the website address
www.pacificnoplan.blogspot.com, as well as a yahoo e-group[7] at
no2pep2010@yahoogroups.com. These websites are easily accessible to the
public or by anyone logged on to the internet.
Gimenez further alleged that upon accessing the above-stated websites in Makati
on various dates from August 25 to October 2, 2005, he was appalled to read
numerous articles [numbering 13], maliciously and recklessly caused to be
published by [the accused] containing highly derogatory statements and false
accusations, relentlessly attacking the Yuchengco Family, YGC, and particularly,
Malayan.[8] He cited an article which was posted/published on
www.pepcoalition.com on August 25, 2005 which stated:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga
kinatatakutan kong pagbagsak ng negotiation because it was done prematurely
since we had not file any criminal aspect of our case. What is worse is that
Yuchengcos benefited much from the nego. x x x . That is the fact na talagang
hindi dapat pagtiwalaan ang mga Yuchengcos.
LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN COURT, BSP AND
AMLC AND WHEREVER. Pumunta tayong muli sa senado, congreso, RCBC Plaza,
and other venues to air our grievances and call for boycott ng YGC. Let us start
within ourselves. Alisin natin ang mga investments and deposits natin sa lahat ng
YGC and I mean lahat and again convince friends to do the same. Yung mga
nanonood lang noon ay dapat makisali na talaga ngayon specially those who
joined only after knowing that there was a negotiation for amicable settlements.
FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE READY FOR IT
BECAUSE THEY HAD SUCCESSFULLY LULL US AND THE NEXT TIME THEY WILL TRY
TO KILL US NA. x x x [9] (emphasis in the original)
By Resolution of May 5, 2006,[10] the Makati City Prosecutors Office, finding
probable cause to indict the accused, filed thirteen (13) separate Informations[11]
charging them with libel. The accusatory portion of one Information, docketed as
Criminal Case No. 06-876, which was raffled off to public respondent reads:
That on or about the 25th day of August 2005 in Makati City, Metro Manila,
Philippines, a place within the jurisdiction of the Honorable Court, the above-
named accused, being then the trustees of Parents Enabling Parents Coalition and
as such trustees they hold the legal title to the website www.pepcoalition.com
which is of general circulation, and publication to the public conspiring,
confederating and mutually helping with one another together with John Does,
did then and there willfully, unlawfully and feloniously and publicly and
maliciously with intention of attacking the honesty, virtue, honor and integrity,
character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco
Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further
purpose exposing the complainant to public hatred and contempt published an
article imputing a vice or defect to the complainant and caused to be composed,
posted and published in the said website www.pepcoalition.com and injurious
and defamatory article as follows:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga
kinatatakutan kong pagbagsak ng negotiation. x x x x x x x x x
For sure may tactics pa silang nakabasta sa atin. Let us be ready for it because
they had successfully lull us and the next time they will try to kill us na. x x x
A copy of the full text of the foregoing article as published/posted in
www.pepcoalition.com is attached as Annex F of the complaint.
That the keyword and password to be used in order to post and publish the above
defamatory article are known to the accused as trustees holding legal title to the
above-cited website and that the accused are the ones
responsible for the posting and publication of the defamatory articles that the
article in question was posted and published with the object of the discrediting
and ridiculing the complainant before the public.
CONTRARY TO LAW.[12]
Several of the accused appealed the Makati City Prosecutors Resolution by a
petition for review to the Secretary of Justice who, by Resolution of June 20, 2007,
[13] reversed the finding of probable cause and accordingly directed the
withdrawal of the Informations for libel filed in court. The Justice Secretary opined
that the crime of internet libel was non-existent, hence, the accused could not be
charged with libel under Article 353 of the RPC.[14]
Petitioners, as co-accused,[15] thereupon filed on June 6, 2006, before the public
respondent, a Motion to Quash[16] the Information in Criminal Case No. 06-876
on the grounds that it failed to vest jurisdiction on the Makati RTC; the acts
complained of in the Information are not punishable by law since internet libel is
not covered by Article 353 of the RPC; and the Information is fatally defective for
failure to designate the offense charged and the acts or omissions complained of
as constituting the offense of libel.
Citing Macasaet v. People,[17] petitioners maintained that the Information failed
to allege a particular place within the trial courts jurisdiction where the subject
article was printed and first published or that the offended parties resided in
Makati at the time the alleged defamatory material was printed and first
published.
By Order of October 3, 2006,[18] the public respondent, albeit finding that
probable cause existed, quashed the Information, citing Agustin v. Pamintuan.[19]
It found that the Information lacked any allegations that the offended parties
were actually residing in Makati at the time of the commission of the offense as in
fact they listed their address in the complaint-affidavit at Yuchengco Tower in
Binondo, Manila; or that the alleged libelous article was printed and first
published in Makati.
The prosecution moved to reconsider the quashal of the Information,[20] insisting
that the Information sufficiently conferred jurisdiction on the public respondent. It
cited Banal III v. Panganiban[21] which held that the Information need not allege
verbatim that the libelous publication was printed and first published in the
appropriate venue. And it pointed out that Malayan has an office in Makati of
which Helen is a resident. Moreover, the prosecution alleged that even assuming
that the Information was deficient, it merely needed a formal amendment.
Petitioners opposed the prosecutions motion for reconsideration, contending,
inter alia, that since venue is jurisdictional in criminal cases, any defect in an
information for libel pertaining to jurisdiction is not a mere matter of form that
may be cured by amendment.[22]
By Order of March 8, 2007,[23] the public respondent granted the prosecutions
motion for reconsideration and accordingly ordered the public prosecutor to
amend the Information to cure the defect of want of venue.
The prosecution thereupon moved to admit the Amended Information dated
March 20, 2007,[24] the accusatory portion of which reads:
That on or about the 25th day of August 2005 in Makati City, Metro Manila,
Philippines, a place within the jurisdiction of the Honorable Court, the above-
named accused, being then the trustees of Parents Enabling Parents Coalition and
as such trustees they hold the legal title to the website www.pepcoalition.com
which is of general circulation, and publication to the public conspiring,
confederating together with John Does, whose true names, identities and present
whereabouts are still unknown and all of them mutually helping and aiding one
another, did then and there willfully, unlawfully and feloniously and publicly and
maliciously with intention of attacking the honesty, virtue, honor and integrity,
character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco
Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further
purpose exposing the complainant to public hatred and contempt published an
article imputing a vice or defect to the complainant and caused to be composed,
posted and published in the said website www.pepcoalition.com, a website
accessible in Makati City, an injurious and defamatory article, which was first
published and accessed by the private complainant in Makati City, as follows:
x x x x (emphasis and underscoring in the original; italics supplied)
Petitioners moved to quash the Amended Information[25] which, they alleged,
still failed to vest jurisdiction upon the public respondent because it failed to
allege that the libelous articles were printed and first published by the accused in
Makati; and the prosecution erroneously laid the venue of the case in the place
where the offended party accessed the internet-published article.
By the assailed Order of April 22, 2008, the public respondent, applying Banal III,
found the Amended Information to be sufficient in form.
Petitioners motion for reconsideration[26] having been denied by the public
respondent by Joint Resolution of August 12, 2008, they filed the present petition
for Certiorari and Prohibition faulting the public respondent for:
1. NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION ARE NOT
PUNISHABLE BY LAW;
2. ADMITTING AN AMENDED INFORMATION WHOSE JURISDICTIONAL
ALLEGATIONS CONTINUES TO BE DEFICIENT; and
3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION FOR THE PURPOSE
OF CURING JURISDICTIONAL DEFECTS IS ILLEGAL.[27]
With the filing of Gimenezs Comment[28] to the petition, the issues are: (1)
whether petitioners violated the rule on hierarchy of courts to thus render the
petition dismissible; and (2) whether grave abuse of discretion attended the
public respondents admission of the Amended Information.
The established policy of strict observance of the judicial hierarchy of courts,[29]
as a rule, requires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court.[30] A regard for judicial
hierarchy clearly indicates that petitions for the issuance of extraordinary writs
against first level courts should be filed in the RTC and those against the latter
should be filed in the Court of Appeals.[31] The rule is not iron-clad, however, as it
admits of certain exceptions.
Thus, a strict application of the rule is unnecessary when cases brought before the
appellate courts do not involve factual but purely legal questions.[32]
In the present case, the substantive issue calls for the Courts exercise of its
discretionary authority, by way of exception, in order to abbreviate the review
process as petitioners raise a pure question of law involving jurisdiction in criminal
complaints for libel under Article 360 of the RPC whether the Amended
Information is sufficient to sustain a charge for written defamation in light of the
requirements under Article 360 of the RPC, as amended by Republic Act (RA) No.
4363, reading:
Art. 360. Persons responsible.Any person who shall publish, exhibit or cause the
publication or exhibition of any defamation in writing or by similar means, shall be
responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of
a daily newspaper, magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he were the author
thereof.
The criminal action and civil action for damages in cases of written defamations,
as provided for in this chapter shall be filed simultaneously or separately with the
Court of First Instance of the province or city where the libelous article is printed
and first published or where any of the offended parties actually resides at the
time of the commission of the offense: Provided, however, That where one of the
offended parties is a public officer whose office is in the City of Manila at the time
of the commission of the offense, the action shall be filed in the Court of First
Instance of the City of Manila or of the city or province where the libelous article
is printed and first published, and in case such public officer does not hold office
in the City of Manila, the action shall be filed in the Court of First Instance of the
province or city where he held office at the time of the commission of the offense
or where the libelous article is printed and first published and in case one of the
offended parties is a private individual, the action shall be filed in the Court of
First Instance of the province or city where he actually resides at the time of the
commission of the offense or where the libelous matter is printed and first
published x x x. (emphasis and underscoring supplied)
Venue is jurisdictional in criminal actions such that the place where the crime was
committed determines not only the venue of the action but constitutes an
essential element of jurisdiction.[33] This principle acquires even greater import
in libel cases, given that Article 360, as amended, specifically provides for the
possible venues for the institution of the criminal and civil aspects of such cases.
In Macasaet,[34] the Court reiterated its earlier pronouncements in Agbayani v.
Sayo[35] which laid out the rules on venue in libel cases, viz:
For the guidance, therefore, of both the bench and the bar, this Court finds it
appropriate to reiterate our earlier pronouncement in the case of Agbayani, to
wit:
In order to obviate controversies as to the venue of the criminal action for written
defamation, the complaint or information should contain allegations as to
whether, at the time the offense was committed, the offended party was a public
officer or a private individual and where he was actually residing at that time.
Whenever possible, the place where the written defamation was printed and first
published should likewise be alleged. That allegation would be a sine qua non if
the circumstance as to where the libel was printed and first published is used as
the basis of the venue of the action. (emphasis and underscoring supplied)
It becomes clear that the venue of libel cases where the complainant is a private
individual is limited to only either of two places, namely: 1) where the
complainant actually resides at the time of the commission of the offense; or 2)
where the alleged defamatory article was printed and first published. The
Amended Information in the present case opted to lay the venue by availing of the
second. Thus, it stated that the offending article was first published and accessed
by the private complainant in Makati City. In other words, it considered the phrase
to be equivalent to the requisite allegation of printing and first publication.
The insufficiency of the allegations in the Amended Information to vest
jurisdiction in Makati becomes pronounced upon an examination of the rationale
for the amendment to Article 360 by RA No. 4363. Chavez v. Court of Appeals[36]
explained the nature of these changes:
Agbayani supplies a comprehensive restatement of the rules of venue in actions
for criminal libel, following the amendment by Rep. Act No. 4363 of the Revised
Penal Code:
Article 360 in its original form provided that the venue of the criminal and civil
actions for written defamations is the province wherein the libel was published,
displayed or exhibited, regardless of the place where the same was written,
printed or composed. Article 360 originally did not specify the public officers and
the courts that may conduct the preliminary investigation of complaints for libel.
Before article 360 was amended, the rule was that a criminal action for libel may
be instituted in any jurisdiction where the libelous article was published or
circulated, irrespective of where it was written or printed (People v. Borja, 43 Phil.
618). Under that rule, the criminal action is transitory and the injured party has a
choice of venue.
Experience had shown that under that old rule the offended party could harass
the accused in a libel case by laying the venue of the criminal action in a remote
or distant place.
Thus, in connection with an article published in the Daily Mirror and the
Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and Joaquin Roces were
charged with libel in the justice of the peace court of San Fabian, Pangasinan
(Amansec v. De Guzman, 93 Phil. 933).
To forestall such harassment, Republic Act No. 4363 was enacted. It lays down
specific rules as to the venue of the criminal action so as to prevent the offended
party in written defamation cases from inconveniencing the accused by means of
out-of-town libel suits, meaning complaints filed in remote municipal courts
(Explanatory Note for the bill which became Republic Act No. 4363, Congressional
Record of May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May 31, 1971, 39
SCRA 303, 311).
x x x x (emphasis and underscoring supplied)
Clearly, the evil sought to be prevented by the amendment to Article 360 was the
indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or
far-flung areas, meant to accomplish nothing more than harass or intimidate an
accused. The disparity or unevenness of the situation becomes even more acute
where the offended party is a person of sufficient means or possesses influence,
and is motivated by spite or the need for revenge.
If the circumstances as to where the libel was printed and first published are used
by the offended party as basis for the venue in the criminal action, the
Information must allege with particularity where the defamatory article was
printed and first published, as evidenced or supported by, for instance, the
address of their editorial or business offices in the case of newspapers, magazines
or serial publications. This pre-condition becomes necessary in order to forestall
any inclination to harass.
The same measure cannot be reasonably expected when it pertains to defamatory
material appearing on a website on the internet as there would be no way of
determining the situs of its printing and first publication. To credit Gimenezs
premise of equating his first access to the defamatory article on petitioners
website in Makati with printing and first publication would spawn the very ills that
the amendment to Article 360 of the RPC sought to discourage and prevent. It
hardly requires much imagination to see the chaos that would ensue in situations
where the websites author or writer, a blogger or anyone who posts messages
therein could be sued for libel anywhere in the Philippines that the private
complainant may have allegedly accessed the offending website.
For the Court to hold that the Amended Information sufficiently vested
jurisdiction in the courts of Makati simply because the defamatory article was
accessed therein would open the floodgates to the libel suit being filed in all other
locations where the pepcoalition website is likewise accessed or capable of being
accessed.
Respecting the contention that the venue requirements imposed by Article 360,
as amended, are unduly oppressive, the Courts pronouncements in Chavez[37]
are instructive:
For us to grant the present petition, it would be necessary to abandon the
Agbayani rule providing that a private person must file the complaint for libel
either in the place of printing and first publication, or at the complainants place of
residence. We would also have to abandon the subsequent cases that reiterate
this rule in Agbayani, such as Soriano, Agustin, and Macasaet. There is no
convincing reason to resort to such a radical action. These limitations imposed on
libel actions filed by private persons are hardly onerous, especially as they still
allow such persons to file the civil or criminal complaint in their respective places
of residence, in which situation there is no need to embark on a quest to
determine with precision where the libelous matter was printed and first
published.
(Emphasis and underscoring supplied.)
IN FINE, the public respondent committed grave abuse of discretion in denying
petitioners motion to quash the Amended Information.
WHEREFORE, the petition is GRANTED. The assailed Order of April 22, 2008 and
the Joint Resolution of August 12, 2008 are hereby SET ASIDE. The Regional Trial
Court of Makati City, Br. 149 is hereby DIRECTED TO QUASH the Amended
Information in Criminal Case No. 06-876 and DISMISS the case.
SO ORDERED.
6. No. L-66469. July 29, 1986.*
PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners, vs. HON.
BERNARDO SALAS (In his capacity as Presiding Judge of RTC, Cebu, Branch VIII),
MARIO ABONG, ALFREDO DE LEON, ERIWADWIN MONTEBON, ROMEO DE
GUZMAN, & EDUARDO MABUHAY, respondents.
Constitutional Law; Trial in absentia; Purpose of the rule that trial of the accused
may proceed notwithstanding the absence of the accused.—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 of People v. Avanceña required his presence
at certain stages of the trial which as a result, had to be discontinued as long as
the defendant had not reappeared 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.
Same; Same; Doctrine in People vs. Avanceña, modified by Section 19 of the
Constitution which now allows trial in absentia; Requirements for trial in absentia.
—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.
Same; Same; Right to be present at one’s trial waivable, except only at that stage
where the accused has to be identified by prosecution witnesses; Defendant’s
escape constitutes a waiver of the right to be present and to be notified of the
trial.—The right to be present at one’s trial may now be waived except only at that
stage where the prosecution intends to present witnesses who will identify the
accused. Under Section 19, the defendant’s escape will be considered a waiver of
this right and the inability of the court to notify him of the 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 make his failure to appear
unjustified because he has, by escaping, placed himself beyond the pale, and
protection, of the law,
Same; Same; When all the requisites for a trial in absentia are present, the trial
judge erred in refusing to try the accused who had already been arraigned when
he escaped.—Trial in absentia was not allowed in Borja v. Mendoza 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.
Same; Same; Interpretation, Too literal reading of the law, not advisable; Judges,
not bound by the language of the law but must discover the reason and rhyme for
its enactment.—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.
PETITION to review the order of the Court of First Instance of Cebu.
The facts are stated in the opinion of the Court.
Basilio E. Duaban for accused.
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.
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:
“Section 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 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.”
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 of People v.
Avanceña8 required his presence at certain stages of the trial which as a result,
had to be discontinued as long as the defendant had not reappeared 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 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 his disadvantage by
preventing him from attending his trial, which will continue even in his absence
and most likely result in his conviction.
The right to be present at one’s trial may now be waived except only at that stage
where the prosecution intends to present witnesses who will identify the
accused.9 Under Section 19, the defendant’s escape will be considered a waiver of
this right and the inability of the court to notify him of the 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 make his failure to appear
unjustified because he has, by escaping, placed himself beyond the pale, and
protection, of the law.
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, denying the
motion for the trial in absentia of the accused is set aside. The respondent judge is
directed to continue hearing the case against the respondent Mario Abong in
absentia as long as he has not reappeared, until it is terminated. No costs.
SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera and Paras, JJ., concur.
Order set aside. People vs. Salas, 143 SCRA 163, No. L-66469 July 29, 1986

Trial in absentia was not allowed in Borja v. Mendoza10 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
 7. 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.

Remedial Law; Criminal Procedure; Jurisdiction; Jurisdiction once acquired is not

lost upon the instance of the parties but continues until the case is terminated.—
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,
jurisdiction once acquired is not lost upon the instance of parties but continues
until the case is terminated.

Same; Same; Same; Arraignment; Where the accused appears at the arraignment
and pleads not guilty to the crime charged, jurisdiction is acquired by the courts
over his person and continues until termination of the case, despite his escape
from custody of the law.—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.

Same; Same; Same; Same; Trial in absentia: Conditions for a trial in absentia to be
present.—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.
Same: Same: Same: Same; Same; Upon termination of a trial in absentia, the court
has the duty to rule upon the evidence presented in court; Reason.—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
escaped from custody finally decides to appear in court to present his evidence
and crossexamine the witnesses against him. To allow the delay of proceedings for
this purpose is to render ineffective the constitutionaJ provision on trial in
absentia.
Same; Same; Same; Same; Same; Constitutional Law; Right of the accused to be
presumed innocent, not violated if the judgment is rendered as to the accused
tried in absentia; Reason.—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.
Same; Same; Same; Same; Same; Waiver of the escapee’s right who has been
tried in absentia to confrontation and cross-examination of witnesses and to
present evidence by his failure to appear during the trial of which he had notice:
Right is a personal right and may be waived.—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. 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.
The facts are stated in the opinion of the Court.
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 accused, 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 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. (Italics 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 Reeonsideration
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.4 Furthermore, 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
criminal cases, 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 goast&ution
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 Blotter8 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 escape from custody finally decides to appear in court to present his
evidence and cross-examine 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:
“x x x The Constitutional Convention felt the need for such a provision as there
were quite a number of reported instances where the pFoceedmgs 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 it can be said that an escapee who has been tried in absentia retains his right
to cross-examine and to present evidence on his behalf. By his failure to appear
during the trial of which he had notice, be virtually waived these rights. This Court
has consistently held that the right of the accused to confrontation and cross-
examination of witnessess is a personal right and may be waived.10 Tn the same
vein, his right to presend 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 pornouncement 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:
“x x x 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 trial and escapes, he shall deemed to have waived his right to be
present on said date and on all subsequent trial dates until custody is regained. x x
x.”
Accordingly, it is Our considered opinion, and We so hold, that an escapee who
has been duly tried in absentia waives his right to present evidences 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.
Teehankee (C.J.), Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
Paras, Feliciano, Padilla, Bidin, Sarmiento, Cortés and Grino-Aquino, JJ., concur.
Judgment set aside.
Notes.—Voluntary submission to jurisdiction of court bars right to contest the
same after receiving an adverse decision, (Solano vs. Court of Appeals, 126
SCRA122).
Presumption of innocence of accused until contrary is proved is under the
Constitution and the Rules of Court. (People vs. Simbulan, 124 SCRA 927).

——o0o—— Gimenez vs. Nazareno, 160 SCRA 1, No. L-37933 April 15, 1988

8. G.R. No. 116511. February 12, 1997.*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. COLOMA TABAG, SARENAS

TABAG, MARCELINO TABAG, FERNANDO MAGLINTE, JR., ARTEMIO AWOD,
LAUREÑO AWOD, ROMEO AGUIPO, LEOPOLDO LEONCIO and ERNESTO
MAWANG, accused. COLOMA TABAG** and SARENAS TABAG, accused-
appellants.

Evidence; Weight and Sufficiency of Evidence; The trial court convicted him
primarily on the basis of evidence for the prosecution.—The first assigned error is
without basis. The trial court convicted him primarily on the basis of the evidence
for the prosecution. If at all the trial court considered the weakness of the
evidence of the defense, it was merely to show that the massive proof of guilt was
not shakened by the “brazen and unmitigated lies of the accused and their
witnesses.”

Criminal Law; Conspiracy; Conspiracy need not be established by direct proof.—

Regarding Tabag’s second assigned error, we have held time and again that
conspiracy need not be established by direct proof. It may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts
of the accused themselves when such acts point to a joint purpose and design,
concerted action, and community of intent. It must, however, be shown to exist as
clearly and as convincingly as the offense itself.
Evidence; Circumstantial Evidence; Judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven constitute
an unbroken chain which leads to one fair and reasonable conclusion pointing to
the accused, to the exclusion of
all others, as the guilty person.—Indeed, Sarenas was not at the scene of the
massacre at the time it was committed. His alibi was firmly established not only
through his evidence but also by the testimony of prosecution witness Pablo Oca.
That fact, notwithstanding, we are convinced that Sarenas was not just a co-
conspirator; he was the mastermind of the massacre or the principal by
inducement. His role was established with moral certainty by weighty
circumstantial evidence. Under Section 4, Rule 133 of the Rules of Court,
circumstantial evidence is sufficient for conviction if: (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are proven; and
(c) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. As jurisprudentially formulated, a judgment of
conviction based on circumstantial evidence can be upheld only if the
circumstances proven constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all others, as
the guilty person, i.e., the circumstances proven must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and at the same
time, inconsistent with any other hypothesis except that of guilty.
Criminal Law; Murder; Treachery; Nothing justified the sudden and unprovoked
attack, at nighttime, on the Magdasals. The massacre was nothing but a merciless
vigilante-style execution.—In no way can Sarenas claim the privileges under
paragraphs 5 and 6, Article 11 of the Revised Penal Code, for the massacre of the
Magdasals can by no means be considered as done in the fulfillment of a duty or
in the lawful exercise of an office or in obedience to an order issued by a superior
for some lawful purpose. Other than “suspicion,” there is no evidence that
Welbino Magdasal, Sr., his wife Wendelyn, and their children were members of
the NPA. And even if they were members of the NPA, they were entitled to due
process of law. On that fateful night of 11 March 1984, they were peacefully
resting in their humble home expecting for the dawn of another uncertain day.
Clearly, therefore, nothing justified the sudden and unprovoked attack, at
nighttime, on the Magdasals. The massacre was nothing but a merciless vigilante-
style execution.
Evidence; Evident Premeditation; Evidence for the prosecution failed to satisfy the
three requisites of evident premeditation.—As to the circumstance which
qualified the killings to murders, we differ with the view of the trial court. It
should be treachery, not evident premeditation, as ruled by the latter. The
evidence for the prosecution failed to satisfy two of the three requisites of evident
premeditation, viz., (a) the time when Sarenas determined to commit the crime,
(b) a sufficient lapse of time between such determination and execution to allow
him to reflect upon the consequences of his act. On the other hand, treachery
was established beyond cavil. Accused Marcelino Tabag, Coloma Tabag, Fernando
Maglinte, Laureño Awod, Artemio Awod, and Romeo Aguipo suddenly fired their
high-powered firearms toward Welbino Magdasal, Sr., and thereafter, they went
upstairs and stabbed his wife Wendelyn and his children Welbino, Jr., and Melisa.
The victims, all unarmed, were caught by surprise and were in no position to offer
any defense. There can be no doubt in any one’s mind that the accused employed
means, methods, or forms in the execution of the killings which tended directly
and specially to ensure their execution, without risk to themselves arising from
the defense which the offended party might make.
Criminal Law; Aggravating Circumstance; Nighttime; Nighttime or nocturnity was
absorbed in treachery, since it was evidently an integral part of the peculiar
treacherous means and manner adopted to ensure the execution of the crimes, or
that facilitated the treacherous character of the attack.—The trial court likewise
erred in appreciating nighttime and band as generic aggravating circumstances.
Under the facts of this case, nighttime or nocturnity was absorbed in treachery,
since it was evidently an integral part of the peculiar treacherous means and
manner adopted to ensure the execution of the crimes, or that it facilitated the
treacherous character of the attack. Band or cuadrilla was likewise absorbed in
treachery.
Remedial Law; Trial in Absentia; Trial against the fugitives, like all of the others,
should have been brought to its ultimate conclusion.—The trial court also erred in
not proceeding with the case against Laureño Awod and Artemio Awod after their
successful escape on 19 October 1989 while in preventive detention. They had
already been arraigned. Therefore, pursuant to the last sentence of paragraph (2),
Section 14, Article III of the Constitution, trial against them should continue and
upon its termination, judgment should be rendered against them notwithstanding
their absence unless, of course, both accused have died and the fact of such death
is sufficiently established. Conformably with our decision in People v. Salas, their
escape should have been considered a waiver of their right to be present at their
trial, and the inability of the court to notify them of the subsequent hearings did
not prevent it from continuing with their trial. They were to be deemed to have
received notice. The same fact of their escape made their failure to appear
unjustified because they have, by escaping, placed themselves beyond the pale
and protection of the law. This being so, then pursuant to Gimenez v. Nazareno,
the trial against the fugitives, just like those of the others, should have been
brought to its ultimate conclusion. Thereafter, the trial court had the duty to rule
on the evidence presented by the prosecution against all the accused and to
render its judgment accordingly. It should not wait for the fugitives’ reappearance
or re-arrest. They were deemed to have waived their right to present evidence on
their own behalf and to confront and cross-examine the witnesses who testified
against them.
APPEAL from a decision of the Regional Trial Court of Tagum, Davao, Br. 2.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Rolando C. Rama for accused-appellant Sarenas Tabag.
DAVIDE, JR., J.:
At about 10:00 p.m. of 11 March 1984 in Sitio Candiis, Barangay Cabidianan, New
Corella, Davao, the spouses Welbino Magdasal, Sr., and Wendelyn Repalda
Magdasal, together with their children Welbino, Jr., and Melisa, were massacred
in their home allegedly by members of the Integrated Civilian Home Defense
Force (ICHDF).
On 14 March 1984, Aniceto Magdasal and Marciana Magdasal, parents of Welbino
Magdasal, Sr., reported the incident to the Municipal Mayor of Asuncion, Davao,
and to the police authorities of New Corella. They executed a joint affidavit on
that date “to request the authorities concerned to follow up said incident and to
conduct proper investigation to the end in view that justice will prevail.”1 Later,
they, together with one Lucrecio Dagohoy, executed sworn statements before the
police authorities of New Corella.2 Yet, the identities of the killers remained
unknown.
The first light on the case was shed on 27 February 1985 when Sergio Doctolero,
barangay captain of Buan, Asuncion, Davao, executed a sworn statement3
declaring that a member of the ICHDF, Romeo Guipo, had confessed to him that it
was the team led by Sarenas Tabag that massacred the Magdasals. The real break
came three days before the first anniversary of the massacre when Ernesto
Mawang, a member of that team, gave his sworn statement4 naming those
involved in the massacre. Not long after, another member thereof, one Pablo Oca,
likewise gave a sworn statement5 corroborating Mawang’s statements.
On 15 July 1985, an information for murder against accused Coloma Tabag,
Sarenas Tabag, Marcelino Tabag, Fernando Maglinte, Jr., Artemio Awod, Romeo
Aguipo, Leopoldo Leoncio, and Ernesto Mawang was filed with the Municipal Trial
Court (MTC) of New Corella, Davao.6 Accompanying the information were the
abovementioned joint affidavit, sworn statements, and death certificates of the
victims. The information was docketed as Criminal Case No. 897.7
After examining, through searching questions, witnesses Pablo Oca and Sergio
Doctolero, Judge Napy Agayan issued a warrant for the arrest of the accused. No
bond was recommended for their temporary liberty, since they were charged with
a capital offense and the evidence of guilt was strong.8 On 21 August 1985,
accused Sarenas Tabag surrendered to Judge Agayan.9 The others could not be
arrested; hence, an alias warrant for their arrest was issued.10
Sarenas Tabag waived submission of his counter-affidavit and preliminary
investigation. Finding probable cause against him, the MTC ordered on 28 August
1985 the transmittal of the record of the case to the Office of the Provincial Fiscal
and the commitment of Sarenas at the Provincial Jail.11
After appropriate proceedings, an information12 was filed with the Regional Trial
Court (RTC) of Tagum, Davao, charging the abovenamed accused with the crime of
multiple murder. The accusatory portion thereof reads as follows:
That on or about March 11, 1984, in the Municipality of New Corella, Province of
Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-
mentioned accused, all members of the ICHDF, conspiring, confederating and
mutually helping with Coloma Tabag, Marcelino Tabag, Fernando Maglinte, Jr.,
Artemio Awod, Laureño Awod, Romeo Aguipo, Leopoldo Leoncio and Ernesto
Mawang, who are all still at large, with treachery and evident premeditation and
with intent to kill, armed with garand, armalite and carbine, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot Welbino Magdasal,
Sr., Wendelyn Magdasal, Welbino Magdasal, Jr. and Melisa Magdasal, thereby
inflicting upon them injuries which caused their death and further causing actual,
moral and compensatory damages to the heirs of the victims.
The commission of the foregoing offense is attended by the aggravating
circumstance of superior strength, nighttime and in band committed with the aid
of armed men.
Contrary to law.
The case was docketed as Criminal Case No. 6364 and raffled to Branch 2 of the
said court.
Since the other accused had remained at large, the court proceeded with the case
against Sarenas Tabag only. At his arraignment on 11 December 1985, he entered
a plea of not guilty.
On 3 March 1987, the prosecution filed a motion to dismiss the case as against
Ernesto Mawang because it found after a thorough re-assessment of the
prosecution’s evidence that he “does not only appear to be less guilty, but he
appears not responsible in any way in the commission of the crime charged . . . .
[He] has not participated in the killing of the victims, he has not fired any shot nor
has lunged any bolo to the victims, and his presence in the crime scene was not
voluntary on his part.”14 The court granted the motion and ordered the
immediate release of Mawang from detention.15
In the meantime, accused Coloma Tabag, Artemio Awod, Laureño Awod, and
Romeo Aguipo were arrested.16 All of them entered a plea of not guilty at their
arraignment.17 On 19 October 1989, accused Laureño Awod and Artemio Awod,
together with three others, escaped from the Provincial Jail. Upon being informed
of this incident,18 the trial court continued the proceedings as against Sarenas
Tabag, Coloma Tabag, and Romeo Aguipo only.19
The witnesses presented by the prosecution were Pablo Oca, Sergio Doctolero,
Aniceto Magdasal, Pablo Babagonyo (a member of the Philippine National Police
[PNP]), Marciana Magdasal, and Enrique Bermejo (Administrative Officer of the
PNP of New Corella, Davao), with Doctolero recalled as rebuttal witness. On its
part, the defense presented Sarenas Tabag, Romeo Aguipo, Coloma Tabag, and
Alfredo Galocino, with Sarenas Tabag and one Ricardo Agrade called as sur-
rebuttal witnesses.
On 7 January 1992, the trial court promulgated its decision,20 dated 19 December
1991, the dispositive portion of which reads:
WHEREFORE, finding the accused Sarenas Tabag, Coloma Tabag and Romeo
Aguipo or Guipo guilty beyond reasonable doubt of the crime of four (4) counts of
Murder defined and penalized under Article 248 of the Revised Penal Code, for
the deaths of Welbino Magdasal, Sr., Wendelyn Magdasal, Welbino Magdasal, Jr.
and Melisa Magdasal, each of them is sentenced to suffer four (4) indivisible
prison terms of RECLUSION PERPETUA, to suffer all the accessory penalties
provided for by law and to pay the costs.
They are further condemned to jointly and severally indemnify the heirs of their
victims in the total sum of FOUR HUNDRED THOUSAND (P400,000.00) PESOS as
moral damages; SIX THOUSAND (P6,000.00) as attorney’s fees to Marciana
Magdasal, mother of the late Welbino Magdasal, Sr., and FOUR THOUSAND
(P4,000.00) PESOS as actual and compensatory damages.21
The material operative facts established by the evidence for the prosecution was
summarized by the Office of the Solicitor General in the Brief for the Appellee as
follows:
On March 11, 1984, at around 9:00 o’clock in the evening, Pablo Oca was in the
ICHDF detachment in Barangay Buan, Asuncion, Davao. (p. 5, TSN, September 10,
1986) Also present were Marcelino Tabag, appellant Sarenas Tabag, appellant
Coloma Tabag, Artemio Awod, Laureño Awod, Ernesto Mawang, Romeo Guipo
and Fernando Maglinte, Jr., all members of the ICHDF. (p. 6, Ibid.) While there,
appellant Sarenas talked to his son, Marcelino Tabag, and his brother, appellant
Coloma Tabag (Ibid.) Thereafter, Sarenas told the group to go on patrol. (pp. 7 and
14, Ibid.) Pablo asked
Marcelino where they were going but the latter kicked him in the buttocks, and
told him to “just keep quiet and follow.” (p. 15, Ibid.) Marcelino led the group to
Barangay Cadi-is, Asuncion,*** Davao. (p. 7, Ibid.) The group reached Cadi-is at
11:00 o’clock in the evening (p. 17, Ibid.). Upon reaching the house of Welbino
Magdasal, the group stood to observe for a while. (p. 12, TSN, January 18, 1988)
Pablo Oca was posted as lookout five meters away from the house. (p. 17, Ibid.
and p. 18, TSN, September 10, 1986)
After some time, Fernando Maglinte, Jr. went up the house and knocked at the
door. (p. 17, Ibid.) The door was opened and Welbino Magdasal went out of the
house. (p. 17, TSN, January 13, 1988) Marcelino ordered his companions to open
fire at Welbino. (p. 24, TSN, September 10, 1986) The children who were inside
the house started shouting. (p. 10, Ibid.) Three men from Marcelino’s group went
up the house and stabbed to death Welbino’s wife, Wendelyn, and their two
children, Welbino, Jr., and Melisa. (Ibid.)
After the massacre, Marcelino’s group went back to their detachment at Barangay
Buan. (Ibid.) Upon arrival, appellant Sarenas asked Marcelino, “Is it finished” to
which the latter answered, “Yes, it is finished.” (p. 11, Ibid.) Sarenas inquired
further, “Did you gather the ICHDF?” (Ibid.) Sarenas warned each member of
Marcelino’s group to keep quiet about the incident and threatened to shoot
whoever will squeal. (pp. 11, and 16, Ibid.)
As a result of the massacre, the entire family of Welbino died. Welbino’s mouth
was shattered and his intestines protruded out. (p. 9, TSN, April 12, 1989)
Wendelyn’s left leg and left arm were twisted. (Ibid.) Welbino, Jr. sustained
wounds on his face and stab wounds in his chest. (Ibid.) Melisa was likewise
wounded and died in the hospital. (Ibid.) A total of thirty-two empty shells of M16
spent bullets were recovered from the scene of the massacre. (p. 4, TSN, January
5, 1990)
This summary is faithfully borne out by the transcripts of the testimonies of the
prosecution witnesses; hence, we adopt it as our own.
It was further established through the testimony of Pablo Oca that after talking to
his son Marcelino and brother Coloma, Sarenas called for the other members of
the ICHDF and instructed them to go on patrol. While on the way to New Visayas,
Marcelino separated from the others. The latter, nevertheless, followed him to
Sitio Candiis and then to the house of the victims.
Alibi and denial were the defenses interposed by accused Sarenas Tabag, Coloma
Tabag, and Romeo Aguipo.
Sarenas Tabag was the head of the ICHDF team in question. He was enlisted into it
when he was the barangay captain of Buan, Asuncion, Davao. The team was to
serve only in the municipality of Asuncion; its specific “area of operation” were
the barangays of Buan, New Visayas, and Sunlon, all in Asuncion. All the members
of the team took orders from him.23 On 11 March up to 12 March 1984, he was
with Cpl. Gafod on a military operation of the 37th Infantry Battalion in New
Visayas and Sunlon, Asuncion, Davao. Aside from Cpl. Gafod, he was with Laureño
Awod, Artemio Awod, Marcelino Tabag, Ernesto Mawang, Fernando Maglinte, Jr.,
Pepito Tabag, and Cortez Tabag. Sarenas asserted that he could not have
conducted a briefing, as some of his men, particularly Coloma Tabag and Pablo
Oca, were in Mawab.24 Sarenas likewise denied having asked Marcelino after the
killing, “Human na?” and having threatened those who patrolled on that fateful
night that anybody who squeals would be shot with a clip of bullets. Sarenas also
testified that Pablo Oca could not have been at the detachment on the night of 11
March 1984, as he was relieved of his post as a member of the ICHDF as early as
24 December 1983 for having discharged seven clips from his garand rifle while
drunk.25 This then provided Oca’s motive to testify against him (Sarenas).26
Sarenas further declared that members of his family were massacred by
suspected members of the NPA.27
Coloma Tabag declared that on 11 March 1984, he was in Mawab, Davao del
Norte, panning for gold. He went there on 4 March 1984 with his two children.
Mawab is more than twenty kilometers away from Barangay Buan, Asuncion,
Davao del Norte.28
Romeo Aguipo testified that at 10:00 p.m. of 11 March 1984, he was at the copra
drier in Barangay Buan “watching the copra.” He said he was there from 9 March
to 12 March 1984. The copra drier was only two kilometers away from the ICHDF
detachment.29
The trial court gave full faith to the version of the prosecution and disregarded
that of the defense. As to the motive of accused Sarenas Tabag, the trial court
stated:
Fourth: Sarenas Tabag also declared that his family, sometime before March 11,
1984, was massacred and his suspects were the members of the New People’s
Army.
The Magdasals, who first resided in Buan, Asuncion, transferred to Sunlon,
Asuncion, which was infested with members of the New Peoples’ Army, according
to Sarenas Tabag.
Sunlon being infested with members of the New Peoples’ Army, Welbino
Magdasal, Sr. and/or his family could easily be suspected or he and his family must
be members of the New Peoples’ Army. Since the family of Sarenas Tabag was a
victim of a massacre
by the New Peoples’ Army, the killing of Welbino Magdasal, Sr. and the members
of his family must be the retaliation of Sarenas Tabag perpetrated through his
men who were ICHDF members.30
In support of its conclusion that four counts of murder were committed, the trial
court rationalized that
the deaths of Welbino Magdasal, Sr., Wendelyn Magdasal, Welbino Magdasal, Jr.
and Melisa Magdasal resulted not [from] a single act punishable as complex crime
under Article 48 of the Revised Penal Code but [from] a series of acts . . . with the
qualifying aggravating circumstances of either treachery, evident premeditation,
or superior strength having been taken advantage of.
It opted to consider evident premeditation to qualify the killing to “multiple
murder” and considered treachery, nighttime, and band as generic aggravating
circumstances.32
From the judgment of conviction, only accused Sarenas Tabag and Coloma Tabag
filed their notice of appeal.33
On 8 August 1995, after filing his Appellant’s Brief,34 accused Coloma Tabag died
at the Davao Prison and Penal Farm.35 Accordingly, in the resolution of 21
February 1996, we ordered the dismissal of the case against him.
Only the appeal of accused Sarenas Tabag is left for our determination.
In his Appellant’s Brief, accused Sarenas Tabag contends that the trial court erred
in
1. CONVICTING THE ACCUSED-APPELLANT SARENAS TABAG NOT BECAUSE OF THE
WEAKNESS OF THE PROSECUTION’S EVIDENCE BUT BECAUSE OF THE WEAKNESS
OF THE DFENSE’S EVIDENCE;
2. CONVICTING THE ACCUSED-APPELLANT SARENAS TABAG AS CONSPIRATOR OR
CONFEDERATE, THE ALLEGATION OF CONSPIRACY NOT HAVING BEEN
ESTABLISHED BEYOND REASONABLE DOUBT;
3. NOT ACQUITTING ACCUSED-APPELLANT SARENAS TABAG ON THE GROUND
THAT HE IS EXEMPTED FROM CRIMINAL LIABILITY UNDER ARTICLE II, (5) & (6), OF
THE REVISED PENAL CODE.
The first assigned error is without basis. The trial court convicted him primarily on
the basis of the evidence for the prosecution. If at all the trial court considered
the weakness of the evidence of the defense, it was merely to show that the
massive proof of guilt was not shakened by the “brazen and unmitigated lies of
the accused and their witnesses.”36
Regarding Tabag’s second assigned error, we have held time and again that
conspiracy need not be established by direct proof. It may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts
of the accused themselves when such acts point to a joint purpose and design,
concerted action, and community of intent.37 It must, however, be shown to exist
as clearly and as convincingly as the offense itself.38
Indeed, Sarenas was not at the scene of the massacre at the time it was
committed. His alibi was firmly established not only through his evidence but also
by the testimony of prosecution witness Pablo Oca. That fact, notwithstanding, we
are convinced that Sarenas was not just a co-conspirator; he was the mastermind
of the massacre or the principal by inducement. His role was established with
moral certainty by weighty circumstantial evidence.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence is
sufficient for conviction if: (a) there is more than one circumstance; (b) the facts
from which the inferences are derived are proven; and (c) the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt. As
jurisprudentially formulated, a judgment of conviction based on circumstantial
evidence can be upheld only if the circumstances proven constitute an unbroken
chain which leads to one fair and reasonable conclusion pointing to the accused,
to the exclusion of all others, as the guilty person, i.e., the circumstances proven
must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time, inconsistent with any other hypothesis
except that of guilty.39
In the instant case, the following circumstances were duly proven:
1. Sarenas was the leader of the ICHDF team in Barangay Buan, Asuncion, Davao.
2. Before the massacre in question, members of Sarenas’ family were massacred
by persons whom he believed were members of the NPA. Sarenas suspected the
Magdasals to be members of the NPA.40
3. Prosecution witness Pablo Oca and the other accused were members of
Sarenas’ team; as such, they took orders from Sarenas. On his cross-examination,
Sarenas proudly admitted of his authority to give orders.41
4. At about 9:00 p.m. of 11 March 1984, Sarenas’ team met at the ICHDF
Detachment in Barangay Buan where Sarenas gave a briefing to his son Marcelino
and brother Coloma.
5. After the briefing, Sarenas instructed the team to go on patrol in New Visayas
and “some distance away.” Marcelino and Coloma led the team.
6. The area of operation of Sarenas’ team is comprised of the barangays of Buan,
New Visayas, and Sunlon, all of Asuncion, Davao.
7. Somewhere along the way, instead of patrolling their area of operation,
Marcelino proceeded toward Sitio Candiis, Barangay Cabidianan, Asuncion, Davao.
8. Pablo asked Marcelino where they were going, but the latter kicked the former
on his buttocks and told him just to keep quiet and to follow.
9. Upon reaching Sitio Candiis, the team proceeded to the house of the victims.
Marcelino Tabag ordered Pablo Oca to serve as “look-out,” while Marcelino,
Coloma Tabag, Fernando Maglinte, Jr., Laureño Awod, Artemio Awod, and Romeo
Aguipo fired their garands toward the victims’ house. Then Marcelino, Coloma,
Laureño,
40 Accused Sarenas did not refute or deny in his Appellant’s Brief the trial court’s
finding that the Magdasals moved from Barangay Buan to Barangay Sunlon, an
NPA infested barangay, and that therefore they would easily be suspected as
members of the NPA; hence, the massacre was in retaliation for the massacre of
Sarenas’ family.
and Artemio went up the house and started stabbing Welbino’s wife and
children.42
10. After the massacre, the team returned to its detachment in Barangay Buan.
Upon arrival thereat, Sarenas asked his son Marcelino whether it was finished,
and the latter answered in the affirmative.43
11. After Marcelino made the report to his father that “it [was] finished,” the
members of the team were gathered. Sarenas forthwith warned them against
squealing, otherwise the squealer would be shot.44
From the foregoing, it is clear that Sarenas had the motive to eliminate Welbino
Magdasal, Sr., and his family. The briefing was on a matter which he could neither
openly discuss nor entrust to others who were not of his confidence. He thus
chose for the purpose no less than his son Marcelino and brother Coloma. Then,
as the subsequent developments showed, the briefing turned to none other than
an instruction to get rid of the Magdasal family or “to finish” them off. If it were
otherwise, Marcelino would not have led the team to a place outside of its area of
operation, or to Sitio Candiis of Barangay Cabidianan, in another municipality,
where the house of the victims was located. Sarenas knew exactly where
Marcelino should lead the team and what it was expected to do. He even waited
at the detachment in Barangay Buan for the team’s return, and upon its return he
asked Marcelino whether “it’s finished.” When Marcelino assured him that it was,
Sarenas warned the other members of the team not to talk about or reveal the
massacre, otherwise the squealer would be killed. None did, not until nearly a
year later.
All told, the concordant combination and cumulative effect45 of the foregoing
circumstances more than satisfy the requirements of Section 4, Rule 133 of the
Rules of Court.
In his third assigned error, accused Sarenas Tabag invokes paragraphs 5 and 6,
Article 11 of the Revised Penal Code, which provide for justifying circumstances.46
He contends that being a member of the ICHDF involved in the battle against
insurgency, he was in the performance of an official duty or function duly
authorized by law47 and that he is, therefore, exempt from criminal liability.
This assigned error is not predicated on a hypothesis that even granting arguendo
that he was a co-conspirator with the other accused in the massacre of the
Magdasals he would still be "exempt” from any criminal liability because he was in
the performance of an official duty or function duly authorized by law. Not being
so, he thus admits that he was a co-conspirator. The slip may be showing much, or
that the conscience has unwittingly told the truth. Yet, we shall not put Sarenas
on a bind or be too harsh to him for the imprecise formulation of this assigned
error.
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of
the Revised Penal Code, for the massacre of the Magdasals can by no means be
considered as done in the fulfillment of a duty or in the lawful exercise of an office
or in obedience to an order issued by a superior for some lawful purpose. Other
than “suspicion,” there is no evidence that Welbino Magdasal, Sr., his wife
Wendelyn, and their children were members of the NPA. And even if they were
members of the NPA, they were entitled to due process of law. On that fateful
night of 11 March 1984, they were peacefully
46 It provides:
ART. 11. Justifying circumstances.—The following do not incur any criminal
liability:
xxx
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office.
6. Any person who acts in obedience to an order issued by a superior for some
lawful purpose.
47 Brief for Accused-Appellant Sarenas Tabag, 15; Rollo, 51 et seq.
resting in their humble home expecting for the dawn of another uncertain day.
Clearly, therefore, nothing justified the sudden and unprovoked attack, at
nighttime, on the Magdasals. The massacre was nothing but a merciless vigilante-
style execution.
As to the crime committed, we agree with the trial court that in killing Welbino
Magdasal, Sr., his wife Wendelyn, and their children Welbino, Jr., and Melisa, the
accused committed four separate crimes of murder, which are charged in the
information. There was no challenge thereon on the ground that the information
charges more than one offense.48 Accordingly, the accused could be properly
convicted of four counts of murder.
As to the circumstance which qualified the killings to murders, we differ with the
view of the trial court. It should be treachery,49 not evident premeditation,50 as
ruled by the latter. The evidence for the prosecution failed to satisfy two of the
three requisites of evident premeditation, viz., (a) the time when Sarenas
determined to commit the crime, (b) a sufficient lapse of time between such
determination and execution to allow him to reflect upon the consequences of his
act.51 On the other hand, treachery was established beyond cavil. Accused
Marcelino Tabag, Coloma Tabag, Fernando Maglinte, Jr., Laureño Awod, Artemio
Awod, and Romeo Aguipo suddenly fired their high-powered firearms toward
Welbino Magdasal, Sr., and thereafter, they went upstairs and stabbed his wife
Wendelyn and his children Welbino, Jr., and Melisa. The victims, all unarmed,
were caught by surprise and were in no position to offer any defense. There can
be no doubt in any one’s mind that the accused employed means, methods, or
forms in the execution of the killings which tended directly and specially to ensure
their execution, without risk to themselves arising from the defense which the
offended party might make.52
The trial court likewise erred in appreciating nighttime and band as generic
aggravating circumstances. Under the facts of this case, nighttime or nocturnity
was absorbed in treachery, since it was evidently an integral part of the peculiar
treacherous means and manner adopted to ensure the execution of the crimes, or
that it facilitated the treacherous character of the attack.53 Band or cuadrilla was
likewise absorbed in treachery.54
Aside from disregarding nighttime and band as aggravating circumstances, we also
give accused Sarenas Tabag the benefit of the mitigating circumstance of
voluntary surrender. For, as evidenced by a certification issued by Judge Napy
Agayan, Sarenas Tabag voluntarily surrendered himself before the warrant for his
arrest was served on him. The penalty for murder at the time the accused
committed the four separate crimes of murder was reclusion temporal in its
maximum period to death. There being one mitigating circumstance without any
aggravating circumstance to offset it, and applying the Indeterminate Sentence
Law, the penalty imposable in each case is prision mayor in its maximum period to
reclusion temporal in its medium period, as minimum, to reclusion temporal in its
maximum period, as maximum.
As to the civil liabilities, the award of P400,000.00 “as moral damages” is not
correct. Current case law fixes the indemnity for death at P50,000.00. Moral
damages may also be recovered in criminal cases under Article 2219 of the Civil
Code. Marciana Magdasal, mother of Welbino Magdasal, Sr., left to the discretion
of the trial court the quantification of her sufferings caused by the death of her
son, daughter-in-law, and two grandchildren. Since Marciana’s husband did not
testify as to his moral suffering, any award for moral damages must be in favor of
Marciana only, and an award of P10,000.00 in each of the four counts of murder is
adequate. Hence, the total indemnity to be awarded to the heirs of the victims
shall be P200,000.00, and the aggregate moral damages to be awarded to
Marciana Magdasal shall be P40,000.00.
Finally, the trial court also erred in not proceeding with the case against Laureño
Awod and Artemio Awod after their successful escape on 19 October 1989 while
in preventive detention. They had already been arraigned. Therefore, pursuant to
the last sentence of paragraph (2), Section 14, Article III of the Constitution,55
trial against them should continue and upon its termination, judgment should be
rendered against them notwithstanding their absence unless, of course, both
accused have died and the fact of such death is sufficiently established.
Conformably with our decision in People v. Salas,56 their escape should have been
considered a waiver of their right to be present at their trial, and the inability of
the court to notify them of the subsequent hearings did not prevent it from
continuing with their trial. They were to be deemed to have received notice. The
same fact of their escape made their failure to appear unjustified because they
have, by escaping, placed themselves beyond the pale and protection of the law.
This being so, then pursuant to Gimenez v. Nazareno,57 the trial against the
fugitives, just like those of the others, should have been brought to its ultimate
conclusion. Thereafter, the trial court had the duty to rule on the evidence
presented by the prosecution against all the accused and to render its judgment
accordingly. It should not wait for the fugitives’ re-appearance or re-arrest. They
were deemed to have waived their right to present evidence on their own behalf
and to confront and cross-examine the witnesses who testified against them.
It is obvious that the trial court forgot our rulings in Salas and Nazareno. We thus
take this opportunity to admonish trial judges to abandon any cavalier stance
against accused who escaped after arraignment, thereby allowing the latter to
make a mockery of our laws and the judicial process. Judges must always keep in
mind Salas and Nazareno and apply without hesitation the principles therein laid
down, otherwise they would court disciplinary action.
the crime, usually must be, inferred by the court from proof of facts and
circumstances which, taken together, apparently indicates that they are merely
parts of some complete whole. (People vs. Miranday, 242 SCRA 620 [1995])
Nocturnity can only be considered when it is shown to have been deliberately
sought by the accused and it is ordinarily absorbed in treachery. (People vs.
Ronquillo, 247 SCRA 793 [1995]) People vs. Tabag, 268 SCRA 115, G.R. No. 116511
February 12, 1997

WHEREFORE, the appealed decision of Branch 2 of the Regional Trial Court of

Tagum, Davao, in Criminal Case No. 6364 is AFFIRMED, with the modification (1)
sentencing accused-appellant SARENAS TABAG in each of the four crimes to an
indeterminate penalty of Twelve (12) years and One (1) day of reclusion temporal,
as minimum, to Seventeen (17) years, Four (4) months, and One (1) day of
reclusion temporal, as maximum; and (2) deleting the award of P400,000.00 as
moral damages and awarding, in lieu thereof, (a) P200,000.00 as indemnity for the
deaths of Welbino Magdasal, Sr., Wendelyn Repalda Magdasal, Welbino
Magdasal, Jr., and Melisa Magdasal, payable to the heirs of the victims; and (b)
P40,000.00 as moral damages, payable to Marciana Magdasal. The Resolution of
21 February 1996 dismissing the case as against accused Coloma Tabag because of
his death is hereby reiterated.

The trial court is ordered to continue with the proceedings in Criminal Case No.
6364 as against accused Laureño Awod and Artemio Awod if they are still alive, in
accordance with the principles laid down in People v. Salas and Gimenez v.
Nazareno.

Costs against accused-appellant Sarenas Tabag.

SO ORDERED.
Narvasa (C.J., Chairman), Melo, Francisco and Panganiban, JJ., concur.
Judgment affirmed with modification.
Notes.—Direct proof is not essential to show conspiracy. The existence of the
assent of minds which is involved in a conspiracy may be, and from the secrecy of
9. G.R. No. 157331. April 12, 2006.*
ARNOLD ALVA, petitioner, vs. HON. COURT OF APPEALS, respondent.
Criminal Procedure; Bails; In cases where the prosecution proves, with notice to
the accused, the existence of any of the circumstances mentioned in Section 5,
Paragraph 3 of Rule 114 of the Rules of Court, the Court loses its discretion as it is
mandated to deny bail or cancel bail previously granted.—A definitive disposition
of the issue relating to the existence and validity of petitioner’s bail bond on
appeal presupposes that the latter was allowed by law to post bail
notwithstanding the RTC’s judgment of conviction and the imposition of the
penalty of imprisonment for an indeterminate period of nine (9) years and one (1)
day as minimum of prision mayor to seventeen (17) years as maximum of
reclusion temporal. Section 5 of Rule 114 of the 1994 Rules of Court, as amended,
intrinsically addresses the foregoing prefatory matter viz.: x x x From the
preceding quoted provision, the RTC is given the discretion to admit to bail an
accused even after the latter has been convicted to suffer the penalty of
imprisonment for a term of more than six (6) years but less than twenty (20)
years. However, the same also provides for the cancellation of bail bonds already
granted or the denial of a bail bond application upon the concurrence of two
points: 1) if the judgment of the Regional Trial Court exceeds six (6) years but not
more than twenty (20) years; and 2) upon a showing by the prosecution, with
notice to the accused, of the presence of any of the five circumstances therein
enumerated or other similar circumstances. This means to say that in cases when
the prosecution proves, with notice to the accused, the existence of any of the
circumstances mentioned in Section 5, Paragraph 3 of Rule 114 of the Rules of
Court, the Court loses its discretion as it is mandated to deny bail or to cancel the
bail previously granted.
Same; Same; Basic is the principle that the right to bail can only be availed of by a
person who is in custody of the law or otherwise deprived of his liberty and it
would be premature to file a petition for bail for someone whose freedom has yet
to be curtailed.—The posting of a bail bond presupposes that the accused and/or
accused-appellant is detained or in the custody of the law. In the case at bar, the
bench warrant issued by the RTC on 19 May 1999 remains unserved. Nothing in
the records of the case, neither in the RTC nor the Court of Appeals, demonstrates
that petitioner was ever arrested, as there has been no related Order of Release
issued by any court, or that he voluntarily surrendered or at the very least placed
himself under the custody of the law. Basic is the principle that that the right to
bail can only be availed of by a person who is in custody of the law or otherwise
deprived of his liberty and it would be premature, x x x, to file a petition for bail
for someone whose freedom has yet to be curtailed.
Same; Same; Approval of an application for bail on appeal, absent the knowledge
of the prosecution of such application or, at the very least, failing to allow it to
object, is not the product of sound judicial discretion but of impulse and
arbitrariness, not to mention violative of respondent People’s right of procedural
due process.—That the prosecution appears not to have been given the chance to
object, as evidently required under the quoted rule, to the application or approval
of the subject bail bond (with notice to the accused), fortifies the declaration as to
its invalidity. Nowhere in the original records of the RTC does it even show that
the prosecution was informed of petitioner’s application for bail, much less the
approval of such application. Noting that the raison d’être for such requirement is
the discretionary nature of the admission to bail of an accused after conviction,
though discretionary, such assessment must be exercised in accordance with
applicable legal principles. As when there is a concurrence of the enumerated
circumstances and the range of penalty imposed, the prosecution must first be
accorded an opportunity to object and present evidence, if necessary, with notice
to the accused. It is on this basis that judicial discretion is balanced in determining
whether or not an accused-appellant should be admitted to bail pending appeal
of his conviction vis-à-vis the increased possibility or likelihood of flight. Approval
of an application for bail on appeal, absent the knowledge of the prosecution of
such application or, at the very least, failing to allow it to object, is not the product
of sound judicial discretion but of impulse and arbitrariness, not to mention
violative of respondent People’s right of procedural due process.
Same; Same; The conviction of an accused to a period beyond six (6) years but
less than twenty (20) years in tandem with attendant circumstances violating his
bail without valid justification effectively precluded him from being admitted to
bail on appeal.—By failing to inform the RTC of his change of address, petitioner
failed to hold himself amenable to the orders and processes of the RTC. It was an
unmistakable arrant breach of the conditions of his bail bond. Prescinding from
the above discussion, the conviction of petitioner to a period beyond six (6) years
but less than twenty (20) years in tandem with attendant circumstances violating
his bail without valid justification should have effectively precluded him from
being admitted to bail on appeal.
Same; Same; Once an accused escapes from confinement or jumps bail or flees to
a foreign country, he losses his standing in court and unless he surrenders or
submits to the jurisdiction of the court he is deemed to have waived any right to
seek relief from the court.—As pointed out by the Court in the case of People v.
Mapalao, 197 SCRA 79, 87-88 (1991), the reason for said rule is that: [O]nce an
accused escapes from prison or confinement or jumps bail or flees to a foreign
country, he losses his standing in court and unless he surrenders or submits to the
jurisdiction of the court he is deemed to have waived any right to seek relief from
the court. Thus, the Court of Appeals committed no reversible error in dismissing
petitioner’s appeal. Within the meaning of the principles governing the prevailing
criminal procedure, petitioner impliedly withdrew his appeal by jumping bail and
thereby made the judgment of the RTC final and executory.
Same; Same; Jurisdictions; Custody of the Law; Words and Phrases; Custody of the
law is accomplished either by arrest or voluntary surrender while jurisdiction over
the person of the accused is acquired upon his arrest or voluntary appearance;
One can be under the custody of the law but not yet subject to the jurisdiction of
the court over his person.—For the resolution of the second issue, it should have
been sufficient to state that for reasons stated in the foregoing discussion, the
question posed has now become academic. However, to diminish the confusion
brought about by ostensibly equating the term “jurisdiction of the court (over the
person of the accused)” with that of “custody of the law,” it is fundamental to
differentiate the two. The term: Custody of the law is accomplished either by
arrest or voluntary surrender (citation omitted); while (the term) jurisdiction over
the person of the accused is acquired upon his arrest or voluntary appearance
(citation omitted). One can be under the custody of the law but not yet subject to
the jurisdiction of the court over his person, such as when a person arrested by
virtue of a warrant files a motion before arraignment to quash the warrant. On
the other hand, one can be subject to the jurisdiction of the court over his person,
and yet not be in the custody of the law, such as when an accused escapes
custody after his trial has commenced (citation omitted). Moreover, jurisdiction,
once acquired, is not lost at the instance of parties, as when an accused escapes
from the custody of the law, but continues until the case is terminated. Evidently,
petitioner is correct in that there is no doubt that the RTC already acquired
jurisdiction over the person of the accused petitioner—when he appeared at the
arraignment and pleaded not guilty to the crime charged—notwithstanding the
fact that he jumped bail and is now considered a fugitive.
Same; Same; Same; Same; Same; Being in the custody of the law signifies restraint
on the person, who is thereby deprived of his own will and liberty, binding him to
become obedient to the will of the law; A fugitive, until and unless he submits
himself to the custody of the law, in the manner of being under the jurisdiction of
the courts, cannot be granted any relief by the Court of Appeals.—As to whether
or not petitioner has placed himself under the custody of the CA, alas, we cannot
say the same for “[b]eing in the custody of the law signifies restraint on the
person, who is thereby deprived of his own will and liberty, binding him to
become obedient to the will of the law (citation omitted). Custody of the law is
literally custody over the body of the accused. It includes, but is not limited to,
detention.” In the case at bar, petitioner, being a fugitive, until and unless he
submits himself to the custody of the law, in the manner of being under the
jurisdiction of the courts, he cannot be granted any relief by the CA. Alva vs. Court
of Appeals, 487 SCRA 146, G.R. No. 157331 April 12, 2006
DECISION
CHICO-NAZARIO, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court,
as amended, assailing the twin Resolutions of the Court of Appeals (CA), dated 18
October 20021 and 19 February 2003,2 respectively, in CA-G.R. CR No. 24077,
entitled People of the Philippines v. Arnold Alva.
The CA, in the assailed resolutions, dismissed petitioner’s appeal of the trial
court’s judgment of conviction for failing to post a new bail bond to secure his
provisional liberty on appeal.
The Facts
The present petition stemmed from an Information3 charging petitioner with
having committed the crime of estafa defined under Article 315, Paragraph 2(a) of
the Revised Penal Code, alleging as follows:
The undersigned accuses ARNOLD ALVA of the crime of ESTAFA, committed as
follows:
That in or about and during the period covered between October 18, 1993 up to
December 18, 1993, inclusive, in the City of Manila, Philippines, the said accused,
did then and there willfully (sic), unlawfully and feloniously defraud YUMI
VERANGA y HERVERA in the following manner, to wit: the said accused, by means
of false manifestation and fraudulent representation which he made to said YUMI
VERANGA y HERVERA to the effect that he could process the latter’s application
for U.S. Visa provided she would give the amount of P120,000.00, and by means
of other similar deceit, induced and succeeded in inducing said YUMI VERANGA y
HERVERA to give and deliver, as in fact she gave and delivered to said accused the
amount of P120,000.00 on the strength of said manifestation and representation
said accused well knowing that the same were false and untrue for the reason
that the U.S. Visa is not genuine and were made solely to obtain, as in fact he did
obtain the amount of P120,000.00 which amount once in his possession with
intent to defraud, he wilfully (sic), unlawfully and feloniously misappropriated,
misapplied and converted the said amount to his own personal use and benefit, to
the damage and prejudice of the said YUMI VERANGA y HERVERA in the aforesaid
amount of P120,000.00, Philippine Currency.
CONTRARY TO LAW.
The resultant criminal case was filed and docketed as Criminal Case No. 95-
143803 and raffled to the Regional Trial Court (RTC) of Manila, Branch 54,
presided by Judge Manuel T. Muro.
On 5 September 1995, the RTC issued a Recall Order4 of the Warrant of Arrest
issued on 18 July 1995 against petitioner in view of the approval of his bail bond
by Hon. William Bayhon, then Executive Judge of the RTC of Manila.
Upon arraignment on 7 December 1995, petitioner, duly assisted by counsel,5
pleaded not guilty to the crime charged.
After the trial on the merits, in an Order6 dated 6 April 1998, the RTC considered
the case submitted for decision.
On 4 May 1999, petitioner’s counsel filed an Urgent Motion to Cancel
Promulgation7 praying for the resetting of the 5 May 1999 schedule of
promulgation of the RTC’s decision to 17 June 1999 in view of the fact that said
counsel already had a prior commitment on subject date. The RTC granted the
motion. The promulgation, however, was deferred only until 19 May 1999.
A day before the rescheduled date of promulgation, or on 18 May 1999,
petitioner’s counsel again moved for the deferment of the promulgation, due to
prior "undertakings of similar importance."8
On 19 May 1999, petitioner and counsel both failed to appear in court despite
due notice. In his stead, claiming to be petitioner’s representative, a certain Joey
Perez personally delivered to the RTC a hand written medical certificate9
expressing petitioner’s inability to attend the day’s hearing due to hypertension.
In response to the aforestated acts of petitioner and counsel, the RTC issued an
Order10 directing the promulgation of its decision in absentia and the issuance of
a bench warrant of arrest against petitioner for his failure to appear before it
despite due notice.
In its decision dated 25 March 1999,11 the RTC found petitioner guilty of the
crime of estafa under Article 315, paragraph 2(a) of the Revised Penal Code, the
decretal part of which reads:
WHEREFORE, judgment is hereby rendered: finding the accused guilty beyond
reasonable doubt of the crime of estafa under Article 315, No. 2(a) of the RPC and
sentences him to an indeterminate term of imprisonment of nine (9) years and
one (1) day as minimum of prision mayor to seventeen (17) years as maximum of
reclusion temporal in accordance with the provisions of Article 315, first, and the
Indeterminate Sentence Law, and further for the accused to return the
P120,000.00 to the complainant with an interest at the rate of twelve percent
(12%) compounded annually from January 1, 1994 (the amount has been given to
the accused in October and December 1993).
Meanwhile, as appearing in the records of the RTC, immediately following an
original duplicate copy of the aforequoted decision, a document entitled Personal
Bail Bond12 dated 21 May 1999 issued by Mega Pacific Insurance Corporation,
seemed to have been filed before and approved by the RTC as evidenced by the
signature of Judge Muro on the face of said bail bond.13 For such reason,
petitioner appeared to have been admitted to bail anew after his conviction.
Incongruous to the above inference, however, in an Order14 dated 25 May 1999,
judgment was rendered against Eastern Insurance and Surety Corporation, the
bonding company that issued petitioner’s original bail bond, in the amount of
P17,000.00, for failure to produce the person of petitioner within the 10 day
period earlier provided and to explain why the amount of its undertaking should
not be forfeited.
In the interregnum, Police Superintendent Ramon Flores De Jesus, Chief of
Warrant and Subpoena Section,15 manifested to the RTC the return of the
unexecuted Warrant of Arrest issued on 19 May 1999 "for the reason that the
address of the accused (petitioner) is not within our area of responsibility. x x x"
Nevertheless, De Jesus reassured the RTC that "the name of the accused will be
included in our list of wanted persons for our future reference." Examination of
the records of the case revealed that petitioner already moved out of his address
on record without informing the RTC.
On 15 July 1999, hand delivered by a certain Remedios Caneda, petitioner
wrote16 the RTC requesting for a certified photocopy of his exhibits submitted to
it during trial.
On 21 July 1999, a Termination of Legal Services was filed by petitioner before the
RTC informing it of his decision to terminate the services of his counsel and that
he was currently in the process of hiring a new one.
On 26 July 1999,17 petitioner filed a Motion for Reconsideration before the RTC.
In an Order18 dated 30 August 1999, the RTC declined to give due course to said
motion for failure to set it for hearing; thus, treating it as a mere scrap of paper.
On 2 September 1999, petitioner received the above Order. The next day, or on 3
September 1999, petitioner filed a Notice of Appeal19 before the RTC.
In an Order20 dated 20 September 1999, the RTC again declined to give due
course to the Notice of Appeal, ratiocinating thus:
The "Notice of Appeal" filed by accused cannot be given due course as it was filed
out of time. Although accused filed a "Motion for Reconsideration" dated 23 July
1999, the Court considered it as a mere scrap of paper and was not acted upon as
the same was not set for hearing, hence, it did not stop the reglementary period
to file appeal.
On 25 November 1999, petitioner filed anew a motion praying for the RTC’s
categorical resolution of his 23 July 1999 Motion for Reconsideration.
In an Order dated 7 December 1999, the RTC granted the abovestated motion, the
full text of which states:
The Motion to Resolve the Motion for Reconsideration of the accused, dated
November 20, 1999 is granted in the interest of justice, considering that the one
who prepared the Motion for Reconsideration appears to be the accused himself,
who may not appear to be a lawyer and may not be conversant with the rules,
among others, governing motions.
Acting on the said Motion for Reconsideration itself, same is denied for lack of
merit. The Decision has examined and discussed the evidence presented and the
merits of the case.
Because of the pendency of the Motion for Reconsideration, the appeal is
deemed filed on time, and the appeal is given due course.
Let the records of the case, together with three (3) copies of the transcripts of
stenographic notes be transmitted to the Hon. Court of Appeals.
On appeal before the Court of Appeals, in a Resolution21 dated 16 October 2001,
the appellate court required petitioner to show cause why his appeal should not
be dismissed it appearing that no new bail bond for his provisional liberty on
appeal had been posted, to wit:
Considering the arrest warrant issued by the trial court against the accused who
failed to appear at the promulgation of the judgment, and it appearing from the
record that no new bond for his provisional liberty on appeal has been posted,
appellant is ORDERED to SHOW CAUSE within ten (10) days from notice why his
appeal should not be dismissed outright.
On 29 October 2001, petitioner, through new counsel, filed a Compliance22
essentially stating therein that:
xxxx
3. Upon learning of the course of action taken by the presiding judge, and for
purposes of appealing the decision subject of the instant case, on May 21, 1999,
accused immediately posted a new bond for his provisional liberty. The presiding
judge of the lower court, which issued the questioned decision, duly approved the
new bond.1avvphil.net Certified true copy of the bond is hereto attached as
Annex "3" and made an integral part hereof;
x x x x.
In a Resolution23 dated 18 October 2002, the Court of Appeals, nonetheless
dismissed the appeal filed by petitioner for "appellant’s failure to post a new bond
for his provisional liberty on appeal despite our directive as contained in our
Resolution dated October 16, 2001, and in view of the fact that his personal bail
bond posted in the lower court had already expired, x x x."
Undaunted, petitioner filed a Motion for Reconsideration24 thereto seeking its
reversal. According to petitioner’s counsel, he was of the understanding that the
"Show Cause" Resolution of 16 October 2001 merely sought an explanation vis-à-
vis the absence of a bail bond guaranteeing petitioner’s provisional liberty while
his conviction was on appeal. All the same, petitioner’s counsel manifested that
Mega Pacific Insurance Corporation, had already extended the period covered by
its 21 May 1999 bail bond. Attached to said motion was a Bond Endorsement25
extending the coverage of the bail bond from 21 May 1999 to 21 May 2003.
Asked to comment on the Motion for Reconsideration, respondent People of the
Philippines (People), through the Office of the Solicitor General (OSG), interposed
objections. In its Comment,26 respondent People raised two arguments: 1) that
"an application for bail can only be availed of by a person who is in the custody of
the law or otherwise deprived of his liberty;" and 2) that "bail on appeal is a
matter of discretion when the penalty imposed by the trial court is imprisonment
exceeding six (6) years."
On 19 February 2003, the Court of Appeals issued the second assailed
Resolution,27 disposing of petitioner’s motion as follows:
Finding no merit in appellant’s motion for reconsideration (citation omitted) filed
on November 12, 2002, the same is hereby DENIED. We agree with the appellee
that appellant has failed to submit himself under the jurisdiction of the court or
under the custody of the law since his conviction in 1999 and that there was no
valid bail bond in place when appellant took his appeal.
WHEREFORE, appellant’s motion for reconsideration is DENIED. [Emphasis
supplied.]
Hence, this petition.
The Issues
Petitioner now comes to this Court via a petition for review on certiorari under
Rule 45 of the Rules of Court alleging the following errors:28
I.
THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN
A WAY NOT IN ACCORD WITH LAW OR WITH APPLICABLE DECISIONS OF THIS
HONORABLE SUPREME COURT;
II.
THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THE
PETITION DOCKETED AS CA G.R. CR NO. 24077 ON THE GROUND OF ALLEGED
FAILURE TO POST A NEW BOND FOR PETITIONER’S PROVISIONAL LIBERTY AND
THAT THE PERSONAL BAIL BOND POSTED IN THE LOWER COURT HAD ALLEGEDLY
ALREADY EXPIRED;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN IT DID NOT CONSIDER AS SUBSTANTIAL, THE
COMPLAINCE FILED BY THE PETITIONER WHICH SHOWED THE FACT THAT INDEED
THERE WAS A BAIL BOND FILED FOR THE PROVISIONAL LIBERTY OF THE ACCUSED
DURING THE PENDENCY OF THE APPEAL;
IV.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN IT IGNORED THE RECENT BAIL BOND EXTENSION
ATTACHED TO THE MOTION FOR RECONSIDERATION FILED BY THE PETITIONER;
V.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT THE PETITIONER FAILED TO SUBMIT
TO THE JURISDICTION OF THE COURT OR TO THE CUSTODY OF LAW DESPITE THE
BAIL BOND POSTED ON MAY 21, 1999; and
VI.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT THERE WAS NO VALID BAIL BOND IN
PLACE WHEN THE PETITIONER TOOK HIS APPEAL.
The bombardment of errors notwithstanding, only two issues are raised in this
petition: 1) with the exception of the fifth assignment of error, all six can be
encapsulated in one solitary question, that is, whether or not the Court of Appeals
committed reversible error in dismissing the appeal in view of petitioner’s alleged
failure to post a valid bail bond to secure his provisional liberty on appeal; and 2)
whether or not petitioner failed to submit himself to the jurisdiction of the court
or to the custody of the law despite the posting of the subject bail bond.
The Court’s Ruling
Petitioner faults the appellate court for expressing "x x x in its questioned
resolutions that herein petitioner did not submit to the jurisdiction of the court or
custody of the law, or that there was no valid bail bond when the appeal was
taken when the records of the case would readily prove the contrary."29 In issuing
said resolution, petitioner concludes that the Court of Appeals made "x x x no
careful examination of the records x x x." Petitioner rationalizes his deduction in
the following manner:
x x x [T]he records of the case readily reveals (sic) that several pleadings were filed
by the petitioner before the lower court even after the promulgation of judgment
was made. Right after the promulgation of the decision in the lower court, herein
petitioner went to the court and posted a bail bond. If the posting of the bond
which was approved by the same Regional Trial Court who rendered the decision
subject of appeal is not yet a submission to the jurisdiction of the court, then the
respondent Hon. Court of Appeals must have been thinking of another matter
beyond the comprehension of the petitioner and obviously outside the matters
being contemplated by law and the Rules of Court.
Equally, petitioner further posits that:
x x x Although it is respectfully submitted that an accused shall be denied bail or
his bail shall be cancelled if sentenced to an imprisonment exceeding six (6) years
as provided in Section 5, Rule 114 of the Rules of Court, just the same, there must
be a showing by the prosecution with notice to the accused of the fact that, the
accused is a recidivist, has previously escaped from confinement, evaded
sentence, has committed an offense while under probation, there are
circumstances indicating the probability of flight if released on bail, etc. But there
was none of the said instances that may be attributable to herein petitioner.30
Respondent People, in contrast, counters that "x x x [a]lthough a personal bail
bond dated May 21, 1999 was executed in favor of petitioner by Mega Pacific
Insurance Corporation two days after the promulgation of the Decision, there is
nothing on record which shows that petitioner had surrendered, was arrested or
otherwise deprived of his liberty after the promulgation of the judgment of his
conviction in his absence. x x x." To illustrate its point, respondent People cites the
following facts: 1) the return of the Warrant of Arrest issued on May 19, 1999
signed by P/Superintendent Ramon Flores De Jesus, Chief of Warrant and
Subpoena Section, which states in full:
Respectfully returned this unexecuted Warrant of Arrest for the reason that the
address of the accused is not within our area of responsibility. Further request
that the warrant of Arrest be forwarded to the Police Station which has
Jurisdiction over the address of the accused.
However, the name of the accused will be included in our list of wanted persons
for our future reference.
2) the fact that six days after the decision of the RTC was promulgated, or on 25
May 1999, said court rendered judgment against the bail bond issued by Eastern
Assurance and Surety Corporation executed to secure petitioner’s provisional
liberty during the trial, for the bondsman’s failure to produce petitioner before
the court, to wit:
In view of the failure of Eastern Insurance & Surety Corporation, bondsman of
herein accused, to produce the herein accused within the period granted it by this
Court, judgment is hereby rendered against said bond in the amount of Seventeen
Thousand (P17,000.00) Pesos.31
Respondent People explains that the first two facts make it improbable to
conclude that there existed a valid bail bond securing petitioner’s provisional
liberty even after conviction. Stated in another way, petitioner’s admission to bail
presumes that the latter surrendered, was arrested or he had otherwise
submitted himself under the custody of the law.
And, 3) "that petitioner belatedly attached a bond endorsement to his motion for
reconsideration dated November 7, 2002 submitted before the Court of Appeals,
purportedly to extend the expired personal bond dated May 21, 1999 x x x, did
not automatically confer on petitioner the benefits of an effective bail bond,"32 as
petitioner made no extension of the previous personal bond before the same
expired.
We disagree in petitioner’s assertions; hence, the petition must fail.
A definitive disposition of the issue relating to the existence and validity of
petitioner’s bail bond on appeal presupposes that the latter was allowed by law to
post bail notwithstanding the RTC’s judgment of conviction and the imposition of
the penalty of imprisonment for an indeterminate period of nine (9) years and
one (1) day as minimum of prision mayor to seventeen (17) years as maximum of
reclusion temporal.
Section 5 of Rule 114 of the 1994 Rules of Court, as amended, intrinsically
addresses the foregoing prefatory matter viz:
SEC. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of
an offense not punishable by death, reclusion perpetua or life imprisonment, the
court, on application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional
liberty under the same bail bond during the period to appeal subject to the
consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years, but not
more than twenty (20) years, the accused shall be denied bail, or his bail
previously granted shall be cancelled, upon a showing by the prosecution, with
notice to the accused, of the following or other similar circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstances of reiteration;
(b) That the accused is found to have previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his bail without valid
justification;
(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;
(d) That the circumstances of the accused or his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that during the pendency of the appeal, the accused
may commit another crime.
The appellate court may review the resolution of the Regional Trial Court, on
motion and with notice to the adverse party. [Emphasis supplied.]
From the preceding quoted provision, the RTC is given the discretion to admit to
bail an accused even after the latter has been convicted to suffer the penalty of
imprisonment for a term of more than six (6) years but less than twenty (20)
years. However, the same also provides for the cancellation of bail bonds already
granted or the denial of a bail bond application upon the concurrence of two
points: 1) if the judgment of the Regional Trial Court exceeds six (6) years but not
more than twenty (20) years; and 2) upon a showing by the prosecution, with
notice to the accused, of the presence of any of the five circumstances therein
enumerated or other similar circumstances.
In the case at bar, petitioner was convicted by the RTC to suffer the penalty of
imprisonment for an indeterminate term of nine (9) years and one (1) day as
minimum of prision mayor to seventeen (17) years as maximum of reclusion
temporal. Quite clearly, the approval of petitioner’s application for bail was
discretionary upon the RTC.
It is incongruous, to say the least, that the posting of a bail presupposes that the
accused and/ or accused-appellant is detained or in the custody of the law.33 In
the case at bar, the bench warrant issued by the RTC on 19 May 1999 still remains
unserved. Nothing in the records of the case, neither in the RTC nor the Court of
Appeals, demonstrates that petitioner was ever arrested, as there has been no
related Order of Release issued by any court, or that he voluntarily surrendered or
at the very least placed himself under the custody of the law.
Basic is the principle that that the right to bail can only be availed of by a person
who is in custody of the law or otherwise deprived of his liberty and it would be
premature, x x x, to file a petition for bail for someone whose freedom has yet to
be curtailed.34
All told, no bail should have been granted petitioner. It is beyond dispute that the
subject bail bond issued by Mega Pacific Insurance Corporation was irregularly
approved. Worth noting is the fact that nowhere in the records of the case is it
shown that petitioner applied for bail through a motion duly filed for such
purpose nor is there showing that the RTC issued an Order of Approval or any
other court process acknowledging such document. Be that as it may, even
granting for the sake of argument that it was indeed approved by Judge Muro,
such approval did not render the subject bail bond valid and binding for it has
been established that petitioner was not entitled to bail on appeal.
That the prosecution appears not to have been given the chance to object, as
evidently required under the quoted rule, to the application or approval of the
subject bail bond (with notice to the accused), fortifies the declaration as to its
invalidity. Nowhere in the original records of the RTC does it even show that the
prosecution was informed of petitioner’s application for bail, much less the
approval of such application.
Noting that the raison d'être for such requirement is the discretionary nature of
the admission to bail of an accused after conviction, though discretionary, such
assessment must be exercised in accordance with applicable legal principles. As
when there is a concurrence of the enumerated circumstances and the range of
penalty imposed, the prosecution must first be accorded an opportunity to object
and present evidence, if necessary, with notice to the accused. It is on this basis
that judicial discretion is balanced in determining whether or not an accused-
appellant should be admitted to bail pending appeal of his conviction vis-à-vis the
increased possibility or likelihood of flight.
Approval of an application for bail on appeal, absent the knowledge of the
prosecution of such application or, at the very least, failing to allow it to object, is
not the product of sound judicial discretion but of impulse and arbitrariness, not
to mention violative of respondent People’s right of procedural due process.
This is especially true in this case as a close scrutiny of the original records of the
case at bar reveals that petitioner violated the conditions of his bail without valid
justification – his failure to appear before the RTC, despite due notice, on the day
of the promulgation of the latter’s judgment, absent any justifiable reason. His
absence was a clear contravention of the conditions of his bail bond to say the
least. As evidenced by the undertaking printed on the face of the bond issued by
Eastern Insurance and Surety Corporation and likewise required under Section 635
of Rule 120 of the Rules of Court, petitioner must present himself before the court
for the reading of the judgment of the RTC in order to render himself to the
execution thereof.
While, indeed, a medical certificate was hand delivered and filed by a certain Joey
Perez, allegedly a representative of petitioner, stating therein the reason for the
latter’s absence, the RTC found insubstantial the explanation proffered.
Appropriately, it ordered the promulgation of its judgment in absentia. It also
issued a bench warrant of arrest against petitioner.
Upon examination, the subject medical certificate36 merely states that petitioner
was diagnosed to be suffering from hypertension. It failed to elucidate further any
concomitant conditions necessitating petitioner’s physical incapability to present
himself before the court even for an hour or two; thus, it considered the absence
of petitioner unjustified. What's more, though notarized, the subject document
failed to indicate evidence of affiant’s37 identity making its due execution
doubtful.
Further, it should be recalled as well, that as early as 4 May 1999, petitioner and
counsel had already been notified of the 19 May 1999 schedule of promulgation.
The first having been postponed in view of the Urgent Motion to Cancel
Promulgation (on 5 May 1999) filed by petitioner’s counsel.
Another telling evidence of the violation of petitioner’s original bail bond is
revealed by the Process Server’s Return,38 indicated at the dorsal portion of the
RTC’s Produce Order, indicating petitioner’s change of address without prior
notice to the RTC, it states:
PROCESS SERVER’S RETURN
This certifies that on the 17th day of May, (sic) 1999, undersigned return (sic)
again to Fersal Apartelle located at 130 Kalayaan Ave. (sic) Diliman, Quezon City
for confirmation and indeed the addressee, Arnold Alva, had no (sic) longer been
residing nor holding office at the aforementioned address.
By failing to inform the RTC of his change of address, petitioner failed to hold
himself amenable to the orders and processes of the RTC. It was an unmistakable
arrant breach of the conditions of his bail bond.
Prescinding from the above discussion, the conviction of petitioner to a period
beyond six (6) years but less than twenty (20) years in tandem with attendant
circumstances effectively violating his bail without valid justification should have
effectively precluded him from being admitted to bail on appeal
The issue of the validity of petitioner’s bail bond on appeal having been laid to
rest by Section 5 of Rule 114 of the 1994 Rules of Court, as amended, petitioner’s
alleged failure to post a bail bond on appeal is, therefore, inconsequential as,
under the circumstances, he is disallowed by law to be admitted to bail on appeal.
Thus, for all legal intents and purposes, there can be no other conclusion than
that at the time petitioner filed his notice of appeal and during the pendency of
his appeal – even until now – he remains at large, placing himself beyond the pale,
and protection of the law.
Inexorably, having jumped bail and eluded arrest until the present, the issue of
whether or not petitioner has lost his right to appeal his conviction now ensues.
The manner of review of petitioner’s conviction is governed by the Rules of Court.
Appropriately, Rule 124 of the Rules of Court presents the procedural
requirements regarding appeals taken to the Court of Appeals. Section 8 of said
Rule finds application to the case at bar, viz:
SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. – The
appellate court may, upon motion of the appellee or its own motion and notice to
the appellant, dismiss the appeal if the appellant fails to file his brief within the
time prescribed by this Rule, except in case the appellant is represented by a
counsel de oficio.
The court may also, upon motion of the appellee or on its own motion, dismiss
the appeal if the appellant escapes from prison or confinement or jumps bail or
flees to a foreign country during the pendency of the appeal. [Emphasis supplied.]
By virtue of the second paragraph of the abovequoted provision, the act of
jumping bail, among otherthings, will result in the outright dismissal of
petitioner’s appeal. As pointed out by the Court in the case of People v.
Mapalao,39 the reason for said rule is that:
[O]nce an accused escapes from prison or confinement or jumps bail or flees to a
foreign country, he losses his standing in court and unless he surrenders or
submits to the jurisdiction of the court he is deemed to have waived any right to
seek relief from the court.
Thus, the Court of Appeals committed no reversible error in dismissing
petitioner’s appeal. Within the meaning of the principles governing the prevailing
criminal procedure, petitioner impliedly withdrew his appeal by jumping bail and
thereby made the judgment of the RTC final and executory.40
By putting himself beyond the reach and application of the legal processes of the
land, petitioner revealed his contempt of the law and placed himself in a position
to speculate at his pleasure his chances for a reversal. This, we cannot condone.
Once more, by jumping bail, petitioner has waived his right to appeal. In the case
of People v. Ang Gioc,41 we enunciated that:
There are certain fundamental rights which cannot be waived even by the accused
himself, but the right of appeal is not one of them. This right is granted solely for
the benefit of the accused. He may avail of it or not, as he pleases. He may waive
it either expressly or by implication. When the accused flees after the case has
been submitted to the court for decision, he will be deemed to have waived his
right to appeal from the judgment rendered against him x x x.
Coming now to the second issue of whether or not petitioner failed to submit
himself to the jurisdiction of the court or to the custody of the law, despite the
posting of the subject bail bond, petitioner argues that his act of filing several
pleadings after the promulgation of the RTC’s judgment plus his filing of the
application for his admission to bail should be considered a submission to the
court’s jurisdiction. He rationalizes that:
[T]he records of the case readily reveals that several pleadings were filed by the
petitioner before the lower court even after the promulgation of judgment was
made. Right after the promulgation of the decision in the lower court, herein
petitioner went to the court and posted a bail bond. If the posting of the bond
which was approved by the same Regional Trial Court who rendered the decision
subject of appeal is not yet a submission to the jurisdiction of the court, then the
respondent Hon. Court of Appeals must have been thinking of another matter
beyond the comprehension of the petitioner and obviously outside the matters
being contemplated by law and the Rules of Court.
For the resolution of the second issue, it should have been sufficient to state that
for reasons stated in the foregoing discussion, the question posed has now
become academic. However, to diminish the confusion brought about by
ostensibly equating the term "jurisdiction of the court (over the person of the
accused)" with that of "custody of the law", it is fundamental to differentiate the
two. The term:
Custody of the law is accomplished either by arrest or voluntary surrender
(citation omitted); while (the term) jurisdiction over the person of the accused is
acquired upon his arrest or voluntary appearance (citation omitted). One can be
under the custody of the law but not yet subject to the jurisdiction of the court
over his person, such as when a person arrested by virtue of a warrant files a
motion before arraignment to quash the warrant. On the other hand, one can be
subject to the jurisdiction of the court over his person, and yet not be in the
custody of the law, such as when an accused escapes custody after his trial has
commenced (citation omitted).42
Moreover, jurisdiction, once acquired, is not lost at the instance of parties, as
when an accused escapes from the custody of the law, but continues until the
case is terminated.43 Evidently, petitioner is correct in that there is no doubt that
the RTC already acquired jurisdiction over the person of the accused petitioner –
when he appeared at the arraignment and pleaded not guilty to the crime
charged – notwithstanding the fact that he jumped bail and is now considered a
fugitive.
As to whether or not petitioner has placed himself under the custody of the CA,
alas, we cannot say the same for "[b]eing in the custody of the law signifies
restraint on the person, who is thereby deprived of his own will and liberty,
binding him to become obedient to the will of the law (citation omitted). Custody
of the law is literally custody over the body of the accused. It includes, but is not
limited to, detention."44 In the case at bar, petitioner, being a fugitive, until and
unless he submits himself to the custody of the law, in the manner of being under
the jurisdiction of the courts, he cannot be granted any relief by the CA.
Parenthetically, we cannot end this ponencia without calling attention to a very
disturbing fact – that petitioner admits of being the author of a falsified public
document was treated nonchalantly by authorities.
In fine, the petitioner has remained at large even as he hopes that his appeal, and
consequently, this petition, will succeed and he can then appear before the Court
to claim his victory. He hopes in vain.
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed
Resolutions of the Court of Appeals, in CA-G.R. CR No. 24077, which dismissed
petitioner’s appeal, are hereby AFFIRMED. In this connection, Judge Manuel Muro
is DIRECTED to issue forthwith a warrant of arrest for the apprehension of
Petitioner Arnold Alva and for proper disposition of the case in line with the
foregoing discussion.
Costs against the petitioner.
SO ORDERED.
 10. G.R. No. 192898. January 31, 2011.*
SPOUSES ALEXANDER TRINIDAD and CECILIA TRINIDAD, petitioners, vs. VICTOR
ANG, respondent.
Criminal Procedure; Arraignment; The pendency of a petition for review is a
ground for suspension of the arraignment for a period of 60 days reckoned from
the filing of the petition with the reviewing office.—In Samson v. Daway, 434 SCRA
612 (2004), the Court explained that while the pendency of a petition for review is
a ground for suspension of the arraignment, the aforecited provision limits the
deferment of the arraignment to a period of 60 days reckoned from the filing of
the petition with the reviewing office. It follows, therefore, that after the
expiration of said period, the trial court is bound to arraign the accused or to deny
the motion to defer arraignment. In the present case, the petitioners filed their
petition for review with the DOJ on October 10, 2007. When the RTC set the
arraignment of the petitioners on August 10, 2009, 1 year and 10 months had
already lapsed. This period was way beyond the 60-day limit provided for by the
Rules. Trinidad vs. Ang, 641 SCRA 214, G.R. No. 192898 January 31, 2011
BRION, J.:
We resolve the motion for reconsideration filed by petitioner spouses Alexander
Trinidad and Cecilia Trinidad (petitioners) to challenge our Resolution of
September 29, 2010. Our Resolution denied the petition for review on certiorari
for its failure to state the material dates of receipt of the order1 of the Regional
Trial Court (RTC), Branch 44, Masbate City, and of filing the motion for
reconsideration, in violation of Sections 4(b)2 and 5,3 Rule 45, in relation to
Section 5(d),4 Rule 56 of the Rules of Court.
Antecedent Facts
On September 3, 2007, the Office of the City Prosecutor, Masbate City, issued a
Resolution recommending the filing of an Information for Violation of Batas
Pambansa Bilang 22 against the petitioners. On October 10, 2007, the petitioners
filed with the Department of Justice (DOJ) a petition for review challenging this
Resolution.
On March 3, 2009, the Office of the City Prosecutor filed before the Municipal
Trial Court in Cities (MTCC), Fifth Judicial Region, Masbate City, an Information for
Violation of Batas Pambansa Bilang 22 against the petitioners. As the case was
covered by the Rules on Summary Procedure, the MTCC ordered the petitioners
to submit their counter affidavits and to appear in court within 10 days from
receipt of the said order.
The petitioners filed a Manifestation and Motion to Defer Arraignment and
Proceedings and Hold in Abeyance the Issuance of Warrants of Arrest5 praying,
among others, for the deferment of their arraignment in view of the pendency of
their petition for review before the DOJ.
The MTCC, in its Order6 dated May 28, 2009, granted the motion, "subject x x x to
paragraph c[,] Section 11, Rule 116 of the Revised Rules of Criminal Procedure."
On August 10, 2009, the MTCC reconsidered this order, and set the petitioners’
arraignment on September 10, 2009.7
The petitioners filed a petition for certiorari before the RTC, docketed as SCA No.
05-2009. The RTC, in its decision8 of January 6, 2010, denied this petition. The
petitioners moved to reconsider this decision, but the RTC denied their motion in
its order9 dated July 5, 2010.
The RTC held that the MTCC judge did not err in setting the arraignment of the
petitioners after the lapse of one (1) year and ten (10) months from the filing of
the petition for review with the DOJ. It explained that the cases cited by the
petitioners were decided before the amendment of the Revised Rules of Criminal
Procedure. After the amendment of the Rules on December 1, 2000, the Supreme
Court applied the 60-day limit on suspension of arraignment in case of a
pendency of a petition for review with the DOJ.
The petitioners filed with this Court a petition for review on certiorari essentially
claiming that the 60-day limit on suspension of arraignment is only a general rule.
They cited several cases to show that the arraignment of an accused should be
deferred until the petition for review with the DOJ is resolved.
As earlier stated, we denied the petition for its failure to state the material dates
of receipt of the assailed RTC order and of filing the motion for reconsideration.
The Motion for Reconsideration
In the present motion for reconsideration, the petitioners claim that the date of
receipt of the assailed RTC order was stated in the petition. The petitioners
further state that they filed the motion for reconsideration on January 2, 2010.
The Court’s Ruling
We grant the motion for reconsideration and reinstate the petition for review on
certiorari.
A careful examination of the petition reveals that it stated the date when the
petitioners received a copy of the RTC’s assailed order. In addition, the petitioners’
failure to state the material date of filing the motion for reconsideration is only a
formal requirement that warrants the relaxation of the rules in accordance with
the liberal spirit pervading the Rules of Court and in the interest of justice.
Nevertheless, we resolve to deny the petition for its failure to show any reversible
error in the challenged RTC order.
The grounds for suspension of arraignment are provided under Section 11, Rule
116 of the Rules of Court, which provides:
SEC. 11. Suspension of Arraignment. – Upon motion by the proper party, the
arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either
the
Department of Justice, or the Office of the President; Provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office.
In Samson v. Daway,10 the Court explained that while the pendency of a petition
for review is a ground for suspension of the arraignment, the aforecited provision
limits the deferment of the arraignment to a period of 60 days reckoned from the
filing of the petition with the reviewing office. It follows, therefore, that after the
expiration of said period, the trial court is bound to arraign the accused or to deny
the motion to defer arraignment.
In the present case, the petitioners filed their petition for review with the DOJ on
October 10, 2007. When the RTC set the arraignment of the petitioners on August
10, 2009, 1 year and 10 months had already lapsed. This period was way beyond
the 60-day limit provided for by the Rules.
In addition, the cases cited by the petitioners – Solar Team Entertainment, Inc. v.
How,11 Roberts, Jr. v. CA,12 and Dimatulac v. Villon13 – were all decided prior to
the amendment to Section 11 of the Revised Rules of Criminal Procedure which
took effect on December 1, 2000. At the time these cases were decided, there was
no 60-day limit on the suspension of arraignment.1âwphi1
WHEREFORE, premises considered, the Court resolves to:
(1) GRANT the present motion for reconsideration, and REINSTATE the petition for
review on certiorari; and
(2) DENY the said petition for petitioners’ failure to show any reversible error in
the challenged RTC order.
SO ORDERED.

11. G.R. No. 81561. January 18, 1991.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANDRE MARTI, accused-
appellant.
Constitutional Law; Bill of Rights; Searches and Seizures; Evidence; The
constitutional protection against unreasonable searches and seizures refers to the
immunity of one’s person from interference by government; it cannot be
extended to acts committed by private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the government.—In the absence of
governmental interference, the liberties guaranteed by the Constitution cannot be
invoked against the State. As this Court held in Villanueva v. Querubin (48 SCRA
345 [1972]: “1. This constitutional right (against unreasonable search and seizure)
refers to the immunity of one’s person, whether citizen or alien, from interference
by government, included in which is his residence, his papers, and other
possessions. xxx “xxx There the state, however powerful, does not as such have
the access except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain from any
invasion of his dwelling and to respect the privacies of his life. xxx” (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US
616 [1886]; Italics supplied). In Bureau v. McDowell (256 US 465 (1921), 41 S Ct.
574; 65 L.Ed. 1048), the Court there in construing the right against unreasonable
searches and seizures declared that: “(t)he Fourth Amendment gives protection
against unlawful searches and seizures, and as shown in previous cases, its
protection applies to governmental action. Its origin and history clearly show that
it was intended as a restraint upon the activities of sovereign authority, and was
not intended to be a limitation upon other than governmental agencies: as against
such authority it was the purpose of the Fourth Amendment to secure the citizen
in the right of unmolested occupation of his dwelling and the possession of his
property, subject to the right of seizure by process duly served.” The above ruling
was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana
instead, without the knowledge and participation of police authorities, was
declared admissible in prosecution for illegal possession of narcotics. And again in
the 1969 case of seizure clauses are restraints upon the government and its
agents, not upon private individuals, (citing People v. Potter, 240 Cal. App. 2d 621,
49 Cap. Rptr. 892 (1966): State v. Brown, Mo., 391 S.W. 2d 903 (1965): State v.
Olsen, Or., 317 P.2d 938 (1957). x x x The contraband in the case at bar having
come into possession of the Government without the latter trangressing
appellant’s rights against unreasonable search and seizure, the Court sees no
cogent reason why the same should not be admitted against him in the
prosecution of the offense charged.
Same; Same; Same; Where the contraband articles are identified without a
trespass on the part of the arresting officer, there is not a search that is prohibited
by the constitution.—Second, the mere presence of the NBI agents did not
convert the reasonable search effected by Reyes into a warrantless search and
seizure proscribed by the Constitution. Merely to observe and look at that which
is in plain sight is not a search. Having observed that which is open, where no
tresspass has been committed in aid thereof, is not search (Chadwick v. State, 429
SW2d 135). Where the contraband articles are identified without a trespass on
the part of the arresting officer, there is not the search that is prohibited by the
constitution (US v. Lee 274 US 559., 71 L.Ed. 1202 [1927]; Ker v. State of California
374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
Same; Same; Same; The Bill of Rights embodied in the Constitution is not meant
to be invoked against act of private individuals, it is directed only against the
government and its agencies tasked with the enforcement of the law.—That the
Bill of Rights embodied in the Constitution is not meant to be invoked against acts
of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land
must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows: “First, the general reflections. The
protection of fundamental liberties in the essence of constitutional democracy.
Protection against whom? Protection against the state. The Bill of Rights governs
the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals.
What the Bill of Rights does is to declare some forbidden zones in the private
sphere inaccessible to any power holder.” (Sponsorship Speech of Commissioner
Bernas; Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Italics supplied) The constitutional proscription against unlawful searches and
seizures therefore applies as a enforcement of the law. Thus, it could only be
invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
Criminal Law; Evidence; Denials of unsubstantiated by clear and convincing
evidence, are negative, self-serving evidence which deserves no weight in law and
cannot be given greater evidentiary weight than the testimony of credible
witnesses who testify on affirmative matters.—Rather than give the appearance
of veracity, we find appellant’s disclaimer as incredulous, self-serving and contrary
to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust
the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for
appellant to readily accede to comply with the undertaking without first
ascertaining its contents. As stated by the trial court, “(a) person would not simply
entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused.
The Accused, on the other hand, would not simply accept such undertaking to
take custody of the packages and ship the same from a complete stranger on his
mere say-so” (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the
errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight
in law and cannot be given greater evidentiary weight than the testimony of
credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA
571 (1989): People v. Sariol, 174 SCRA 237 [1989]).
Same; Same; Witnesses; Evidence to be believed, must not only proceed from the
mouth of a credible witness, but it must be credible in itself.—Evidence, to be
believed, must not only proceed from the mouth of a credible witness, but it must
be credible in itself such as the common experience and observation of mankind
can approve as probable under the circumstances (People v. Alto, 26 SCRA 342
[1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92
SCRA 567 [1979]). As records further show, appellant did not even bother to ask
Michael’s full name, his complete address or passport number. Furthermore, if
indeed, the German national was the owner of the merchandise, appellant should
have so indicated in the contract of shipment (Exh. “B”, Original Records, p. 40).
On the contrary, appellant signed the contract as the owner andwhich a person
possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule
131). At this point, appellant is therefore estopped to claim otherwise. People vs.
Marti, 193 SCRA 57, G.R. No. 81561 January 18, 1991
BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of
Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section
2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the
Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and
Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with
them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation
to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he
was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the
contract necessary for the transaction, writing therein his name, passport number,
the date of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages simply
contained books, cigars, and gloves and were gifts to his friend in Zurich. In view
of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top
of the packages before the box was sealed with masking tape, thus making the
box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard
operating procedure, opened the boxes for final inspection. When he opened
appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves and felt dried leaves
inside. Opening one of the bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the gloves. He made an opening on one of
the cellophane wrappers and took several grams of the contents thereof (tsn, pp.
29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and
requesting a laboratory examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics
Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the
afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).
Job Reyes brought out the box in which appellant's packages were placed and, in
the presence of the NBI agents, opened the top flaps, removed the styro-foam
and took out the cellophane wrappers from inside the gloves. Dried marijuana
leaves were found to have been contained inside the cellophane wrappers (tsn, p.
38, October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes.
He discovered that the package contained bricks or cake-like dried marijuana
leaves. The package which allegedly contained tabacalera cigars was also opened.
It turned out that dried marijuana leaves were neatly stocked underneath the
cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn,
pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's
stated address in his passport being the Manila Central Post Office, the agents
requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI
to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic
Chemistry Section for laboratory examination. It turned out that the dried leaves
were marijuana flowering tops as certified by the forensic chemist. (Appellee's
Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED
AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED
FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF
THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had
been obtained in violation of his constitutional rights against unreasonable search
and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3
(2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable
search and seizure had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the
United States Constitution. As such, the Court may turn to the pronouncements of
the United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in
Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure warrant, abandoning in the
process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling
and is carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable searches and seizures. (Bache &
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299
[1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687
[1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its
law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by a
private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can accused/appellant
validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual,
allegedly in violation of appellant's constitutional rights, be invoked against the
State?
We hold in the negative. In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers
to the immunity of one's person, whether citizen or alien, from interference by
government, included in which is his residence, his papers, and other possessions.
...
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US
757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court
there in construing the right against unreasonable searches and seizures declared
that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures,
and as shown in previous cases, its protection applies to governmental action. Its
origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority it was the purpose of
the Fourth Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof
found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of
narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that
the search and seizure clauses are restraints upon the government and its agents,
not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap.
Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or.,
317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court
there said:
The search of which appellant complains, however, was made by a private citizen
— the owner of a motel in which appellant stayed overnight and in which he left
behind a travel case containing the evidence*** complained of. The search was
made on the motel owner's own initiative. Because of it, he became suspicious,
called the local police, informed them of the bag's contents, and made it available
to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment
only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search
and seizure, the Court sees no cogent reason why the same should not be
admitted against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an
illegal search and seizure of the evidence later on used in prosecuting the case
which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In
both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition
that NBI agents conducted an illegal search and seizure of the prohibited
merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made search/inspection of the
packages. Said inspection was reasonable and a standard operating procedure on
the part of Mr. Reyes as a precautionary measure before delivery of packages to
the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-
18; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he
took samples of the same to the NBI and later summoned the agents to his place
of business. Thereafter, he opened the parcel containing the rest of the shipment
and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI
agents made no search and seizure, much less an illegal one, contrary to the
postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where
the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US
v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10
L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the
manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental law
of the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the
essence of constitutional democracy. Protection against whom? Protection against
the state. The Bill of Rights governs the relationship between the individual and
the state. Its concern is not the relation between individuals, between a private
individual and other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies tasked
with the enforcement of the law. Thus, it could only be invoked against the State
to whom the restraint against arbitrary and unreasonable exercise of power is
imposed.
If the search is made upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality. However, if the search is
made at the behest or initiative of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the intervention of
police authorities, the right against unreasonable search and seizure cannot be
invoked for only the act of private individual, not the law enforcers, is involved. In
sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has
been modified by the present phraseology found in the 1987 Charter, expressly
declaring as inadmissible any evidence obtained in violation of the constitutional
prohibition against illegal search and seizure, it matters not whether the evidence
was procured by police authorities or private individuals (Appellant's Brief, p. 8,
Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not
govern relationships between individuals. Moreover, it must be emphasized that
the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to
the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30,
1987]. The modifications introduced deviate in no manner as to whom the
restriction or inhibition against unreasonable search and seizure is directed
against. The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured by an individual effected
through private seizure equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court
erred in convicting him despite the undisputed fact that his rights under the
constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of
the case and found nothing to indicate, as an "undisputed fact", that appellant
was not informed of his constitutional rights or that he gave statements without
the assistance of counsel. The law enforcers testified that accused/appellant was
informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be
given full faith and credence, there being no evidence to the contrary. What is
clear from the records, on the other hand, is that appellant refused to give any
written statement while under investigation as testified by Atty. Lastimoso of the
NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused
here, did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by
the defense on cross-examination. As borne out by the records, neither was there
any proof by the defense that appellant gave uncounselled confession while being
investigated. What is more, we have examined the assailed judgment of the trial
court and nowhere is there any reference made to the testimony of appellant
while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like
us to believe that he was not the owner of the packages which contained
prohibited drugs but rather a certain Michael, a German national, whom appellant
met in a pub along Ermita, Manila: that in the course of their 30-minute
conversation, Michael requested him to ship the packages and gave him
P2,000.00 for the cost of the shipment since the German national was about to
leave the country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger struck in half an hour could
not have pushed a man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as
the marijuana flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from
a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why
he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary
weight than the testimony of credible witnesses who testify on affirmative
matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).
Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of hashish by
the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that
the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was
likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original
Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances (People
v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also
People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]);
Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not
even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise,
appellant should have so indicated in the contract of shipment (Exh. "B", Original
Records, p. 40). On the contrary, appellant signed the contract as the owner and
shipper thereof giving more weight to the presumption that things which a person
possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule
131). At this point, appellant is therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering
the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond
reasonable doubt of the crime charged is hereby AFFIRMED. No costs.
12. G.R. No. 133267. August 8, 2002.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO PERALTA @
WILLIE, accused-appellant.
Witnesses; The credibility of witnesses as assessed by the trial court will generally
not be disturbed.—This Court has held in a long line of cases that the credibility of
witnesses as assessed by the trial court will generally not be disturbed. As we
explained in People vs. Bolivar, et al. “Well-entrenched in our jurisprudence is the
doctrine that the assessment of the credibility of witnesses lies within the
province and competence of trial courts. Said doctrine is based on the time-
honored rule that the matter of “assigning values to declarations on the witness
stand is best and most competently performed by the trial judge who, unlike
appellate magistrates, can weigh such testimony in the light of the declarant’s
demeanor, conduct and attitude at the trial and is thereby placed in a more
competent position to discriminate between truth and falsehood. Thus, appellate
courts will not disturb the credence, or lack of it, accorded by the trial court to the
testimonies of witnesses, unless it be clearly shown that the lower court had over
looked or disregarded arbitrarily the facts and circumstances of significance in the
case.”
Same; Absent any reason or motive for a prosecution witness to perjure, the
logical conclusion is that no such proper motive exists and his testimony is thus
worthy of full faith and credit.—A review of the records of this case shows that
the trial court did not err in giving credence to the testimonies of the witnesses.
Conrado Capitulo, who saw the gunman up close, was very categorical and frank
in his testimony. He identified accused Wilfredo Peralta as the man who shot
Major Rivera. The defense also failed to impute any ill-motive on said witness
which would discredit his positive identification of the accused. Absent any reason
or motive for a prosecution witness to perjure, the logical conclusion is that no
such proper motive exists and his testimony is thus worthy of full faith and credit.
Same; Alibi; Between alibi and positive identification, weight is given in favor of
identification especially when it is categorical and consistent and without any
showing of ill-motive on the part of the eyewitness to impute so grave a wrong on
the accused.—The only defense offered by accused-appellant is his claim that he
was at the Iglesia ni Cristo chapel in his barangay when the crime happened on
April 2, 1993. Between alibi and positive identification, this Court has given weight
in favor of identification especially when it is categorical and consistent and
without any showing of ill-motive on the part of the eyewitness to impute so
grave a wrong on the accused. Alibi is inherently weak and generally not given
much credence by the courts due to the facility with which it can be concocted.
For this kind of defense to prosper it is not enough to show that the accused was
somewhere else when the crime was committed. He must further demonstrate
that it was physically impossible for him to have been at the scene of the crime at
the time of the commission thereof.
Criminal Law; Murder; Aggravating Circumstances; Evident Premeditation;
Elements.—The trial court correctly found the accused guilty of murder. The
killing of Major Rivera was attended with evident premeditation and treachery.
For evident premeditation to be appreciated, the following elements must be
proved: (a) the time when the offender determined to commit the crime; (b) an
act manifestly indicating that he clung to his determination; and, (c) a sufficient
lapse of time between determination and execution to allow himself time to
reflect upon the consequences of his act. These elements must be established
with equal certainty and clarity as the criminal act itself before it can be
appreciated.
Same; Same; Same; Treachery; Abuse of Superior Strength; Treachery absorbs
taking advantage of superior strength with the aid of armed men or employing
means to weaken the defense or of means or persons to insure or afford impunity.
—Treachery was also proved in this case. As previously held by this Court,
treachery is present when the offender commits any crime against persons
employing means, methods or forms in the execution thereof which tend directly
and specially to insure its execution without risk to the offender arising from any
defense which the offended party might make. In this case, the victim was caught
defenseless and manifestly overpowered when he was gunned down by the
accused and his co-conspirators while he was in the driver’s seat of his car. This
circumstance however absorbs the other circumstances mentioned in the
Information, i.e. taking advantage of superior strength with the aid of armed men
or employing means to weaken the defense or of means or persons to insure or
afford impunity.
Same; Same; Conspiracy; Conspiracy can be proven by evidence of a chain of
circumstances and may be inferred from the acts of the accused before, during,
and after the commission of the crime which indubitably point to and are
indicative of a joint purpose, concert of action and community of interest.—
Conspiracy was also proven beyond reasonable doubt. Conspiracy is said to exist
where two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. It can be proven by evidence of a chain of
circumstances and may be inferred from the acts of the accused before, during,
and after the commission of the crime which indubitably point to and are
indicative of a joint purpose, concert of action and community of interest.
Same; Same; State Witnesses; Witness Protection Act; It is not constitutionally
impermissible for Congress to enact R.A. No. 6981 (Witness Protection Security
and Benefit Act) vesting in the Department of Justice the power to determine who
can qualify as a witness in the program and who shall be granted immunity from
prosecution; The discharge of an accused is part of the exercise of jurisdiction but
is not a recognition of an inherent judicial function.—As to the assertion of
accused-appellant that the two (2) state witnesses should have been indicted with
him applying Section 9, Rule 119 of the Rules of Court instead of the Witness
Protection Act which was used by the Department of Justice, we also find the
same to be without merit. In the case of Webb vs. De Leon, where, as in this case,
the petitioners questioned the non-inclusion of Alfaro in the Information
considering her alleged conspiratorial participation in the crime, this Court
explained: “x x x the prosecution of crimes appertains to the executive
department of government whose principal power and responsibility is to see that
our laws are faithfully executed. A necessary component of this power to execute
our laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion—the discretion of whether, what and
whom to charge, the exercise of which depends on a smorgasboard of factors
which are best appreciated by prosecutors. We thus hold that it is not
constitutionally impermissible for Congress to enact R.A. No. 6981 (Witness
Protection Security and Benefit Act) vesting in the Department of Justice the
power to determine who can qualify as a witness in the program and who shall be
granted immunity from prosecution. Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be state witness is an inherent
judicial prerogative. Under this provision, the court is given the power to
discharge a state witness only because it has already acquired jurisdiction over
the crime and the accused. The discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent judicial function . . . .” Clearly,
no error was committed by the Department of Justice when it placed witnesses in
this case under the Witness Protection Program. People vs. Peralta, 387 SCRA 45,
G.R. No. 133267 August 8, 2002
AUSTRIA-MARTINEZ, J.:
On appeal is the decision1 dated November 10, 1997 of the Regional Trial Court of
Quezon City, finding Wilfredo Peralta alias "Willie" guilty of murder and
sentencing him to suffer an imprisonment term of reclusion perpetua and to pay
the heirs of Chief PNP Inspector Arthur Rivera the sum of One Hundred Eighty
Four Thousand Seven Hundred Fifteen Pesos (P184,715.00) as actual damages,
Two Hundred Thousand Pesos (P200,000.00) in moral damages, and Fifty
Thousand Pesos (P50,000.00) in indemnity damages.
The Information filed on September 22, 1994 accuses Wilfredo Peralta alias
"Willie," Severo Espinosa, Jr., alias "Jun Berong" and several John Does for murder
committed as follows:
"That on or about 02 April 1993 at around 5:30 o’clock in the afternoon at Sitio
Tabane, Brgy. Aguso, Tarlac, Tarlac and within the jurisdiction of this Honorable
Court, the above-named accused with intent to kill, qualified by treachery, evident
premeditation, taking advantage of superior strength, with the aid of armed men
or employing means to weaken the defense or of means or persons to insure or
afford impunity, conspiring, confederating and mutually helping one another, did
then and there, willfully, unlawfully and feloniously attack, assault and use
violence upon the person of Chief Insp. Arthur Rivera by firing shots at him
thereby causing his instantaneous death.
"CONTRARY TO LAW."2
Upon arraignment on October 21, 1994, accused Wilfredo Peralta and Severo
Espinosa, Jr. entered pleas of not guilty.3 Thereafter, trial ensued.4
The prosecution presented the following witnesses: Myrna Borromeo, Francisco
Rivera, Conrado Capitulo, Myrna Rivera, Danilo Castañeda, and Carlos
Rocha.1âwphi1.nêt
Myrna Borromeo testified that accused Severo Espinosa, Jr. alias "Jun Berong" was
her live-in partner from December 1990 to July 1994 while accused Wilfredo
‘Willie’ Peralta was their compadre who often visited their house in Brgy. Tibag,
Tarlac, Tarlac5; that around the third week of March 1993, while serving Berong,
Willie and two (2) others in one of their drinking sessions, she heard accused
Willie Peralta say that Major Rivera was already scheduled to be killed;6 that on
April 2, 1993, she noticed that Berong and their stainless owner jeep were not at
their house; that later in the evening, she heard that Major Rivera was killed;7
that a week after the death of Rivera, Willie went to their house and she heard
him say to Berong that they needed to hide the vehicle while it was still hot
("mainit pa"); that Berong then hid the vehicle at the back of their house.8
On cross-examination, Myrna admitted that Berong used to beat her up.9 This
according to the defense was the reason why she wanted to get back at Berong by
implicating him in the death of Rivera.10
On redirect, Myrna admitted that on July 22, 1994, she filed a complaint before
the police where she told them that if only she would be given a chance to tell the
truth, she would report that "they used (Berong’s) vehicle in killing Major
Rivera."11
Francisco Rivera, one of the four children of the victim, was thirteen (13) years old
at the time of his testimony. He testified that on April 2, 1993 at around 4 o’clock
in the afternoon, he and his brother Ferdinand went with their father to the town
proper of Tarlac to get his bike; that with them was one of their helpers, Tano
Basa; that they were riding their father’s Ford Cortina and arrived at Tarlac, Tarlac
at around 4:20 p.m.12; that he and his brother rode the bike alternately while the
other stayed in the car together with their father and Tano Basa; that they passed
through Kingburger, Matatalaib, Crisca Resort until they reached the sub-station
going to Villa Soliman, where the car stopped; that there, his father decided to go
to Tabane; that upon reaching Tabane, he saw the car of his father park along the
shoulder of the road in front of the house of Apong Capitulo; that his father was
still at the driver’s seat; that soon after, he saw a man alight from a stainless
owner jeep and shoot at his father;13 that a light green Sarao type passenger jeep
without any plate number followed;14 that when the passenger jeep stopped,
fires were shot from said vehicle; that the shots came from an armalite rifle;15
that the gunman was standing sideways with the gun placed beside his abdomen;
that he was at least ten (10) meters from his father’s car when the two (2) jeeps
arrived; that he was only about five (5) meters from his father’s car when he saw
the gunman from the stainless jeep board the same which then sped away; that
while Francisco admitted that he may not be able to identify the stainless jeep
again nor the driver and the gunman from said vehicle,16 he was able to take a
look at the man who shot his father from the passenger jeepney and identified
accused Wilfredo Peralta;17 that after the vehicle sped away, he ran towards the
car and saw his father with his face down covered with blood;18 that he had seen
accused Peralta previously before the incident; that he saw him on the same day,
at around noon, outside their gate on board a motorcycle with another man.19
On cross examination, Francisco was shown the sworn statement he executed on
June 9, 1993 at Brgy. Aguso, Tarlac.20 When asked what he did when he heard the
gunshots, he answered that he alighted from his bike. When asked if he hid, he
answered no and said he looked at the person who was firing at his father. At this
point, counsel for the accused quoted from Francisco’s previous statement, thus:
"T - Nakarating ka ba at nakalapit sa paghihintayan sa iyo ng iyong Papa na si Maj.
Rivera? S – Hindi po at bigla akong huminto at bumaba sa bisikleta, at nagtago sa
damuhan." Francisco admitted that he hid because he was frightened and got
confused.21
Upon redirect, the witness described the grass where he took cover as only about
eight (8) inches to two (2) feet tall.22
The next witness presented by the prosecution was Conrado Capitulo. He testified
as follows: In the afternoon of April 2, 1993, he and his wife were at the balcony
of their house entertaining visitors when he noticed a car parked in front of their
house more or less ten (10) meters from where they were. He saw a boy alight
from the car and go to the rear portion of the car. When he went inside to get
softdrinks for his visitors, he heard around three (3) successive shots coming from
a gun. He immediately went to the balcony where his wife, visitors and
grandchildren were. Then he saw a Sarao jeepney parked in front of his gate, on
the right side of the road, with the engine on. There were five (5) passengers in
the jeep, two (2) on both sides, plus the driver. Then he saw one of the occupants
of the jeepney, the one seated at the right side of the Sarao at the rear portion,
aim his M-16 armalite at the car parked in front of his house. After the man fired
at the car, Conrado went near his gate because one of his grandchildren was
there. He then shouted "dapa, dapa, dapa."23 The gunfire stopped for a while and
the one firing the gun looked at him. Thereafter, the gunman removed his gaze
from Conrado and continued firing successively until he ran out of bullets.24 All in
all, there were three (3) initial shots followed by the shots from the armalite
before the jeepney sped away.25 After the jeepney sped away, Conrado hurriedly
went to the street because he wanted to see the plate number of the jeep.26
Then he flagged down an L-300 van going the direction of Baguio and asked its
driver to go after the Sarao jeepney and get the plate number. Conrado called a
tricycle which was going the direction of Manila and asked the driver to report the
incident to the police sub-station at Salapungan. Afterwards, he went near the car
and saw the driver with his face on the steering wheel. He recognized the victim
as Major Rivera. The victim had his left hand on the steering wheel with blood
oozing from his forehead and below the nape. The windshield of the victim’s car
was broken with the rear glass and the body of the car riddled with bullets. There
was a hole at the doorknob beside the driver, and the rear tire was flat.27
Conrado was invited to Camp Crame in connection with the death of Major Arthur
Rivera. There he identified accused Wilfredo Peralta, in a line up, as the one who
shot an armalite from the passenger jeepney. A witness also pointed to Wilfredo
Peralta in court as the man who fired at the victim.28
Myrna Rivera, wife of the victim testified as follows: She and her husband had
four (4) children namely, Ferdinand, Francisco, Imee and Mayavi. On April 2, 1993,
at around 5:00 in the afternoon, she was on board a tricycle on her way to Aguso,
Tarlac, Tarlac when she saw many people and several policemen along the
highway. She told the tricycle driver to slow down and upon seeing the car of her
husband, told the driver to stop. She ran toward the car and saw her husband at
the driver’s seat full of blood. She pulled the head of her husband and saw a big
hole on his forehead. She cried upon seeing her husband dead.29 They incurred
several expenses in relation to the death of her husband, as follows: Twenty Five
Thousand Pesos (P25,000.00) for the casket and funeral service; Seventy Seven
Thousand Two Hundred Fifteen Pesos (P77,215.00) for the food during the wake;
and Eighty Two Thousand Five Hundred Pesos (P82,500.00) for the burial
expenses. Immediately before the death of her husband, they were earning Sixty
Thousand Pesos (P60,000.00) a month from their business of buying and selling
slightly used cars.30 As chief inspector, the victim was also receiving a monthly
pay of Seven Thousand Seven Hundred Twenty Four Pesos (P7,724.00).31 At the
time of the death of her husband, her children were studying at Trinity College.
Ferdinand was in second year college while Francisco was first year in high
school.32 Because of the death of her husband, she suffered sleepless nights
which if quantified would amount to One (1) Million Pesos (P1,000,000.00).33
Dr. Saturnino Ferrer, the Municipal Health Officer of Tarlac, Tarlac who conducted
the post-mortem examination on the body of Major Arthur Rivera, testified that
the cause of death was a gunshot wound.34 He prepared the post mortem
findings marked as Exhibit "B".35
The prosecution also presented as witness, Danilo Castañeda, a self-confessed gun
for hire.36 He testified that he knows the accused Wilfredo Peralta because they
are both residents of Barangay Barsolingan in Tarlac; that Wilfredo Peralta, Aser
Agosto, Ben Galo, and Severo Espinosa alias Ka Berong often met at his house to
talk about a lot of things, one of which was the killing of Major Rivera at around
March of 1993; that present during these conversations were Bong Pasuquin,
Conrad Domingo, Anding Pineda, Jess Ilonga, and Boy Peralta;37 that a certain
Nelson Torres, a minister of the Iglesia ni Cristo, who gave them assignments who
to kill;38 that his group planned on killing Major Rivera at the house of Carlos
Rocha, a neighbor, "Pinag-usapan po namin ang pagpatay kay Rivera;"39 that they
planned on killing Rivera because accused Peralta was mad at him for driving
them out of Barangay Aguso;40 that Willie Peralta, John Pasuquin, Conrad
Domingo, Alvin Pineda and Jess Ilonga got their arms, two (2) M-16 Armalite and
one (1) M-1, from a Recto Salvador of Barangay Aguso in the second week of
March;41 that on April 2, 1993, his group went to their meeting place at Midway,
which was the crossing going to Baguio, Makabulos and Mata Talahib Maliwalu;
that one of the vehicles they used was actually a San Francisco passenger jeepney
owned by the father of Bong Pasuquin which had a yellow and green stripes and a
panel where the routes were written in black;42 that this passenger jeepney was
parked in front of Shell Gasoline station along the highway; that meanwhile, Bong
Pasuquin ordered him to park the other vehicle facing Makabulos while he waited
for Major Rivera; that Bong then asked him to be a look out; that Bong Pasuquin
was with him while they were waiting for Major Rivera from 5 to 6 p.m.;43 that
upon seeing Major Rivera’s car, Bong Pasuquin went to the passenger jeepney and
told their companions "Parating na si Major" and to follow behind; that Major
Rivera turned left at the Midway intersection and stopped at the City Trans Bus
Station, formerly known as Pantrans, going to Baguio; that Bong Pasuquin
followed the car and the witness followed him about a distance of one post away;
that at the boulevard, Major Rivera stopped from time to time to assist his son
who was riding a bike; that Major Rivera then moved forward stopping at Crisca
Resort and at Villa Suliman; that afterwards, he went to Brgy. Aguso and stopped
in front of the house of Brgy. Kagawad Capitulo; that Bong Pasuquin drove his jeep
forward overtaking the car of Maj. Rivera and started firing at the car;44 that Aser
Agosto, Willie Peralta, Conrad Domingo, Carding Pineda, Jessie Longa, Boy Peralta
and Recto Salvador fired at Major Rivera; that later they went to the house of
John Pasuquin where they talked about the killing of Rivera.45
Carlos Rocha testified that he is a resident of Barsolingan, Gerona, Tarlac;46 that
he knows Danilo Castañeda, Aser Agosto, Wilfredo Peralta, Recto Salvador and
Conrado Domingo;47 that in the last week of January 1993, Willie Peralta went to
his house with Aser Agosto, Conrad Domingo, Recto Salvador, Carding Pineda, a
certain Gary from Dau, Jessie Longa and Bong Pasuquin to plan the killing of
Benjamin Rivera, the father of Major Rivera; that Benjamin Rivera is the barangay
chairman of Aguso Tarlac, Tarlac; that they wanted to kill Benjamin so that Recto
Salvador will become the barangay chair;48 that the reason why the group later
decided to kill Major Rivera instead of Benjamin was because the group thought if
they killed Benjamin first, Major Rivera will investigate the crime; that by killing
Major Rivera, there will be no one anymore who will investigate the killing;49 that
four (4) meetings took place in his house regarding the killing of Major Rivera; that
the last one took place sometime in March, about two (2) weeks before the killing
of Major Rivera; that present in these meetings were Aser Agosto, Willie Peralta,
Conrad Domingo, Bong Pasuquin, Carding Pineda, Jessie Longa, Danilo Castañeda,
Recto Salvador and a certain Ray;50 that after the killing of Major Rivera, the
group came to his house and asked him to keep their firearms, three (3) armalites
and one (1) M-14; that the group would get these firearms from time to time until
the PACC searched the houses in his barangay;51 that when the group suspected
that he might squeal the matter to the police, they sprayed his house with
bullets.52
On cross-examination, Carlos admitted that he agreed to have the group use his
house for the plotting of Major Rivera’s killing;53 that he did not have any part in
the killing nor did he propose any method, system or means in the killing of
Arthur Rivera; that among those who attended the meetings, the most vocal was
Aser Agosto;54 that after the killing, Aser, Willy Peralta, Conrad Domingo, Recto
Salvador, Carding Pineda, Jessie Longa and Bong Pasuquin, and a certain Gary,
went to his house, around 8 p.m., and stayed for about 30 minutes; that the group
said, "patay na si Major. Tumahimik ka na lang, wag kang kikibo";55 that the wife
of Castañeda is the niece of his wife.56
For its part, the defense presented accused-appellant Wilfredo Peralta.
He testified as follows: He was at Barangay Barsolingan at the chapel of the Iglesia
ni Cristo inviting friends on April 2, 1993, from 4:30 in the afternoon until 8 o’clock
in the evening. At around 6 p.m., a woman arrived saying there was an accident at
Barangay Aguso.57 However, he came to know about the details of the incident
only two (2) or three (3) weeks after April 2. When he found out that it was Major
Arthur Rivera who was killed, he even asked around what the possible reason
could be since he knew that he was a good man.58 He and Major Rivera knew
each other because he stayed in Brgy. Aguso for about a year and a half, but, they
were not talking to each other.59 He did not kill Major Rivera. He did not know
anything about his death nor about any suspect or investigation concerning his
death. He was arrested by the PACC after searching his house and finding
ammunitions there. He was then brought to Camp Crame for illegal possession of
firearms. Later, a case was filed against him regarding the death of Major
Rivera.60 Michael Rocha approached him and said several cases will be filed
against him and it would be best for him therefore to turn state witness. He was
also offered to be a state witness several times by Arman Rivera, brother of the
victim. Arman told him that if he helped them, he will be released. Helping meant
testifying against Recto Salvador, Atty. Millo and Thelmo Estanola.61 Mrs. Rivera,
the mother of the victim talked to him about this case and told him that he should
cooperate and help because she knew he had nothing to do with this case.62
Recto Salvador, is from Barangay Aguso and an opponent of the Rivera family in
politics. He said he could not turn state witness against Recto Salvador and the
others since he was not sure if indeed they were the ones who committed the
crime.63
On cross-examination, appellant testified that before he resided in Barangay
Barsolingan, he was staying in Brgy. Aguso; that he transferred to Brgy. Barsolingan
in August 1990, while his parents were left in Brgy. Aguso; that in 1992 they sold
the house to the Riveras;64 that it would take ten (10) minutes from Sitio
Tabane65 in Brgy. Aguso Tarlac to Barsolingan by vehicle;66 that he and Major
Rivera talked very often since he would go to their house together with friends
practically every evening; that he was welcomed at the Rivera’s residence;67 that
on May 10, 1995, on their way to the hearing in Tarlac, he escaped and was only
recaptured almost one (1) year later, that is on January 12, 1996.68
The prosecution presented Myrna and Francisco Rivera as rebuttal witnesses to
deny certain allegations in the direct testimony of appellant. Myrna denied that
appellant always attended the hearings at Tarlac, particularly the hearing on May
10, 1995 when appellant escaped. To support her claim, witness Myrna presented
a letter from the Office of the Custodian of Records in Camp Crame.69 Francisco
Rivera testified that contrary to the claim of accused, the latter did not frequent
their house in Tarlac.70
Earlier on, accused Severo Espinosa filed a Demurrer to Evidence.71 This was
granted by the trial court on March 3, 1997 and ordered the dismissal of the
criminal charge for murder against him.72
On November 10, 1997, the trial court rendered a decision, the dispositive portion
of which reads:
"ACCORDINGLY, judgment is hereby rendered finding the herein accused
WILFREDO PERALTA (a.k.a.) WILLIE, GUILTY beyond reasonable doubt as Principal
in the crime of Murder charged in this case, and said accused is hereby sentenced
to suffer an imprisonment term of RECLUSION PERPETUA.
"On the civil aspect said accused is ordered to pay the heirs of Chief PNP Inspector
Arthur Rivera the sum of P 184,715.00 as actual damages, P200,000.00 in moral
damages, and P50,000.00 in indemnity damages.
"SO ORDERED."73
Hence, the present appeal.
In his Brief, appellant claims that:
"I
"THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF
PROSECUTION’S WITNESSES NOTWITHSTANDING SERIOUS FLAWS,
CONTRADICTIONS AND INCOHERENCE (IN) THE TESTIMONIES AS TO THE IDENTITY
AND PARTICIPATION OF ACCUSED IN THE KILLING OF MAJOR ARTHUR RIVERA.
"II
"THE LOWER COURT ERRED IN CONVINCING (sic) THE ACCUSED DESPITE CLEAR
ABSENCE OF PROOF BEYOND REASONABLE DOUBT."74
Appellant posits that the conviction has no sufficient basis as the prosecution has
not established clearly his guilt beyond reasonable doubt. He points out that
there were serious flaws, contradictions and incoherence as to his identity and
actual participation in the killing of Major Rivera;75 that his being identified by
Francisco Rivera is fabricated and concocted to suit the theory that he is among
the group that shot and killed Major Rivera; that the prosecution failed to present
evidence that would corroborate Francisco’s testimony; that the prosecution
failed to present the testimony of Francisco’s elder brother Ferdinand, and, Tano
Basa who were also present when the incident occurred; that there was no direct
statement as to the identity of the accused both on the direct and cross
examination of Conrado Capitulo.76
Appellant also questions the presentation of two (2) state witnesses who were
placed under the Witness Protection Program of the Department of Justice. He
argues that the provisions of Section 9, Rule 119 is the applicable law and not the
Witness Protection Program; that Danilo Castañeda and Noel Reyes should have
been indicted together with him; that the presence of this error is a ground for
the acquittal of accused-appellant.77
The Solicitor General on the other hand states that contrary to appellant’s
contention, the prosecution was able to establish his identity as one of the
assailants; that the testimonies of Francisco Rivera, Conrado Capitulo, Danilo
Castaneda and Carlos Rocha were clear, positive and consistent in pointing to the
accused-appellant as one of those who killed Major Rivera;78 that the guilt of
accused-appellant has been proved beyond reasonable doubt and that all the
elements of murder were present and proved in this case.79
We find the appeal of Wilfredo Peralta to be devoid of merit.
This Court has held in a long line of cases that the credibility of witnesses as
assessed by the trial court will generally not be disturbed.80
As we explained in People vs. Bolivar, et al.81
"Well-entrenched in our jurisprudence is the doctrine that the assessment of the
credibility of witnesses lies within the province and competence of trial courts.
Said doctrine is based on the time-honored rule that the matter of "assigning
values to declarations on the witness stand is best and most competently
performed by the trial judge who, unlike appellate magistrates, can weigh such
testimony in the light of the declarant’s demeanor, conduct and attitude at the
trial and is thereby placed in a more competent position to discriminate between
truth and falsehood. Thus, appellate courts will not disturb the credence, or lack
of it, accorded by the trial court to the testimonies of witnesses, unless it be
clearly shown that the lower court had over looked or disregarded arbitrarily the
facts and circumstances of significance in the case."
A review of the records of this case shows that the trial court did not err in giving
credence to the testimonies of the witnesses. Conrado Capitulo, who saw the
gunman up close, was very categorical and frank in his testimony. He identified
accused Wilfredo Peralta as the man who shot Major Rivera. The defense also
failed to impute any ill-motive on said witness which would discredit his positive
identification of the accused. Absent any reason or motive for a prosecution
witness to perjure, the logical conclusion is that no such proper motive exists and
his testimony is thus worthy of full faith and credit.82
Francisco Rivera, son of the deceased, also identified the accused as the man who
shot his father from the passenger jeepney. It would be very unnatural for him, as
a son who is determined to vindicate the death of his father, to falsely accuse
anyone other than the real culprit.83 While the defense tried to discredit the
testimony of witness Francisco Rivera, they were not able to prove the
impossibility of his testimony because while Francisco admitted to have hid
among the grass, it was only at most two (2) feet tall, and Francisco at the time
was thirteen years old.84
Moreover, this Court has held that discrepancies between the affidavit and the
testimony of the witness in open court do not necessarily impair the credibility of
the testimony, since affidavits are usually taken ex parte and are often incomplete
for lack of searching inquiries by the investigating officer.85
The only defense offered by accused-appellant is his claim that he was at the
Iglesia ni Cristo chapel in his barangay when the crime happened on April 2, 1993.
Between alibi and positive identification, this Court has given weight in favor of
identification especially when it is categorical and consistent and without any
showing of ill-motive on the part of the eyewitness to impute so grave a wrong on
the accused.86
Alibi is inherently weak and generally not given much credence by the courts due
to the facility with which it can be concocted.87 For this kind of defense to
prosper it is not enough to show that the accused was somewhere else when the
crime was committed. He must further demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of the
commission thereof.88 By the accused’s own admission he was only one (1)
barangay away from the scene of the crime which was only ten (10) minutes away
by vehicle. His alibi failed to show the physical impossibility of his presence at the
locus delicti. Moreover, he failed to present any witness who would support his
claim that he was indeed at the chapel of the Iglesia ni Cristo at Barangay
Barsolingan at that period of time.
The trial court correctly found the accused guilty of murder. The killing of Major
Rivera was attended with evident premeditation and treachery.
For evident premeditation to be appreciated, the following elements must be
proved: (a) the time when the offender determined to commit the crime; (b) an
act manifestly indicating that he clung to his determination; and, (c) a sufficient
lapse of time between determination and execution to allow himself time to
reflect upon the consequences of his act. These elements must be established
with equal certainty and clarity as the criminal act itself before it can be
appreciated.89
In the case at bar, evident premeditation was shown by the testimonies of Myrna
Borromeo, Danilo Castañeda and Carlos Rocha where they narrated how several
men, including herein accused, planned on several occasions the ambush-slay of
Rivera. The group met several times to plan the killing of Major Rivera, which plan
they held on to and finally executed on April 2, 1993.
Treachery was also proved in this case. As previously held by this Court, treachery
is present when the offender commits any crime against persons employing
means, methods or forms in the execution thereof which tend directly and
specially to insure its execution without risk to the offender arising from any
defense which the offended party might make.90 In this case, the victim was
caught defenseless and manifestly overpowered when he was gunned down by
the accused and his co-conspirators while he was in the driver’s seat of his car.
This circumstance however absorbs the other circumstances mentioned in the
Information, i.e. taking advantage of superior strength with the aid of armed men
or employing means to weaken the defense or of means or persons to insure or
afford impunity.
Conspiracy was also proven beyond reasonable doubt. Conspiracy is said to exist
where two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. It can be proven by evidence of a chain of
circumstances and may be inferred from the acts of the accused before, during,
and after the commission of the crime which indubitably point to and are
indicative of a joint purpose, concert of action and community of interest.91
In the case at bar, the testimonies of Francisco Rivera and Conrado Capitulo as to
the manner of the execution of the crime clearly show unity of intent and
purpose. The group utilized two (2) vehicles which followed the victim, and upon
getting the opportunity, those with firearms shot at the victim before speeding
away. The testimonies of Danilo Castañeda, Carlos Rocha and Myrna Borromeo
also show that the group planned on killing Major Rivera weeks before the
ambush. It is just unfortunate that only Wilfredo Peralta was brought to justice
and proved guilty of the crime.
As to the assertion of accused-appellant that the two (2) state witnesses should
have been indicted with him applying Section 9, Rule 119 of the Rules of Court
instead of the Witness Protection Act which was used by the Department of
Justice, we also find the same to be without merit.
In the case of Webb vs. De Leon,92 where, as in this case, the petitioners
questioned the non-inclusion of Alfaro in the Information considering her alleged
conspiratorial participation in the crime, this Court explained:
"xxx the prosecution of crimes appertains to the executive department of
government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion---the discretion of whether, what and whom to
charge, the exercise of which depends on a smorgasboard of factors which are
best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 (Witness Protection Security
and Benefit Act) vesting in the Department of Justice the power to determine who
can qualify as a witness in the program and who shall be granted immunity from
prosecution. Section 9 of Rule 119 does not support the proposition that the
power to choose who shall be state witness is an inherent judicial prerogative.
Under this provision, the court is given the power to discharge a state witness
only because it has already acquired jurisdiction over the crime and the accused.
The discharge of an accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function…."93
Clearly, no error was committed by the Department of Justice when it placed
witnesses in this case under the Witness Protection Program.
As to damages, the trial court correctly awarded to the heirs of the deceased Fifty
Thousand Pesos (P50,000.00) as civil indemnity for the death of Major Rivera.
However, the amount of Two Hundred Thousand Pesos (P200,000.00) as award
for moral damages must be reduced to Fifty Thousand Pesos (P50,000.00)
following jurisprudence.94
We also reduce the amount of actual damages to Twenty Five Thousand Pesos
(P25,000.00) for this was the only expense evidenced by a receipt.95
Finally, we award to the heirs of the deceased One Million Ninety Two Thousand Six
Hundred Eighteen and Forty Five Centavos (P1,092,618.45) for loss of earning capacity,
computed as follows: Seven Thousand One Hundred Ninety Seven Pesos and Seventy Five
Centavos (P7,197.75) representing the monthly income of Major Rivera multiplied by 12 to
get the annual income of Major Rivera immediately prior to his death which is Eighty Six
Thousand Three Hundred Seventy Three Pesos (P86,373.00), minus necessary and
incidental expenses, or 50% equals P43,186.50 multiplied by his life expectancy which is
25.3 (2/3 x [80 – 42], the age of the victim at the time of his death).96
WHEREFORE, the decision of the Regional Trial Court of Quezon City convicting accused-
appellant of the crime of Murder and sentencing him to suffer reclusion perpetua is
AFFIRMED with the MODIFICATION that the accused-appellant is ordered to pay to the
heirs of Major Arthur Rivera, in addition to the amount of Fifty Thousand Pesos
(P50,000.00) as civil indemnity for the victim’s death, Fifty Thousand Pesos (P50,000.00)
for moral damages, Twenty Five Thousand Pesos (P25,000.00) for actual damages, and
One Million Ninety Two Thousand Six Hundred Eighteen and Forty Five Centavos
(P1,092,618.45) for loss of earning capacity.1âwphi1.nêt
13. G.R. No. 130650.September 10, 2002.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO VERCELES, FELIX
CORPUZ, MAMERTO SORIANO (At large), PABLO RAMOS (At large), and JERRY
SORIANO (State Witness), accused. MARIO VERCELES and FELIX CORPUZ,
accused-appellants.
Criminal Procedure; State Witnesses; Requisites.—The requirements for the
discharge and utilization of an accused as a state witness are enumerated in Rule
119, Section 17 of the Revised Rules of Criminal Procedure, viz.: a) There is
absolute necessity for the testimony of the accused whose discharge is requested;
b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of the accused; c) The testimony of said
accused can be substantially corroborated in its material points; d) Said accused
does not appear to be the most guilty; and e) Said accused has not at any time
been convicted of any offense involving moral turpitude.
Same; Same; Double Jeopardy; Witnesses; The improper discharge of an accused
will not render inadmissible his testimony nor detract from his competency as a
witness—any witting or unwitting error of the prosecution in asking for the
discharge, and of the court in granting the petition, no question of jurisdiction
being involved, cannot deprive the discharged accused of the acquittal provided
by the Rules, and of the constitutional guarantee against double jeopardy.—
Granting ex gratia argumenti that not all the requisites of a valid discharge are
present, the improper discharge of an accused will not render inadmissible his
testimony nor detract from his competency as a witness. Any witting or unwitting
error of the prosecution in asking for the discharge, and of the court in granting
the petition, no question of jurisdiction being involved, cannot deprive the
discharged accused of the acquittal provided by the Rules, and of the
constitutional guarantee against double jeopardy.
Criminal Law; Rape; Witnesses; When an alleged victim of rape says she was
violated, she says in effect all that is necessary to show that rape has been
inflicted on her, and so long as her testimony meets the test of credibility, the
accused may be convicted on the basis thereof.—On the matter of whether rape
was committed, we agree with the trial court’s ruling that neither the healed
lacerations on the vagina of the victim nor the absence of spermatozoa negates
rape. When an alleged victim of rape says she was violated, she says in effect all
that is necessary to show that rape had been inflicted on her, and so long as her
testimony meets the test of credibility, the accused may be convicted on the basis
thereof. In the case at bar, the victim’s declaration of her sexual ordeal, which was
given in a straightforward, convincing, credible and satisfactory manner, shows no
other intention than to obtain justice for the wrong committed by accused-
appellant Mamerto Soriano against her. The Court finds no reason to depart from
the rule that the trial court’s evaluation of the credibility of the testimonies of the
witnesses is accorded great weight because it has the unique opportunity of
hearing the witnesses testify and observing their deportment and manner of
testifying.
Same; Rape with Homicide; Conspiracy; Once conspiracy is established between
two accused in the commission of the crime of robbery, they would be both
equally culpable for the rape committed by one of them on the occasion of the
robbery, unless any of them proves that he endeavored to prevent the other from
committing the rape.—We agree with the trial court that conspiracy has been
sufficiently proved by the prosecution. Accused-appellants were one in design
with accused Mamerto Soriano in taking personal properties belonging to others
without the latter’s consent by breaking one of the windows to be used as their
ingress. In the course of the robbery, one of them, particularly Mamerto Soriano,
succumbed to lustful desires and raped Maribeth Bolito while accused-appellants
just stood outside the door and did nothing to prevent Mamerto Soriano. We
have previously ruled that once conspiracy is established between two accused in
the commission of the crime of robbery, they would be both equally culpable for
the rape committed by one of them on the occasion of the robbery, unless any of
them proves that he endeavored to prevent the other from committing the rape.
The rule in this jurisdiction is that whenever a rape is committed as a
consequence, or on the occasion of a robbery, all those who took part therein are
liable as principals of the crime of robbery with rape, although not all of them
took part in the rape.
Same; Same; Mitigating Circumstances; Voluntary Surrender; Where the accused
submitted himself to the police only to clear the matter and to know the reason
why the police were looking for him and when asked what his involvement was to
the alleged crime he answered that he does not know anything about the crime,
he is not entitled to the mitigating circumstance of voluntary surrender.—For the
mitigating circumstance of voluntary surrender to be appreciated, the accused
must satisfactorily comply with three requisites: (1) he has not been actually
arrested; (2) he surrendered himself to a person in authority or the latter’s agent;
and (3) the surrender is voluntary. There must be a showing of spontaneity and an
intent to surrender unconditionally to the authorities, either because the accused
acknowledges his guilt or he wishes to spare them the trouble and expense
concomitant to his capture. Voluntary surrender is not a mitigating circumstance
where it appears that the purpose of the accused in going to the authorities is for
an entirely different matter as to inquire merely about a warrant of arrest in
connection with a pending case against the accused for rape. Evidence shows that
Mario Verceles’ surrender to the authorities was not spontaneous and
unconditional. He submitted himself to the police only to clear the matter and to
know the reason why the police were looking for him and when asked what his
involvement was to the alleged robbery and rape, he answered that he does not
know anything about the crime. In People v. Abella, we held that when the
accused goes to a police station merely to clear his name and not to give himself
up, voluntary surrender may not be appreciated. On the basis of the foregoing,
accused-appellant Mario Verceles is not entitled to the benefit of the mitigating
circumstance of voluntary surrender.
YNARES-SANTIAGO, J.:
Accused Mario Verceles alias "Baldog", Felix Corpuz, Mamerto Soriano alias
"Merto", Pablo Ramos and Jerry Soriano were charged with the crime of Robbery
with Rape committed as follows:
That on or about the 19th day of October, 1996, in the morning, in barangay
Malibong, municipality of Urbiztondo, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, with intent of gain and by
means of force upon things, entered the house of one Mrs. Rosita Quilates by
forcibly destroying the grills of the window which they used as an ingress and
once inside, did, then and there, willfully, unlawfully and feloniously take and cart
away the following personal properties: one (1) colored T.V., one (1) VHS, assorted
jewelries, one (1) alarm clock and one (1) radio cassette, all valued at SIXTY
THOUSAND PESOS (P60,000.00) owned by the said Rosita Quilates, and that on
the same occasion, the said accused, conspiring, confederating and helping one
another, did then and there, willfully, unlawfully and feloniously have sexual
intercourse with Maribeth Bolito against her will to the damage and prejudice of
the aforenamed victims.
CONTRARY to Art. 299, par. A(2) in relation to Art. 335 of the Revised Penal Code.1
Of the five accused, Mamerto Soriano and Pablo Ramos remain at large. Only
Mario Verceles, Felix Corpuz and Jerry Soriano were brought to the jurisdiction of
the court. During arraignment, the three accused, duly assisted by counsel,
pleaded not guilty to the crime charged. Thereafter, the prosecution filed a
motion to discharge accused Jerry Soriano as a State Witness. The court
proceeded with the trial of the case pending the resolution of the said motion to
discharge.1âwphi1.nêt
The trial court subsequently discharged accused Jerry Soriano and received his
testimony as state witness. According to Soriano, on October 18, 1996, the five
accused boarded a tricycle owned by Mario Verceles to visit his cousin in barangay
Goliso, located at the boundary of Urbiztondo. At 8:00 in the evening, they
proceeded to barangay Malibong to visit Pepe, a compadre of Mamerto Soriano.
Before reaching Pepe’s place, they stopped at the house of Jerry’s grandmother,
Rosita Quilates. Jerry sensed that his companions had an evil plan, so he and
Pablo Ramos tried to leave. However, Mamerto Soriano poked a gun at Jerry and
told them not to leave. Then, they tied Jerry and Pablo under a mango tree. The
three proceeded to the house of Rosita Quilates. While waiting for the three, Jerry
and Pablo fell asleep. When they woke up at 2:00 a.m., they saw the three
accused carrying a TV set, VHS and other things. They helped the three load the
items in the tricycle. Then they went home to San Jacinto, Pangasinan. Several
days later, they sold the items and Jerry was given three hundred pesos.2
The prosecution witness Maribeth Bolito testified that on October 19, 1996 at
around 2:00 in the morning, she was awakened by a man fondling her breast and
other private parts. She tried to resist and fight back but her strength proved too
weak against her aggressor. Furthermore, the man had a gun pointed at her head.
She later identified her aggressor as Mamerto Soriano. While she was being
ravished, she saw two men standing at the door, whom she identified as accused
Mario Verceles and Felix Corpuz. Soriano undressed her then kissed her on the
body and fondled her breasts for five minutes. She pretended to be thirsty, so
Soriano, holding her tightly, brought her to the kitchen. There he removed his
pants and laid her on the floor and tried to insert his penis inside her vagina.
Maribeth lost consciousness and when she came to, her private part was very
painful and the three accused were gone.3
Dra. Revelina Millan, who examined Maribeth on October 20, 1996, made the
following findings:4
- GO IMP:September 2nd week/96
3 days
- SKIN:
No hematoma No Abrasion
- IE :with healed laceration at 9 o’clock position
- For vaginal smear for presence of spermatozoa
- Result: Negative for sperm
SPO2 Eduardo Fernandez, who investigated the robbery, testified that the
malefactors entered through the window of one of the bedrooms of the house;
that they took personal properties valued at P60,000.00; that Maribeth Bolito was
sexually abused; and that a necklace was recovered from Felix Corpuz.5
Mrs. Rosita Quilates testified that she learned from her granddaughter, Maribeth
Bolito, that her house was robbed and her personal belongings were missing; and
that she was able to recover the properties from a certain Andres Tirano, who
bought them from accused Mamerto Soriano.
In their defense, Felix Corpuz testified that on October 19, 1996, he was in Manila
working as a carpenter in a construction firm. He stayed in Manila from October 5,
1996, and did not visit his hometown until the completion of the job contract on
October 27, 1996. He first learned that he was a suspect in a crime on November
3, 1996.6
Ernesto Lambino, Jr. corroborated the testimony of Felix Corpuz. He testified that
he was the one who recruited Felix to work in Tambo, Rizal, Parañaque as a mason
carpenter. They arrived in Manila on October 5, 1996 and Felix started his work on
October 6, 1996 until October 26, 1996.7
Accused Mario Verceles, for his part, testified that in the evening of October 18,
1996, he attended the wake of Crispulo de Guzman at Barangay San Vicente, San
Jacinto, Pangasinan. There he played cards up to 4:00 a.m. of October 19, 1996.
He left the place at 5:00 a.m. He only learned that the police were looking for him
when his wife fetched him in Mapandan, Pangasinan. He went to the barangay
captain of his place and arranged for his surrender to the authorities. Police
Inspector Rodolfo Tadeo corroborated his testimony that he voluntarily
surrendered to the police on November 5, 1996.8
After trial, the lower court rendered a decision, the dispositive portion of which
reads:9
WHEREFORE, in view of the foregoing, the Court hereby finds accused Felix
Corpuz and Mario Verceles guilty beyond reasonable doubt of the crime of
Robbery with Rape defined and penalized under Article 294, 1, as amended, of
the Revised Penal Code, and there being neither mitigating nor aggravating
circumstance, the Court hereby sentences each to suffer the penalty of Reclusion
Perpetua. Both Felix Corpuz and Mario Verceles are likewise ordered to pay jointly
and solidarily the victim Maribeth Bolito the sum of Two Hundred Thousand Pesos
(P200,000.00) for moral damages, One Hundred Thousand Pesos (P100,000.00)
for exemplary damages and to pay Rosita Quilates the sum of Twenty One
Thousand Pesos (P21,000.00) on the value of the properties which were not
recovered and further orders that the recovered TV, VHS appliances and necklace
be returned to its lawful owner.
SO ORDERED.
Accused Felix Corpuz and Mario Verceles interposed the instant appeal. They
alleged that the trial court erred in discharging Jerry Soriano as a state witness, in
appreciating conspiracy among the accused, in not considering as mitigating
circumstance the voluntary surrender of Mario Verceles, and in awarding damages
to the private complainants.
The appeal lacks merit.
Accused-appellants contend that the discharge of Jerry Soriano did not comply
with the requirements of the Rules of Court. They contend that Soriano’s
testimony does not constitute direct evidence; at most, it was circumstantial in
nature and of minuscule importance.10 Moreover, Jerry Soriano was the most
guilty for he admitted his guilt with regard to the commission of the crime
together with Mamerto Soriano.11
The requirements for the discharge and utilization of an accused as a state witness
are enumerated in Rule 119, Section 1712 of the Revised Rules of Criminal
Procedure, viz:
a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of the accused;
c) The testimony of said accused can be substantially corroborated in its material
points;
d) Said accused does not appear to be the most guilty; and
e) Said accused has not at any time been convicted of any offense involving moral
turpitude.
The trial court did not err in discharging Jerry Soriano to be utilized as a state
witness. First, the testimony of Jerry Soriano was absolutely necessary as the
prosecution has no direct evidence to prove the identity of the malefactors
Mamerto Soriano, Felix Corpuz, Mario Verceles and Pablo Ramos. The record
reveals that the five accused were together on the night the robbery and rape
took place. He may not have witnessed the actual robbery and rape, but he has
personal knowledge of the robbery when he saw the three accused return to the
place where he and Pablo Ramos were allegedly tied, carrying with them the
properties said to have been stolen. Second, Jerry Soriano’s testimony was
corroborated in its material points by other prosecution witnesses and physical
evidence. These are: (a) the testimony of Maribeth Bolito that there were three
malefactors, one of whom sexually abused her and two of whom just stood at the
door; (b) the testimony of Rosita Quilates that her properties were stolen; and (c)
the testimony of SPO2 Renato Solomon that they were able to recover the stolen
properties from a certain Andres Tirano who bought them from accused Mamerto
Soriano. Lastly, Jerry Soriano does not appear to be the most guilty for he was not
a co-conspirator in the robbery with rape. He merely accompanied the accused
and received three hundred pesos as his share in the proceeds of the sale of the
stolen properties. Besides, the question of whether Jerry Soriano appears to be
the most guilty is a factual issue. The discretionary judgment of the trial court on
this matter is seldom interfered with by appellate court except in case of grave
abuse of discretion.13 We find no good reason to disturb the trial court’s findings
of facts.
Granting ex gratia argumenti that not all the requisites of a valid discharge are
present, the improper discharge of an accused will not render inadmissible his
testimony nor detract from his competency as a witness. Any witting or unwitting
error of the prosecution in asking for the discharge, and of the court in granting
the petition, no question of jurisdiction being involved, cannot deprive the
discharged accused of the acquittal provided by the Rules, and of the
constitutional guarantee against double jeopardy.14
On the matter of whether rape was committed, we agree with the trial court’s
ruling that neither the healed lacerations on the vagina of the victim nor the
absence of spermatozoa negates rape. When an alleged victim of rape says she
was violated, she says in effect all that is necessary to show that rape had been
inflicted on her, and so long as her testimony meets the test of credibility, the
accused may be convicted on the basis thereof.15
In the case at bar, the victim’s declaration of her sexual ordeal, which was given in
a straightforward, convincing, credible and satisfactory manner, shows no other
intention than to obtain justice for the wrong committed by accused-appellant
Mamerto Soriano against her. The Court finds no reason to depart from the rule
that the trial court’s evaluation of the credibility of the testimonies of the
witnesses is accorded great weight because it has the unique opportunity of
hearing the witnesses testify and observing their deportment and manner of
testifying.16
We agree with the trial court that conspiracy has been sufficiently proved by the
prosecution. Accused-appellants were one in design with accused Mamerto
Soriano in taking personal properties belonging to others without the latter’s
consent by breaking one of the windows to be used as their ingress. In the course
of the robbery, one of them, particularly Mamerto Soriano, succumbed to lustful
desires and raped Maribeth Bolito while accused-appellants just stood outside the
door and did nothing to prevent Mamerto Soriano. We have previously ruled that
once conspiracy is established between two accused in the commission of the
crime of robbery, they would be both equally culpable for the rape committed by
one of them on the occasion of the robbery, unless any of them proves that he
endeavored to prevent the other from committing the rape.17 The rule in this
jurisdiction is that whenever a rape is committed as a consequence, or on the
occasion of a robbery, all those who took part therein are liable as principals of
the crime of robbery with rape, although not all of them took part in the rape.18
In trying to mitigate his criminal liability, accused-appellant Mario Verceles argued
that the trial court erred in not considering the circumstance of voluntary
surrender in his favor. Upon learning that police authorities were searching for
him in connection with the alleged crime, he immediately proceeded to the
barangay captain of his place and voluntarily surrendered himself. However, the
Solicitor General argues that the surrender of accused-appellant Mario Verceles
was not voluntary and spontaneous for it took him 16 days to show up from the
commission of the crime on October 19, 1996 to November 4, 1996.19
For the mitigating circumstance of voluntary surrender to be appreciated, the
accused must satisfactorily comply with three requisites: (1) he has not been
actually arrested; (2) he surrendered himself to a person in authority or the
latter's agent; and (3) the surrender is voluntary. There must be a showing of
spontaneity and an intent to surrender unconditionally to the authorities, either
because the accused acknowledges his guilt or he wishes to spare them the
trouble and expense concomitant to his capture.20 Voluntary surrender is not a
mitigating circumstance where it appears that the purpose of the accused in going
to the authorities is for an entirely different matter as to inquire merely about a
warrant of arrest in connection with a pending case against the accused for
rape.21
Evidence shows that Mario Verceles’ surrender to the authorities was not
spontaneous and unconditional. He submitted himself to the police only to clear
the matter and to know the reason why the police were looking for him22 and
when asked what his involvement was to the alleged robbery and rape, he
answered that he does not know anything about the crime.23 In People v.
Abella,24 we held that when the accused goes to a police station merely to clear
his name and not to give himself up, voluntary surrender may not be appreciated.
On the basis of the foregoing, accused-appellant Mario Verceles is not entitled to
the benefit of the mitigating circumstance of voluntary surrender.1âwphi1.nêt
We thus hold that accused-appellant’s defense of alibi and denial cannot
overcome Maribeth Bolito’s positive testimony that she was raped and that her
grandmother’s house was robbed, especially since this was substantially
corroborated by the other prosecution witnesses. Time-honored is the rule that
the positive and categorical assertions of witnesses generally prevail over bare
denials.25
In line with established jurisprudence,26 we are constrained to modify the award
of moral damages from P200,000.00 to P50,000.00, as this award is not intended
to enrich the victim but to compensate for her suffering. Moreover, the trial court
committed a reversible error when it awarded exemplary damages in the amount
of P100,000.00 despite the absence of one or more aggravating circumstances.27
As regards the value of the properties belonging to Rosita Quilates that were not
recovered, the records are bereft of any evidence to support such claim. Lastly,
Maribeth Bolito should have been awarded the sum of P50,000.00 for civil
indemnity, as it is mandatory upon a conviction of rape. Such indemnity is distinct
from moral damages and based on different jural foundations.28
WHEREFORE, the assailed decision finding accused-appellants Mario Verceles and
Felix Corpuz guilty beyond reasonable doubt of the crime of Robbery with Rape
punished under Article 294 (1) of the Revised Penal Code and sentencing them to
suffer the penalty of Reclusion Perpetua, is AFFIRMED with the MODIFICATION
that the award of moral damages is reduced from P200,000.00 to P50,000.00; the
award of exemplary damages is DELETED for lack of basis and the sum of
P50,000.00 is awarded for civil indemnity.
SO ORDERED.
14. [No. 35500. October 27, 1932]
The People of the Philippine Islands, plaintiff and appellee, vs.. Jose Rubio,
defendant and appellant.
1.Constitutional Law; Criminal Procedure; Searches and Seizures; Organic Act,
Section 3, Paragraphs 11 and 3, and Code of Criminal Procedure, Sections 95, 96,
97, 98, and 99 Interpreted.—While the place to be searched and the property to
be seized under a search warrant must be particularly described in the warrant,
yet the description is required to be specific only in so far as the conditions will
ordinarily allow.
2.Id.; Id.; Id.; Id.—The eleventh paragraph of section 3 of the Organic Act,
corresponding to the Fourth Amendment to the United States Constitution,
forbids every search that is unreasonable and is construed liberally to safeguard
the right of privacy.
3.Id.; Id.; Id.; Id.—There is no formula for the determination of the reasonableness
of a search and seizure, but each case is to be decided on its own facts and
circumstances.
4.Id.; Id.; Id.; Id.—Search warrants may not be used as a means of gaining access
to a man's house or office and papers solely for the purpose of making search to
secure evidence to be used against him in a criminal or penal proceeding, but they
may be resorted to only when a primary right to such search and seizure may be
found in the interest which the public or the complainant may have in the
property to be seized, or in the right to tfhe possession of it, or when a valid
exercise of the police power renders possession of the property by the accused
unlawful, and provides that it may be taken. (Boyd vs. United States [1886], 116 U.
S., 616; Gouled vs. United States [1920], 255 U. S., 298; U. S. vs. Lefkowitz [1932],
U. S. Supreme Court Advance Opinions.)
5.Id.; Id.; Id.; Id.—Books of account, invoices, and records may be so used as
instruments or agencies for perpetrating frauds upon the government as to give
the public an interest in them which would justify the search for and seizure of
them, under a properly issued search warrant, for the purpose of preventing
further frauds.
6.Id.; Id.; Id.; Id.—Held in this case, as matters of fact, that the search warrant
conformed to constitutional and statutory provisions, and that it has not been
shown that the seizure of the appellant's books, invoices, and records was made
solely for the purpose of securing evidence to be used against him in a criminal
prosecution. People vs. Rubio, 57 Phil., 384, No. 35500 October 27, 1932
MALCOLM, J.:
This is an appeal from an order of the Court of First Instance of Manila, Judge
Moran presiding, denying appellant's motion to declare null and void a search
warrant issued on December 26, 1930, and to have returned to him the books of
account, invoices, and records which were seized by virtue of the warrant. The
case was originally assigned to a Division of Five and was there decided, but
subsequently, on representations being made that the interpretation of an Act of
Congress was involved, the Division ordered its decision set aside and the transfer
of the case to the court in banc.
The Administrative Code, section 1434, grants police power to internal revenue
agents. Acting pursuant to this authority, the chief secret service agent and a
supervising agent of the Bureau of Internal Revenue gave testimony under oath
before Judge Revilla, in which they specified the premises situated at No. 129
Calle Juan Luna, District of Binondo, City of Manila, occupied by Jose Rubio,
manager of the Simplex Trading Corporation, which it was desired to search. The
witnesses, among other things, stated:
Proof by affidavit having this day been made before me, E. P. Revilla, Judge of the
Court of First Instance of the City of Manila, Philippine Islands, by the complainant
on oath of Juan Evaristo and Augusto Piccio of the City of Manila, P. I., that the
defendant Jose Rubio keeps illegally and feloniously fraudulent books, invoices
and records, and that he verily believes upon probable cause that the said books,
invoices and records, at No. 129, Calle Juan Luna in the City of Manila, P. I., and
the said (personal) property is now being used in the commission of felony.

It has been reported to me by a person whom I considered reliable that in said
premises there are fraudulent books, invoices and records.
I have watched personally the foregoing house for several times in company of the
complainant and I can assert positively and with a probable case that the
prohibited fraudulent books, invoices and records, exist and being conducted in
the said house, and the occupant of the same keeps in his possession effects and
devices to wit: Fraudulent books of the Simplex Trading Corporation & to
subsidiary companies Paramount Trading Corporation & New York Trading Corp.
Upon probable cause thus being shown, a search warrant was issued in the usual
from, reading as follows:
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE COURT OF FIRST INSTANCE OF THE CITY OF MANILA
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, } was denied.
You are therefore commanded to take with you the necessary and proper
assistance and to enter, in the day time or in the night time, into the said dwelling
house and there diligently search for fraudulent books, invoices and records, and
that you seize and bring them before this court, to be disposed of according to
law.
Given under my hand this 26th day of December, 1930.
(Sgd.) E. P. REVILLA
Judge, Court of First Instance
On the same day, internal revenue agents proceeded to the place indicated in the
warrant, searched the premises, and took therefrom books, invoices, and
documents belonging to the Simplex Trading Corporation of which Jose Rubio was
the manager. Thereafter, as indicated, a motion was presented on behalf of Rubio
to secure a pronouncement of nullity of the search warrant, which motion, after
receiving memoranda in support and in opposition but without taking evidence,

VERSUS
JOSE RUBIO, Manager of the Simplex Trading
Corporation, Paramount Corporation and
New York Trading Corporation, defendant.
The People of the Philippine Islands, to the Internal
Revenue Agents of the City of Manila.
GREETING:
The particular portions of the Act of Congress which are relied upon are found in
the Philippine Bill of Rights, being paragraphs 3 and 11 of section 3 of the Act of
Congress of August 29, 1916, commonly referred to as the Philippine Autonomy
Act. These portions of the Organic Act Provide: "That the right to be secure
against unreasonable searches and seizures shall not be violated" (sec. 3, par. 11);
} and "That no person shall . . . be compelled in any criminal case to be a witness
against himself" (sec. 3, par. 3). The applicable statutory provisions are sections
95, 96, 97, 98, and 99 of the Code of Criminal Procedure reading as follows:
SEC. 95. A search warrant is an order in writing, issued in the name of the People
of the Philippine Islands, signed by a judge or a justice of the peace, and directed
to a peace officer, commanding him to search for personal property and bring it
before the court.
SEC. 96. It may be issued upon either of the following grounds:
1. When the property was stolen or embezzled.
2. When it was used or when the intent exists to use it as the means of
committing a felony.
SEC. 97. A search warrant shall not issue except for probable cause and upon
application supported by oath particularly describing the place to be searched and
the person or thing to be seized.
SEC. 98. The judge or justice must, before issuing the warrant, examine on oath
the complaint and any witnesses he may produce and take their depositions in
writing.
SEC. 99. If the judge or justice is thereupon satisfied of the existence of facts upon
which the application is based, or that there is probable cause to believe that they
exist, he must issue the warrant, which must be substantially in the following
form:
The errors assigned on appeal, connecting up with the order of the trial court, the
statement of the case, and the law as herein set forth, are the following:
1. The lower court erred in not holding that the search warrant was illegal and
void for failure to observe the constitutional and statutory provisions providing for
its issue.
2. The lower court erred in holding that even if the warrant were illegal and void
appellant's books and papers might be retained because they were proper
subjects for seizure under a search warrant.
3. The lower court erred in not holding that the seizure of appellant's books and
papers was made solely for the purpose of using them as evidence against him in
a criminal prosecution and was, therefore, unlawful.
The point made in the first error was not originally passed upon the trial court,
and is plainly without merit. The requirements of the law were substantially, and
even literally, complied with in this case. Appellant's contention that the search
warrant was issued without the complainants or any witnesses having been
examined, is untenable. The depositions speak for themselves. It is also
contended that the application and the warrant did not particularly describe the
things to be seized. The verified statements of the two internal revenue agents
and the warrant issued by the Court of First Instance of Manila all describe the
property sought to be seized as "fraudulent books, invoices and records". While it
is true that the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder, yet the
description is required to be specific only in so far as the circumstances will
ordinarily allow. It has been held that, where, by the nature of the goods to be
seized, their description must be rather general, it is not required that a technical
description be given, as this would mean that no warrant could issue. Appellant
has not shown that the internal revenue agents exceeded their powers under the
warranty by seizing property other than that described in the warrant question.
The list of books, invoices, and records seized by said officers is the best evidence
to show that they strictly obeyed the command of their warrant by seizing those
things, and only those described in the search warrant.
Under the second error, it is claimed that "the books, invoices, and records seized
are property which one may lawfully possess; they were searched and seized
solely for the purpose of using them as evidence to prove an offense supposed to
have been committed by appellant against the internal revenue customs laws,
which search and seizure for the purpose intended is prohibited by law." Reliance
is placed on the Philippine cases of Regidor vs. Araullo ([1904], 5 Off. Gaz., 955);
Uy Kheytin vs. Villa-Real ([1920], 42 Phil., 886); and United States vs. De los Reyes
and Esguerra ([1911], 20 Phil., 467). An examination of the first two cited cases
reveals that the seizures made under the warrants issued therein were irregular
and manifestly in violation of law. In the first case, for instance, the court
observed:
A causal examination of the property mentioned in the affidavit and the list of
books, papers, and documents actually seized by the said officers, as represented
by their signed statement, above quoted, will show that the officers, in executing
the said search warrant, did not limit themselves, in seizing property, to that
which was described in the affidavit or search warrant. (Regidor vs. Araullo,
supra.)
In the second case, the court said:
The important question that remains to be decided is whether, under a search
warrant for opium, the officers of the law were authorized to seize books,
personal letters, and other property having a remote or no connection with
opium. (Uy Kheytin vs. Villa-Real, supra.)
Under these circumstances, it is evident that the seizures made were in excess of
the authority given to the seizing officers. In the case at bar, however, it has been
shown that the internal revenue agents strictly obeyed the command of their
warrant by seizing no other property than that described therein.
In the third case cited by the appellant, that of United States vs. De los Reyes and
Esguerra, supra, the holding was that no public officer has the right to enter the
premises of another for the purpose of search or seizure against the will of the
occupant and without the proper search warrant. This case is entirely foreign to
the point under discussion, inasmuch as in the instant case a search warrant was
issued. From the above, it will be seen that the three Philippine cases relied upon
by the appellant rest upon different facts from those in the case at bar.
After the decision in Division had been promulgated, the opinion of the United
States Supreme Court of April 11, 1932, delivered in the case of United States of
America vs. Daniel M. Lefkowitz and Pauline Paris was received, and it is now
urged that this opinion is controlling. Of course, if the opinion, on examination, be
found to support the views of the appellant, it would become our duty, even as
against any pride which one might have in maintaining a position previously taken,
to change front to conform to the pronouncements of the higher court. Turning to
the opinion just mentioned, we find it said: "All the searches and seizures were
made without a search warrant" — in contrast, the searches and seizures in the
case at bar were made with a search warrant. Further, it was said: "The only
question presented is whether the searchers of the desks, cabinet and baskets
and the seizures of the things taken from them were reasonable as an incident of
the arrests" — an entirely different state of facts from those before us. Again, it
was said: "The Fourth Amendment forbids every search that is unreasonable and
is construed liberally to safeguard the right of privacy" — an admonition which
should be respected in this jurisdiction where constitutional rights are as sacred as
in the United States proper. Finally, a contrast was suggested between the search
of one's house or place of business made contemporaneously with his lawful
arrest therein upon a valid warrant of arrest and a search warrant, and it was said:
Respondents' papers were wanted by the officers solely for use as evidence of
crime of which respondents were accused or suspected. They could not lawfully
be searched for and taken even under a search warrant issued upon ample
evidence and precisely describing such things and disclosing exactly where they
were. (Gouled vs. United States, 255 U. S., 298, 310.)
xxx xxx xxx
Here, the searches were exploratory and general and made solely to find evidence
of respondents' guilt of the alleged conspiracy or some other crime. Though
intended to be used to solicit orders for liquor in violation of the Act, the papers
and other articles found and taken were in themselves unoffending. The decisions
of this court distinguish searchers of one's house, office, papers or effects merely
to get evidence to convict him of crime from searches as such as those made to
find stolen goods for return to the owner, to take property that has been forfeited
to the Government, to discover property concealed to avoid payment of the
duties for which it is liable, and from searches such as those made for the seizure
of counterfeit coins, burglars' tools, gambling paraphernalia and illicit liquor in
order to prevent the commission of crime.
We note that the opinion in the Lefkowitz case relies on previous decisions of the
United States Supreme Court in Gouled vs. United States ([1920], 255 U. S., 298),
and Go-Bart Importing Co. vs. United States ([1930], 282 U. S., 344). In the first
case, it was said:
. . . search warrants . . . may not be used as a means of gaining access to a man's
house or office and papers solely for the purpose of making search to secure
evidence to be used against him in a criminal or penal proceeding, but . . . they
may be resorted to only when a primary right to such search and seizure may be
found in the interest which the public or the complaint may have in the property
to be seized, or in the right to the possession of it, or when a valid exercise of the
police power renders possession of the property by the accused unlawful and
provides that it may be taken. (Boyd Case, 116, U. S., 623, 624, L. ed., 748; 6 Sup.
Ct. Rep., 524.)
There is no special sanctity in papers, as distinguished from other forms of
property, to render them immune from search and seizure, if only they fall within
the scope of the principles of the cases in which other property may be seized,
and if they be adequately described in the affidavit and warrant. . . . we cannot
doubt that contracts may be so used as instruments or agencies for perpetrating
frauds upon the Government as to give the public an interest in them which
would justify the search for and seizure of them, under a properly issued search
warrant, for the purpose of preventing further frauds.
xxx xxx xxx
As to the contract with Steinthal, also a stranger to the indictment. It is not
difficult, as we have said, to imagine how an executed written contract might be
an important agency or instrumentality in the bribing of a public servant and
perpetrating frauds upon the Government so that it would have a legitimate and
important interest in seizing such a paper in order prevent further frauds, . . . .
As to the second case, it rested on the proposition that a general exploratory
search of premises, the seizure of papers therefrom, and their retention for use as
evidence in a criminal proceeding cannot be sustained where made at a time
when no crime was being committed and under a false claim of possession of a
search warrant, by one making of an arrest of persons on the premises under
color of an invalid warrant, who required one of them, by pretention of right and
threat or force, to open a desk and safe. It was further ruled that, there is no
formula for the determination of the reasonableness of a search and seizure, but
each case is to be decided on its own facts and circumstances.
This brings us in logical order to the third error and the point often made that the
seizure of appellant's books, invoices, and records was made solely for the
purpose of using them as evidence against him in a criminal prosecution. The
question, in its final analysis, is, were appellant's books, invoices, and records
seized solely for use as evidence of a crime of which the appellant was accused or
suspected? — or were the books, invoices, and records seized in order to prevent
the further perpetration of fraud? In the first place, it is to be observed that the
public has an interest in the proper regulation of appellant's books. (Act No. 3292,
section 4.) In the second place, the books belonged to a corporation of which the
appellant was simply the manager. And in the third place, the search warrant only
issued on a showing of probable cause — to adopt the language alike of section
96 of the Code of Criminal Procedure and the search warrant — that "fraudulent
books, invoices, and records" were "now being used in the commission of a
felony."
Finally, while the assertion is oft-repeated that the books, invoices, and records
were taken solely for the purpose of being used as evidence against Rubio, we
find no support for this contention in the record. In the trial court, the assistant
city fiscal said: "As we have stated above, the search and seizure in this case were
made under the provisions of the internal-revenue laws and the authority of a
search warrant, and not for the purpose of obtaining evidence, but with a view to
seize the instruments used in the violation of said laws committed by the
defendant." On appeal, the prosecution persistently maintains its position that
the seizure was made with the object of preventing the use of the books of
account, documents, and papers in the commission of further offenses or fraud or
against the Government. Not a scintilla of evidence is to be found in the record to
prove that the Government has used the books of account, documents, and
papers as evidence against the appellant, or that the Government ever had the
intention of so doing. All we know is, that an information was filed against Rubio,
charging him with a violation of the Customs Law, and that he compromised
another case with the Bureau of Internal Revenue on the payment of the sum of
P100,000. On this showing, we perforce cannot deduce that the books of account,
documents, and papers were wanted solely for use as evidence of a crime.
A thorough reexamination of the case, in the light of the arguments presented
and the authorities cited, leads us to the same conclusion as before, namely, that
no constitutional right of the appellant was violated; that the letter of the law was
followed, and that the order of the trial judge was correct in all particulars.
Wherefore, the judgment will be affirmed, with the costs of this instance against
the appellant.

15. No. L-27511. November 29, 1968.
IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, SIMON
LUNA, petitioner-appellant, vs. HON. LORENZO M. PLAZA, as Judge of the
Municipal Court of Tandag, Surigao del Sur; HON. SANTOS B.
BEBERINO, as Provincial Fiscal of Surigao del Sur; and THE PROVINCIAL WARDEN
of Surigao del Sur, respondents-appellees.
Evidence; Witnesses; Credibility; Trial court's findings as to the credibility of
witnesses will not be interfered with by appellate courts; Exception.—As a rule
where the issue is one of credibility of witnesses, appellate courts will not
generally disturb the findings of the trial court, considering that it is in a better
position to decide the question, having seen and heard the witnesses themselves
and observed their deportment and manner of testifying during the trial unless
there is a showing that it has overlooked certain facts of substance and value, that
if considered, might affect the result of the case (People v. Sinaon, L-15631, May
27, 1966).
Supreme Court; Appeal; Effect of appeal to Supreme Court on only questions of
law.—Where petitioner or appellant appealed directly to the Supreme Court and
raised therein only questions of law, the effect is that: he has thereby waived the
right to raise any question of fact (Millar v. Nadres, 74 Phil. 307; Portea v.
Pabellon, 47 O.G. 655; Flores v. Plasina, 50 O.G. 1073) and, consequently, the
findings of facts of the trial court, under the rules and precedents, must be
deemed final and binding upon the appellate court (Abijuela, et al. v. Dolosa, et
al., L14245, Dec. 29, 1960).
Criminal procedure; Warrant of arrest; Constitutional and statutory provisions
governing; Conditions before municipal judge may issue warrant of arrest;
Republic Act No. 3828 does not prohibit the municipal judge from adopting the
questions asked by a previous investigator; Ruling in Doce v. Branch II of CFI of
Quezon, et. al, L-26437, March 13, 1968, cited.—The Constitution, in Section 1 (3),
Article III, provides that no warrant shall issue but upon probable cause, to be
determined by the judge after examination of witnesses under oath or affirmation
of the complainant and the witnesses he may produce. Conformably to said
provision, Republic Act No. 3828, approved June 22, 1963, inserted in section 87
(c) of the Judiciary Act of 1948 this paragraph: "No warrant of arrest shall be
issued by any justice of the peace in any criminal case filed with him unless he first
examines the witness or witnesses personally, and the examination shall be under
oath and reduced to writing in the form of searching questions and answers."
Before a Municipal Judge may issue a warrant of arrest under the foregoing
provisions, the following conditions must first be fulfilled: (1) he must examine the
witnesses personally; (2) the examination must be under oath; and (3) the
examination must be reduced to writing in the form of searching questions and
answers. The existence of probable cause depends to a large degree upon the
finding or opinion of the judge conducting the examination. In line with this
principle is the view that Republic Act No. 3828 does not prohibit the Municipal has held that preliminary examination is not an essential part of due process of
Judge from adopting the questions asked by a previous investigator. law (People v. Olandag, 92 Phil. 286). Preliminary examination may be conducted
by the Municipal Judge, prior to the issuance of the warrant, either in the
The ruling in Doce v. Branch II of ,the CFI of Quezon, et al., L-26437, March 13,
presence, or in the absence, of the accused. In the case at bar, the petitioner
1968, wherein this Court held that the warrant of arrest issued therein was
(accused) waived the preliminary investigation before respondent Municipal
irregularly issued is not applicable to the case at bar for the facts are different.
Judge, and he filed a petition for bail. The petition for bail was at first granted by
There, instead of searching questions and answers, there were only affidavits of
respondent Judge, but later the order granting bail was revoked. These acts of the
respondent and her one witness. Moreover, said affidavits were sworn to before
petitioner subsequent to his arrest constitute an implied admission on his part
Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest. In
that there was a probable cause for the issuance of the warrant of arrest and a
the instant case, the respondent Judge personally examined under oath the
waiver of whatever irregularity, if any there was, that attended his arrest (Doce v.
witnesses by asking questions, that were adopted from a previous investigation,
Branch II of the CFI of Quezon, L-26437, March 13, 1968, 22 SCRA 1031).
and considered by him as sufficiently searching and which questions and the
answers thereto were in writing and sworn to before him prior to his issuance of Same; Instant opinion; Purpose and intendment clarified; Purpose of amendment
the order of arrest. introduced by Republic Act 3828; Strict compliance of the provision of Republic
Act 3828 emphasized.—We wish to stress, however, that what has been stated in
Same; Meaning of the term "searching questions and answers."—The term
this opinion is certainly not intended to sanction the return to the former practice
"searching questions and answers" means only, taking into consideration the
of municipal judges of simply relying upon affidavits or sworn statements that are
purpose of the preliminary examination which is to determine "whether there is a
made to accompany the complaints that are filed before them, in determining
reasonable ground to believe that an offense has been committed and the
whether there is a probable cause for the issuance of a warrant of arrest. That
accused is probably guilty thereof so that a warrant of arrest may be issued and
practice is precisely what is sought to be avoided by the amendment of Section 87
the accused held for trial" (Sec. 1, Rule 112, Rules of Court), such questions as
(c) of Republic Act 296 (Judiciary Act of 1948) which requires that before a
have tendency to show the commission of a crime and the perpetrator thereof.
municipal judge issues a warrant of arrest he should first satisfy himself that there
What would be searching questions would depend on what is sought to be
is a probable cause by examining the witnesses personally, and that the
inquired into, such as: the nature of the offense, the date, time, and place of its
examination must be under oath and reduced to writing in the form of searching
commission, the possible motives for its commission; the subject, his age,
questions and answers. It is obvious that the purpose of this amendment is to
education, status, financial and social circumstances, his attitude toward the
prevent the issuance of a warrant of arrest against a person based simply upon
investigation, social attitudes, opportunities to commit the offense; the victim, his
affidavits of witnesses who made, and swore to, their statements before a person
age, status, family responsibilities, financial and social circumstances,
or persons other than the judge before whom the criminal complaint is filed. We
characteristics, etc. The points that are the subject of inquiry may differ from case
wish to emphasize -strict compliance by municipal or city judges of the provision
to case.
of Section 87 (c) of the Judiciary Act of 1948, as amended by Rep. Act 3828, in
order to avoid malicious and/or unfounded criminal prosecution of persons.

Same; Preliminary examination; Not a part of due process; How conducted by
Municipal Judge; Effect of waiver of preliminary investigation; Where application
for bail before municipal judge constitutes an implied admission that there was a
probable cause for the issuance of the warrant of arrest; Case at bar.—This Court
Habeas corpus; When writ of habeas corpus not allowed.—If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge and that the court or judge had jurisdiction to
issue the process or make the order, the writ shall not be allowed (Cf. Sec. 4, Rule
102, Rules of Court). Luna vs. Plaza, 26 SCRA 310, No. L-27511 November 29, 1968
DIRECT APPEAL from a decision of the Court of First Instance of Surigao del Sur.
Garcia, /.
The facts are stated in the opinion of the Court.
Sisenando Villaluz and Juan T. David for petitionerappellant.
Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M.
Amores for other respondents-appellees.
Provincial Fiscal Santos B. Beberino in his own behalf as respondent-appellee.
ZALDIVAR, J.:
Appeal from the decision of the Court of First Instance of Surigao del Sur, dated
April 20, 1967, dismissing the petition for a writ of habeas corpus, filed by herein
petitioner-appellant Simon Luna—hereinafter referred to simply as petitioner—
who was charged with murder in Criminal Case No. 655-New of the same court.
The criminal action was commenced by T-Sgt. Candido Patosa, PC investigator of
Tandag, Surigao del Sur, by filing with respondent Municipal Judge Lorenzo M.
Plaza, of the Municipal Court of Tandag, criminal case No. 1138 charging the
accused, herein petitioner, with the crime of murder. Supporting the complaint
were sworn statements of the witnesses for the prosecution, in the form of
questions and answers taken by T-Sgt. Patosa, and subscribed and sworn to before
the respondent Judge at the time of the filing of the complaint. The respondent
Judge examined the prosecution witnesses by reading to them "all over again the
questions and answers" in their statements in writing, and the witnesses-affiants
declared before said Judge that the questions were propounded by T-Sgt. Candido
Patosa, and that the answers were made by them. The affiants further declared
before respondent Judge that their answers were true, and were freely and
voluntarily made; that they fully understood the questions and answers, and that
they were willing to sign their respective affidavits. The affiants signed their
respective affidavits in the presence of the respondent Judge, who also signed
after the usual procedure of administering the oath.
Considering the answers of the affiants to the questions contained in their sworn
statements, together with the postmortem and autopsy report on the dead body
of the victim Jaime Diaz Ng, the certificate of death, the sketch showing the
position of the victim and the accused, and Exhibits 6, 7, 8, 12, and 13 of herein
respondents, the respondent Judge opined that there was reasonable ground to
believe that the crime of murder had been committed and the accused was
probably guilty thereof. Respondent Judge issued the order and warrant of arrest,
specifying therein that no bail should be accepted for the provisional release of
the accused. On February 20, 1967, upon motion of petitioner that he be
admitted to bail upon the ground that the evidence of guilt was not strong,
respondent Judge issued an order granting bail, fixing it at P30,000.00; which
order, however, respondent Judge later revoked, and petitioner was denied bail.
The case was subsequently remanded to the Court of First Instance of Surigao del
Sur, after petitioner filed a waiver of his right to preliminary investigation. On
March 9, 1967 respondent Provincial Fiscal filed an information charging herein
petitioner with the crime of murder. The petitioner was detained in the provincial
jail of Surigao del Sur under the custody of respondent Provincial Warden.
On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with the
Court of First Instance of Surigao del Sur, therein docketed as Special Proceedings
No. 105-New, claiming that he was being deprived of liberty without the due
process of law, on the ground that the imprisonment and detention was the result
of a warrant of arrest issued by respondent Judge in violation of Republic Act No.
3828, and praying for the annulment of the order for his arrest and his discharge
from confinement.
Herein respondents filed their answer, alleging that Republic Act No. 3828 had
been substantially complied with; that a motion to quash, and not a petition for
habeas corpus was the proper remedy; and that petitioner's application for bail
constituted a waiver of the right to question the validity of the arrest.
After trial, the Court of First Instance of Surigao del Sur rendered its decision,
dated April 20, 1967, holding that respondent Municipal Judge had substantially
complied with Republic Act No. 3828, and consequently denied the application for
the writ of habeas corpus, and dismissed the case. Hence this appeal.
Petitioner, in his assignment of errors, claims that the trial court erred, as follows:
1. In giving absolute credence to the oral testimony of the respondent Judge to
the effect that he adopted and made his own the questions and answers taken by
T-Sgt. Patosa, PC Investigator, one of the prosecution witnesses, because the
records show the contrary;
2. In denying the writ of habeas corpus and in dismissing the petition.
1. In support of his first assignment of error, petitioner contends that Republic Act
No. 3828 imposes on a municipal judge, before he can issue a warrant of arrest,
two specific duties, to wit: (1) personally examine the complainant and witnesses
with "searching questions and answers", which means that the judge must cross-
examine them in case their affidavits are presented; and (2) said examination
must be reduced to writing and form part of the records of the case. The record of
the instant case, according to petitioner, does not show said examination was
performed by respondent Judge. Petitioner urges that the absence of any
document in the record that shows that respondent Judge had performed the
examination is positive proof that respondent Judge did not perform his duty,
notwithstanding his testimony before the Court of First Instance of Surigao del
Sur, during the hearing of this case, to the effect that he adopted the questions
propounded to each of the prosecution witnesses by T-Sgt. Patosa. Petitioner
maintains that this testimony, being self-serving intended to cover up the f ailure
to comply with the law, should not have been believed by the Court of First
Instance, and said court thereby committed errors when, believing said testimony,
it found that there had been substantial compliance with the requirement that
the municipal judge should personally examine the witnesses. Petitioner further
maintains that assuming that the adoption of the questions made by T-Sgt. Patosa
constituted substantial compliance with the requirement that the judge should
examine the witnesses by asking searching questions, still the second
requirement, that of reducing to writing the said procedure of adoption, has not
been complied with; and so, Republic Act No. 3828 was still violated, and the
issuance of the warrant of arrest was in violation of said Act and the Constitution
and constituted denial of due process.
Petitioner contends that the trial court erred in giving absolute credence to the
testimony of respondent Municipal Judge. Regarding credibility of witnesses, this
Court has consistently held that, as a general rule, the lower court's f indings as to
the credibility of witnesses will not be interfered with by appellate courts. Thus, in
the case of People vs. Sinaon1 this Court said:
"Time and again, we have held that as a rule where the issue is one of credibility
of witnesses, appellate courts will not generally disturb the findings of the trial
court, considering that it is in a better position to decide the question, having seen
and heard the witnesses themselves and observed their deportment and manner
of testifying during the trial, unless there is a showing that it has overlooked
certain facts of substance and value, that if considered, might affect the result of
the case."
Petitioner has appealed "from the decision/order" of the trial court "to the
Honorable Supreme Court of the Philippines, on the ground that the same is
contrary to law and the Philippine Constitution" and prayed that "all the records
of the proceeding and the evidence, oral and documentary, be transmitted or
forwarded to the Honorable Supreme Court x x x".2 Since petitioner appealed
directly to this Court he must, therefore, raise only questions of law and he has
thereby waived the right to raise any question of fact,3 and the findings of facts of
the trial court, under the rules and precedents, must be deemed f inal and binding
upon this Court.4
The findings of facts of the trial court are found in the following portion of the
decision appealed from, to wit:
"There is no dispute that there is a valid complaint charging the accused Simon
Luna, the herein petitioner with the crime of Murder filed with the respondent
Judge authorized to conduct the examination of the witnesses for the prosecution
for the purpose of determining the existence of probable cause before the
issuance of the corresponding warrant of arrest; that the complaint is supported
by the statements of the witnesses under oath in writing in the form of questions
and answers and other documents attached to the complaint; that before the
issuance of the corresponding warrant of arrest, the respondent judge personally
examined the witnesses for the prosecution on their statements taken by T-Sgt.
Candido Patosa by reading the questions and answers all over again to the affiants
who confirmed to the respondent Judge that the statements contained in their
sworn statements are true; that being satisfied that the questions and answers
contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of
his searching questions and answers as required by law, the respondent Judge
adopted ,them as his own personal examination of the witnesses for the purpose
of determining the existence of probable cause, the order and the warrant of
arrest were issued to take the accused into custody for the commission of the
offense charged (Exhibits "H", "H-1", "I" and "I-1"-petitioner) ; and that the
petitioner waived his right to the preliminary investigation (Exhibit "12"-
respondent) and applied to be admitted to bail."
Petitioner, however, claims that the failure of respondent Judge to put in writing
that he adopted the questions asked by T-Sgt. Patosa and his failure to ask
"searching questions" violated Republic Act No. 3828.
Republic Act No. 3828, approved June 22, 1963, inserted in section 87 (c) of 'the
Judiciary Act of 1948 the following paragraph:
"No warrant of arrest shall be issued by any justice of the peace in any criminal
case filed with him unless he first examines the witness or witnesses personally,
and the examination shall be under oath and reduced to writing in the form of
searching questions and answers."
Before a municipal judge may issue a warrant of arrest, the following conditions
must first be fulfilled: (1) he must examine the witnesses personally; (2) the
examination must be under oath; (3) the examination must be reduced to writing
in the form of searching questions and answers. Were these conditions fulfilled in
the instant case?
The first condition was fulfilled. The trial court found as a fact that "the
respondent judge personally examined the witnesses for the prosecution x x x;"
that respondent judge adopted as his own personal examination the questions
asked by T-Sgt. Patosa as appearing in the written statements, which he read over
again to the witnesses together with the answers given therein, asking the
witnesses whether said answers were theirs, and whether the same answers were
true, to which the witnesses answered in the affirmative. Republic Act No. 3828
does not prohibit the municipal Judge from adopting the questions asked by a
previous investigator.
It appears that the sworn statements5 of the witnesses state at the beginning that
the sworn statement was "taken by T-Sgt. Candido L. Patosa", and does not state
that it was taken by the respondent municipal Judge himself. This circumstance is
explained by the fact that said written statements already taken by T-Sgt. Patosa
were delivered to respondent Municipal Judge who adopted the questions therein
in his examination, because he considered them searching questions. Respondent
Judge presumably did not consider it necessary to change the introductory
remarks in each of the written statements. But that he made the examination
personally cannot be doubted; it is so stated in the order dated February 18, 1967,
which recites:
"After examining the witnesses personally and under oath there is reasonable
ground to believe that an offense for murder has been committed and that the
accused, Simon Luna, is probably guilty thereof." (Exh. H)
The ruling- in Doce vs. Branch II of the Court of First Instance of Quezon, et al.,6
wherein this Court held that the warrant of arrest issued therein was irregularly
issued is not applicable to the case at bar for the simple reason that the facts are
different. This Court in that case said:
"There is merit in the assertion that the warrant of arrest was irregularly issued.
Section 87 of the Judiciary Act as amended by Republic Act 3828 requires that the
Municipal Judge issuing the same, personally examine under oath the witnesses,
and by searching questions and answers which are to be reduced to writing. Here,
instead of searching questions and answers, we have only the affidavits of
respondent and her one witness. Moreover, said affidavits were sworn to before
Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest."
In the instant case, as stated above, the respondent Municipal Judge personally
examined under oath the witnesses by asking questions, that were adopted from
a previous investigation, and considered by him as sufficiently searching and
which questions and the answers thereto were in writing and sworn to before him
prior to his issuance of the order of arrest.
The second condition required by Republic Act No. 3828 for the issuance of a
warrant of arrest was also fulfilled. The trial court found that the complaint was
"supported by statements of the witnesses under oath." The record also shows
the following documents to have been subscribed and sworn to before
respondent Judge, namely: Exhibit B, sworn statement of herein petitioner Simon
Luna y Albay; Exhibit C, sworn statement of Eusebio Corpuz; Exhibit D, sworn
statement of Bruno M. Zafra; Exhibit E, sworn statement of Martiliano J. Bautista;
Exhibit F, sworn statement of Janedina Diaz y Bandoy.
The third condition required by Republic Act No. 3828 was likewise fulfilled. The
examination of the witnesses was written down, in the form of searching
questions and answers. The term "searching questions and answers" means only,
taking into consideration the purpose of the preliminary examination which is to
determine "whether there is a reasonable ground to believe that an offense has
been committed and the accused is probably guilty thereof so that a warrant of
arrest may be issued and the accused held for trial",7 such questions as have
tendency to show the commission of a crime and the perpetrator thereof. What
would be searching questions would depend on what is sought to be inquired
into, such as: the nature of the offense, the date, time, and place of its
commission, the possible motives for its commission; the subject, his age,
education, status, financial and social circumstances, his attitude toward the
investigation, social attitudes, opportunities to commit the offense; the victim, his
age, status, family responsibilities, financial and social circumstances,
characteristics, etc. The points that are the subject of inquiry may differ from case
to case. The questions, therefore, must to a great degree depend upon the Judge
making the investigation. At any rate, the court a quo found that respondent
Judge was "satisfied that the questions and answers contained in the sworn
statements taken by T-Sgt. Patosa partake of the nature of his searching questions
and answers as required by law," so the respondent Judge adopted them.
Petitioner's further contention that the issuance of the warrant of arrest was a
violation of the Constitution and of procedural due process is likewise untenable.
The Constitution, in Section 1(3), Article III, provides that no warrant shall issue
but upon probable cause, to be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. The
constitutional requirement of examination of witnesses under oath was, as shown
above, fulfilled. The existence of probable cause depended to a large degree upon
the finding or opinion of the judge conducting the examination. Respondent judge
found that there was probable cause, as stated in his order of arrest, that "after
examining the witnesses personally and under oath there is a reasonable ground
to believe that an offense of murder has been committed and that the accused,
Simon Luna, is probably guilty thereof."
Petitioner's last contention that the warrant of arrest issued was a violation of
procedural due process because of the alleged defective preliminary examination
has no leg to stand on, in view of what we have hereinbefore stated. Moreover,
this Court has held that preliminary examination is not an essential part of due
process of law.8 Preliminary examination may be conducted by the municipal
judge, prior to the issuance of the warrant of arrest, either in the presence, or in
the absence, of the accused. The record shows that herein petitioner waived the
preliminary investigation before respondent Municipal Judge, and instead, he filed
a petition for bail. The petition for bail was at first granted by respondent Judge,
but later the order granting bail was revoked. This conduct of petitioner indicates
that he had waived his objection to whatever defect, if any, in the preliminary
examination conducted by respondent Judge prior to the issuance of the warrant
of arrest. Indeed, petitioner has no substantial—much less legal—ground to
complain that he was denied the due process of law.
We find that the trial Judge committed no error when he held that, based upon
the facts shown during the hearing of this case, respondent Municipal Judge had
substantially complied with the requirements of the law—specifically Republic Act
3828—before issuing the warrant of arrest in this case.
2. In the light of what has been said above, it appears clear that petitioner's
second assignment of error, that the trial court erred in denying the writ of
habeas corpus, is untenable. Moreover, Section 4 of Rule 102 of the Rules of Court
provides in part, as follows:
"SEC. 4. When writ not allowed or discharge authorized.—If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge x x x and that the court or judge had
jurisdiction to issue the process x x x or make the order, the writ shall not be
allowed. x x x."
All the conditions, in the afore-quoted Section 4, set forth to deny the writ, are
present in the instant case. It is shown that petitioner is detained and is in the
custody of the respondent Provincial Warden by virtue of the order of arrest
dated February 18, 1967, and the order dated February 21, 1967, of respondent
Judge, to confine petitioner in the provincial jail. It is not disputed by petitioner
that respondent Judge had jurisdiction to issue the warrant of arrest and the
order of commitment under the provisions of Section 47, Republic Act No. 409, as
amended by Republic Act No. 1201, although petitioner did question the validity
of the warrant of arrest for allegedly having been issued in violation of Republic
Act No. 3828—which claim We have found to be untenable. Consequently, the
trial Judge did not commit an error in denying the writ of habeas corpus prayed
for.
At any rate, we believe that, if at all, the remedy available to the petitioner herein,
under the circumtances stated in this opinion, is not a petition for a writ of habeas
corpus but a petition to quash the warrant of arrest or a petition for a
reinvestigation of the case by the respondent Municipal Judge or by the Provincial
Fiscal.
writings which were actually subscribed and sworn to before him. Moreover, We
are of the considered view that no substantial right of the petitioner had been
violated because, as hereinbefore adverted to, petitioner waived his right to
preliminary investigation after he was arrested, and he took the step of applying
for bail before respondent Municipal Judge. These acts of the petitioner
subsequent to his arrest constitute an implied admission on his part that there
was a probable cause for the issuance of the warrant of arrest against him. Those
acts of the petitioner constitute a waiver of whatever irregularity, if any there was,
that attended his arrest.10
WHEREFORE, the decision of, the trial court dated April 20, 1967, appealed from,
is affirmed. Costs against petitioner-appellant. It is so ordered.

We wish to stress, however, that what has been stated in this opinion is certainly
not intended to sanction the return to the former practice of municipal judges of
simply relying upon affidavits or sworn statements that are made to accompany
the complaints that are filed before them, in determining whether there is a
probable cause for the issuance of a warrant of arrest. That practice is precisely
what is sought to be voided by the amendment of Section 87 (c) of Republic Act
296 (Judiciary Act of 1948) which requires that before a municipal judge issues a
warrant of arrest he should first satisfy himself that there is a probable cause by
examining the witnesses personally, and that the examination must be under oath
and reduced to writing in the form of searching questions and answers. It is
obvious that the purpose of this amendment is to prevent the issuance of a
warrant of arrest against a person based simply upon affidavits of witnesses who
made, and swore to, their statements before a person or persons other than the
judge before whom the criminal complaint is filed. We wish to emphasize strict
compliance by municipal or city judges of the provision of Section 87 (c) of the
Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid
malicious and/or unfounded criminal prosecution of persons.9

In the case now before Us, while it is true that the respondent Municipal Judge
did not himself personally cause to be reduced to writing in the form of questions
and answers the examination of witnesses presented before him by the person
who filed the criminal complaint, We are satisfied that, as shown by the evidence,
respondent Judge had personally examined the witnesses under oath and that the
questions asked by the Judge and the answers of the witnesses were reflected in

16. G.R. No. 82870. December 14, 1989.*
DR. NEMESIO E. PRUDENTE, petitioner, vs. THE HON. EXECUTIVE JUDGE
ABELARDO M. DAYRIT, RTC Manila, Branch 33 and PEOPLE OF THE PHILIPPINES,
respondents.
Constitutional Law; Criminal Procedure; Search Warrants; Requisites for a valid
search warrant.—For a valid search warrant to issue, there must be probable
cause, which is to be determined personally by the judge, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized. The probable cause must be in connection with one specific offense, and
the judge must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath, the complainant and
any witness he may produce, on facts personally known to them and attach to the
record their sworn statements together with any affidavits submitted.
Same; Same; Same; Probable cause, defined.—The “probable cause” for a valid
search warrant, has been defined “as such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense are in the
place sought to be searched.” This probable cause must be shown to be within the
personal knowledge of the complainant or the witnesses he may produce and not
based on mere hearsay.
Same; Same; Same; Same; The applicant and his witness had no personal
knowledge of the facts and circumstances which became the basis for issuing the
questioned search warrant; Reasons.—In his application for search warrant,
P/Major Alladin Dimagmaliw stated that “he has been informed” that Nemesio
Prudente “has in his control and possession” the firearms and explosives
described therein, and that he “has verified the report and found it to be a fact.”
On the other hand, in his supporting deposition, P/Lt. Florenio C. Angeles declared
that, as a result of their continuous surveillance for several days, they “gathered
informations from verified sources” that the holders of the said firearms and
explosives are not licensed to possess them. In other words, the applicant and his
witness had no personal knowledge of the facts and circumstances which became
the basis for issuing the questioned search warrant, but acquired knowledge
thereof only through information from other sources or persons.
Same; Same; Same; Same; Asking of leading questions to the deponent in an
application for search warrant and conducting of examination in a general
manner, would not satisfy the requirements of a valid search warrant.—Moreover,
a perusal of the deposition of P/Lt. Florenio Angeles shows that it was too brief
and short. Respondent Judge did not examine him “in the form of searching
questions and answers.” On the contrary, the questions asked were leading as
they called for a simple “yes” or “no” answer. As held in Quintero vs. NBI, “the
questions propounded by respondent Executive Judge to the applicant’s witness
are not sufficiently searching to establish probable cause. Asking of leading
questions to the deponent in an application for search warrant, and conducting of
examination in a general manner, would not satisfy the requirements for issuance
of a valid search warrant.”
Same; Same; Same; Same; Even if there were several rooms at the ground floor
and second floor of the PUP, the designation of the places to be searched
sufficiently complied with the constitutional requirement of particularity of the
place to be searched.—The rule is, that a description of a place to be searched is
sufficient if the officer with the warrant can, with reasonable effort, ascertain and
identify the place intended. In the case at bar, the application for search warrant
and the search warrant itself described the place to be searched as the premises
of the Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa,
Sampaloc, Manila, more particularly, the offices of the Department of Military
Science and Tactics at the ground floor, and the Office of the President, Dr.
Nemesio Prudente, at PUP, Second Floor and other rooms at the second floor. The
designation of the places to be searched sufficiently complied with the
constitutional injunction that a search warrant must particularly describe the
place to be searched, even if there were several rooms at the ground floor and
second floor of the PUP.
Same; Same; Same; Same; The failure of the search warrant to mention the
particular provision ofP.D. No. 1866 that was violated is not of such a gravity as to
call for its invalidation.—In the present case, however, the application for search
warrant was captioned: “For Violation of PD No. 1866 (Illegal Possession of
Firearms, etc.).” While the said decree punishes several offenses, the alleged
violation in this case was, qualified by the phrase “illegal possession of firearms,
etc.” As explained by respondent Judge, the term “etc.” referred to ammunitions
and explosives. In other words, the search warrant was issued for the specific
offense of illegal possession of firearms and explosives. Hence, the failure of the
search warrant to mention the particular provision of PD No. 1866 that was
violated is not of such a gravity as to call for its invalidation on this score. Besides,
while illegal possession of firearms is penalized under Section 1 of PD No. 1866
and illegal possession of explosives is penalized under Section 3 thereof, it cannot
be overlooked that said decree is a codification of the various laws on illegal
possession of firearms, ammunitions and explosives; such illegal possessions of
items destructive of life and property are related offenses or belong to the same
species, as to be subsumed within the category of illegal possession of firearms,
etc. under P.D. No. 1866.
Same; Same; Same; Same; Statutes; Sec. 3 of Supreme Court’s Circular No. 19
dated 14 August 1987 merely provides for a guideline, departure from which
would not necessarily affect the validity of a search warrant—Finally, in
connection with the petitioner’s contention that the failure of the applicant to
state, under oath, the urgent need for the issuance of the search warrant, his
application having been filed on a Saturday, rendered the questioned warrant
invalid for being violative of this Court’s Circular No. 19, dated 14 August 1987,
which reads: “3. Applications filed after office hours, during Saturdays, Sundays
and holidays shall likewise be taken cognizance of and acted upon by any judge of
the court having jurisdiction of the place to be searched, but in such cases the
applicant shall certify and state the facts under oath, to the satisfaction of the
judge, that the issuance is urgent.” It would suffice to state that the above section
of the circular merely provides for a guideline, departure from which would not
necessarily affect the validity of an otherwise valid search warrant.
PETITION for certiorari to review the order of the Regional Trial Court of Manila,
Br. 33. Dayrit, J.
The facts are stated in the opinion of the Court.
Francisco SB Acejas III, Oscar S. Atencio, Rodolfo M. Ca-pocyan, Ernesto P.
Fernandez, Romulo B. Macalintal, Rodrigo H. Melchor, Rudegelio D. Tacorda,
Virginio L. Valle and Lu-ciano D. Valencia for petitioner.
PADILLA, J.:
This is a petition for certiorari to annul and set aside the order of respondent
Judge dated 9 March 1988 which denied the petitioner’s motion to quash Search
Warrant No. 87-14, as well as his order dated 20 April 1988 denying petitioner’s
motion for reconsideration of the earlier order.
It appears that on 31 October 1987, P/Major Alladin Dimag-maliw, Chief of the
Intelligence Special Action Division (ISAD) of the Western Police District (WPD),
filed with the Regional Trial Court (RTC) of Manila, Branch 33, presided over by
respondent Judge Abelardo Dayrit, now Associate Justice of the Court of Appeals,
an application1 for the issuance of a search warrant, docketed therein as SEARCH
WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of
Firearms, etc.) entitled “People of the Philippines, Plaintiff, versus Nemesio E.
Prudente, Defendant.”
In his application for search warrant, P/Major Alladin Dimag-maliw alleged, among
others, as follows:
“1. That he has been informed and has good and sufficient reasons to believe that
NEMESIO PRUDENTE who may be found at the Polytechnic University of the
Philippines, Anonas St., Sta. Mesa, Sampaloc, Manila, has in his control or
possession firearms, explo-sives, handgrenades and ammunition which are
illegally possessed or intended to be used as the means of committing an offense
which the said NEMESIO PRUDENTE is keeping and concealing at the follow-ing
premises of the Polytechnic University of the Philippines, to wit:
a. Offices of the Department of Military Science and Tactics at the ground floor
and other rooms at the ground floor;
b. Office of the President, Dr. Nemesio Prudente at PUP, Second Floor and other
rooms at the second floor;
“2. That the undersigned has verified the report and found it to be a fact, and
therefore, believes that a Search Warrant should be issued to enable the
undersigned or any agent of the law to take possession and bring to this
Honorable Court the following described properties:
a. M 16 Armalites with ammunitions;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and handgrenades; and,
d. assorted weapons with ammunitions.”
In support of the application for issuance of search warrant, P/Lt. Florenio C.
Angeles, OIC of the Intelligence Section of ISAD, executed a “Deposition of
Witness”2 dated 31 October 1987, subscribed and sworn to before respondent
Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia, as follows:
“2.Q: Do you know P/Major Alladin Dimagmaliw, the applicant for a Search
Warrant?
A: Yes, sir, he is the Chief, Intelligence and Special Action Division, Western Police
District.
“3. Q: Do you know the premises of Polytechnic University of the Philippines at
Anonas St., Sta. Mesa, Sampaloc, Manila?
A:Yes, sir, the said place has been the subject of our surveillance and observation
during the past few days.
“4. Q:Do you have personal knowledge that in the said premises is kept the
following properties subject of the offense of violation of PD No. 1866 or intended
to be used as a means of committing an offense:
a. M 16 Armalites with ammunitions;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and handgrenades; and
d. Assorted weapons with ammunitions?
A:Yes sir.
“5.Q: Do you know who is or who are the person or persons who has or have
control of the above-described premises?
A: sir, it is Dr. Nemesio Prudente, President of the Polytechnic University of the
Philippines.
“6.Q: How do you know that said property is subject of the offense of violation of
Pres. Decree No. 1866 or intended to be used as the means of committing an
offense?
A: Sir, as a result of our continuous surveillance conducted for several days, we
gathered information from verified sources that the holder of said firearms and
explosives as well as ammunitions aren’t licensed to possess said firearms and
ammunition. Further, the premises is a school and the holders of these firearms
are not students who were not supposed to possess firearms, explosives and
ammunition.”
On the same day, 31 October 1987, respondent Judge issued Search Warrant No.
87-14,3 the pertinent portions of which read as follows:
“It appearing to the satisfaction of the undersigned, after examining under oath
applicant ALLADIN M. DIMAGMALIW and his witness FLORENIO C. ANGELES that
there are good and sufficient reasons to believe (probable cause) that NEMESIO
PRUDENTE has in his control in the premises of Polytechnic University of the
Philippines, Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are subject
of the above offense or intended to be used as the means of committing the said
offense.
“You are hereby commanded to make an immediate search at any time in the day
or night of the premises of Polytechnic University of the Philippines, more
particularly (a) offices of the Department of Military Science and Tactics at the
ground floor and other rooms at the ground floor; (b) office of the President, Dr.
Nemesio Prudente at PUP, Second Floor and other rooms at the second floor, and
forthwith seize and take possession of the following personal properties, to wit:
a. M 16 Armalites with ammunition;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and hand grenades; and
d. assorted weapons with ammunitions.
and bring the above described properties to the undersigned to be dealt with as
the law directs.”
search warrant was enforced by some 200 WPD operatives led by P/Col. Edgar
Dula Torre, Deputy Superintendent, WPD, and P/Major Romeo Maganto, Precinct
8 Commander.
In his affidavit,4 dated 2 November 1987, Ricardo Abando y Yusay, a member of
the searching team, alleged that he found in the drawer of a cabinet inside the
wash room of Dr. Prudente’s office a bulging brown envelope with three (3) live
fragmentation hand grenades separately wrapped with old newspapers, classified
by P/Sgt. J.L. Cruz as follows: (a) one (1) pc.—M33 Fragmentation hand grenade
(live); (b) one (1) pc.—M26 Fragmentation hand grenade (live); and (c) one (1) pc.
—PRB-423 Fragmentation hand grenade (live).
On 6 November 1987, petitioner moved to quash the search warrant. He claimed
that (1) the complainant’s lone witness, Lt. Florenio C. Angeles, had no personal
knowledge of the facts which formed the basis for the issuance of the search
warrant; (2) the examination of the said witness was not in the form of searching
questions and answers; (3) the search warrant was a general warrant, for the
reason that it did not particularly describe the place to be searched and that it
failed to charge one specific offense; and (4) the search warrant was issued in
violation of Circular No. 19 of the Supreme Court in that the complainant failed to
allege under oath that the issuance of the search warrant on a Saturday was
urgent.5
The applicant, P/Major Alladin Dimagmaliw, thru the Chief, Inspectorate and Legal
Affairs Division, WPD, opposed the motion.6 After petitioner had filed his reply7
to the opposition, he filed a supplemental motion to quash.8
Thereafter, on 9 March 1988, respondent Judge issued an order,9 denying the
petitioner’s motion and supplemental motion to quash. Petitioner’s motion for
reconsideration10 was likewise denied in the order11 dated 20 April 1988.
Hence, the present recourse, petitioner alleging that respondent Judge has
decided a question of substance in a manner not in accord with law or applicable
decisions of the Supreme Court, or that the respondent Judge gravely abused his
discretion tantamount to excess of jurisdiction, in issuing the disputed orders.
For a valid search warrant to issue, there must be probable cause, which is to be
determined personally by the judge, after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.12 The probable
cause must be in connection with one specific offense,13 and the judge must,
before issuing the warrant, personally examine in the form of searching questions
and answers, in writing and under oath, the complainant and any witness he may
produce, on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted.14
The “probable cause” for a valid search warrant, has been defined “as such facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that objects sought in
connection with the offense are in the place sought to be searched.”15 This
probable cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere hearsay.16
Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it
was issued on the basis of facts and circumstances which were not within the
personal knowledge of the applicant and his witness but based on hearsay
evidence.
In his application for search warrant, P/Major Alladin Dimagmaliw stated that “he
has been informed” that Nemesio Prudente “has in his control and possession”
the firearms and explosives described therein, and that he “has verified the report
and found it to be a fact.” On the other hand, in his supporting deposition, P/Lt.
Florenio C. Angeles declared that, as a result of their continuous surveillance for
several days, they “gathered informations from verified sources” that the holders
of the said firearms and explosives are not licensed to possess them. In other
words, the applicant and his witness had no personal knowledge of the facts and
circumstances which became the basis for issuing the questioned search warrant,
but acquired knowledge thereof only through information from other sources or
persons.
While it is true that in his application for search warrant, applicant P/Major
Dimagmaliw stated that he verified the information he had earlier received that
petitioner had in his possession and custody the firearms and explosives
described in the application, and that he found it to be a fact, yet there is nothing
in the record to show or indicate how and when said applicant verified the earlier
information acquired by him as to justify his conclusion that he found such
information to be a fact. He might have clarified this point if there had been
searching questions and answers, but there were none. In fact, the records yield
no questions and answers, whether searching or not, vis-a-vis the said applicant.
What the records show is the deposition of witness, P/Lt. Angeles, as the only
support to P/Major Dimagmaliw’s application, and the said deposition is based on
hearsay. For, it avers that they (presumably, the police authorities) had conducted
continuous surveillance for several days of the suspected premises and, as a result
thereof, they “gathered information from verified sources” that the holders of the
subject firearms and explosives are not licensed to possess them.
In Alvarez vs. Court of First Instance,17 this Court laid the following test in
determining whether the allegations in an application for search warrant or in a
supporting deposition, are based on personal knowledge or not—
“The true test of sufficiency of a deposition or affidavit to warrant issuance of a
search warrant is whether it has been drawn in a manner that perjury could be
charged thereon and the affiant be held liable for damage caused. The oath
required must refer to the truth of the facts within the personal knowledge of the
applicant for search warrant, and/or his witnesses, not of the facts merely
reported by a person whom one considers to be reliable.”
Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his
deposition, do not come up to the level of facts of his personal knowledge so
much so that he cannot be held liable for perjury for such allegations in causing
the issuance of the questioned search warrant.
In the same Alvarez case,18 the applicant stated that his purpose for applying for
a search warrant was that: “It had been reported to me by a person whom I
consider to be reliable that there are being kept in said premises books,
documents, receipts, lists, chits and other papers used by him in connection with
his activities as a money lender, charging usurious rate of interests, in violation of
law.” The Court held that this was insufficient for the purpose of issuing a search
warrant.
In People vs. Sy Juco,19 where the affidavit contained an allegation that there had
been a report to the affiant by a person whom he considered reliable that in said
premises were “fraudulent books, correspondence and records,” this was likewise
held as not sufficient for the purpose of issuing a search warrant.
Evidently, the allegations contained in the application of P/ Major Alladin
Dimagmaliw and the declaration of P/Lt. Florenio C. Angeles in his deposition
were insufficient basis for the issuance of a valid search warrant. As held in the
Alvarez case:
“The oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof is to
convince the committing magistrate, not the individual making the affidavit and
seeking the issuance of the warrant, of the existence of probable cause.”
Besides, respondent Judge did not take the deposition of the applicant as required
by the Rules of Court. As held in Roan v. Gonzales,20 “(m)ere affidavits of the
complainant and his witnesses are thus not sufficient. The examining Judge has to
take depositions in writing of the complainant and the witnesses he may produce
and attach them to the record.”
Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was
too brief and short. Respondent Judge did not examine him “in the form of
searching questions and answers.” On the contrary, the questions asked were
leading as they called for a simple “yes” or “no” answer. As held in Quintero vs.
NBI,21 “the questions propounded by respondent Executive Judge to the
applicant’s witness are not sufficiently searching to establish probable cause.
Asking of leading questions to the deponent in an application for search warrant,
and conducting of examination in a general manner, would not satisfy the
requirements for issuance of a valid search warrant.”
Manifestly, in the case at bar, the evidence failed to show the existence of
probable cause to justify the issuance of the search warrant. The Court also notes
post facto that the search in question yielded, no armalites, handguns, pistols,
assorted weapons or ammunitions as stated in the application for search warrant,
the supporting deposition, and the search warrant itself. Only three (3) live
fragmentation hand grenades were found in the searched premises of the PUP,
according to the affidavit of an alleged member of the searching party.
The Court avails of this decision to reiterate the strict requirements for
determination of “probable cause” in the valid issuance of a search warrant, as
enunciated in earlier cases. True, these requirements are stringent but the
purpose is to assure that the constitutional right of the individual against
unreasonable search and seizure shall remain both meaningful and effective.
Petitioner also assails the validity of the search warrant on the ground that it
failed to particularly describe the pjace to be searched, contending that there
were several rooms at the ground floor and the second floor of the PUP.
The rule is, that a description of a place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended.22 In the case at bar, the application for search warrant and the search
warrant itself described the place to be searched as the premises of the
Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa,
Sampaloc, Manila, more particularly, the offices of the Department of Military
Science and Tactics at the ground floor, and the Office of the President, Dr.
Nemesio Prudente, at PUP, Second Floor and other rooms at the second floor. The
designation of the places to be searched sufficiently complied with the
constitutional injunction that a search warrant must particularly describe the
place to be searched, even if there were several rooms at the ground floor and
second floor of the PUP.
Petitioner next attacks the validity of the questioned warrant, on the ground that
it was issued in violation of the rule that a search warrant can be issued only in
connection with one specific offense. The search warrant issued by respondent
judge, according to petitioner, was issued without any reference to any particular
provision of PD No. 1866 that was violated—when allegedly P.D. No. 1866
punishes several offenses.
In Stonehill vs. Diokno,23 where the warrants involved were issued upon
applications stating that the natural and juridical persons therein named had
committed a “violation of Central Bank Laws, Tariff and Customs Laws, Internal
Revenue Code and Revised Penal Code,” the Court held that no specific offense
had been alleged in the applications for a search warrant, and that it would be a
legal hearsay of the highest order to convict anybody of a “violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal
Code” without reference to any determinate provision of said laws and codes.
In the present case, however, the application for search warrant was captioned:
“For Violation of PD No. 1866 (Illegal Possession of Firearms, etc.).” While the said
decree punishes several offenses, the alleged violation in this case was, qualified
by the phrase “illegal possession of firearms, etc.” As explained by respondent
Judge, the term “etc.” referred to ammunitions and explosives. In other words, the
search warrant was issued for the specific offense of illegal possession of firearms
and explosives. Hence, the failure of the search warrant to mention the particular
provision of PD No. 1866 that was violated is not of such a gravity as to call for its
invalidation on this score.
Besides, while illegal possession of firearms is penalized under Section 1 of PD No.
1866 and illegal possession of explosives is penalized under Section 3 thereof, it
cannot be overlooked that said decree is a codification of the various laws on
illegal possession of firearms, ammunitions and explosives; such illegal possession
of items destructive of life and property are related offenses or belong to the
same species, as to be subsumed within the category of illegal possession of
firearms, etc. under P.D. No. 1866. As observed by respondent Judge:24
‘The grammatical syntax of the phraseology comparative with the title of PD 1866
can only mean that illegal possession of firearms, ammunitions and explosives,
have been codified under Section 1 of said Presidential Decree so much so that
the second and third are forthrightly species of illegal possession of firearms
under Section (1) thereof. It has long been a practice in the investigative and
prosecution arm of the government, to designate the crime of illegal possession
of firearms, ammunitions and explosives as ‘illegal possession of firearms, etc.’
The Constitution as well as the Rules of Criminal Procedure does not recognize the
issuance of one search warrant for illegal possession of firearms, one warrant for
illegal possession of ammunitions, and another for illegal possession of explosives.
Neither is the filing of three different informations for each of the above offenses
sanctioned by the Rules of Court. The usual practice adopted by the courts is to
file a single information for illegal possession of firearms and ammunitions. This
practice is considered to be in accordance with Section 13, Rule 110 of the 1985
Rules on Criminal Procedure which provides that: ‘A complaint or information
must charge but one offense, except only in those cases in which existing laws
prescribe a single punishment for various offenses. Describably, the servers did
not search for articles other than firearms, ammunitions and explosives. The
issuance of Search Warrant No. 87-14 is deemed profoundly consistent with said
rule and is therefore valid and enforceable.” (italics supplied)
Finally, in connection with the petitioner’s contention that the failure of the
applicant to state, under oath, the urgent need for the issuance of the search
warrant, his application having been filed on a Saturday, rendered the questioned
warrant invalid for being violative of this Court’s Circular No. 19, dated 14 August
1987, which reads:
“3. Applications filed after office hours, during Saturdays, Sundays and holidays
shall likewise be taken cognizance of and acted upon by any judge of the court
having jurisdiction of the place to be searched, but in such cases the applicant
shall certify and state the facts under oath, to the satisfaction of the judge, that
the issuance is urgent.”
it would suffice to state that the above section of the circular merely provides for
a guideline, departure from which would not necessarily affect the validity of an
otherwise valid search warrant.
WHEREFORE, all the foregoing considered, the petition is GRANTED. The
questioned orders dated 9 March 1988 and 20 April 1988 as well as Search
Warrant No. 87-14 are hereby ANNULLED and SET ASIDE.
The three (3) live fragmentation hand granades which, according to Ricardo Y.
Abando, a member of the searching team, were seized in the washroom of
petitioner’s office at the PUP, are ordered delivered to the Chief, Philippine
Constabulary for proper disposition.
SO ORDERED.
 17. No. L-50720. March 26, 1984.*

SORIANO MATA, petitioner, vs. HON. JOSEPHINE K. BAYONA, in her capacity as

Presiding Judge of the City Court of Ormoc, BERNARDO GOLES and REYNALDO
MAYOTE, respondents.

Remedial Law; Criminal Procedure; Search Warrant; Illegality of issuance of search

warrant for judge’s failure to conform with essential requisites for taking
depositions of complainant and his witnesses to determine existence or non-
existence of probable cause, and to attach the depositions in the record.—Mere
affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to properly determine
the existence or non-existence of the probable cause, and to hold liable for
perjury the person giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure
of the Judge to conform with the essential requisites of taking the depositions in
writing and attaching them to the record, rendering the search warrant invalid.

Same; Same; Same; Term “depositions”, meaning and nature of; Searching
questions to applicants for search warrant, nature of.—The term “depositions” is
sometimes used in a broad sense to describe any written statement verified by
oath; but in its more technical and appropriate sense the meaning of the word is
limited to written testimony of a witness given in the course of a judicial
proceeding in advance of the trial or hearing upon oral examination. A deposition
is the testimony of a witness, put or taken in writing, under oath or affirmation
before a commissioner, examiner or other judicial officer, in answer to
interlocutory and cross interlocutory, and usually subscribed by the witnesses.
The searching questions propounded to the applicants of the search warrant and
his witnesses must depend to a large extent upon the discretion of the Judge just
as long as the answers establish a reasonable ground to believe the commission of
a specific offense and that the applicant is one authorized by law, and said
answers particularly describe with certainty the place to be searched and the
persons or things to be seized. The examination or investigation which must be
under oath may not be in public. It may even be held in the secrecy of his
chambers. Far more important is that the examination or investigation is not
merely routinary but one that is thorough and elicit the required information. To
repeat, it must be under oath and must be in writing.
Same; Same; Same; Strict compliance by judge with the requirements of the
Constitution and the statutory provisions in issuance of search warrant enjoined;
Liberal construction in favor of individual; Presumption of regularity, not invocable
by officer who undertakes to justify issuance of search warrant.—Thus, in issuing a
search warrant the Judge must strictly comply with the requirements of the
Constitution and the statutory provisions. A liberal construction should be given in
favor of the individual to prevent stealthy encroachment upon, or gradual
depreciation of the rights secured by the Constitution. No presumption of
regularity are to be invoked in aid of the process when an officer undertakes to
justify it.
Same; Same; Same; Illegality of search warrant does not call for return of things
seized which are prohibited.—While We hold that the search warrant is illegal, the
return of the things seized cannot be ordered. In Castro vs. Pabalan, it was held
that the illegality of the search warrant does not call for the return of the things
seized, the possession of which is prohibited.
PETITION for certiorari to review the order of the City Court of Ormoc. Bayona, J.
The facts are stated in the opinion of the Court.
Valeriano R. Ocubillo for petitioner.
The Solicitor General for respondents.
DE CASTRO, J.:
The validity of the search warrant issued by respondent Judge (not reappointed) is
challenged by petitioner for its alleged failure to comply with the requisites of the
Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by respondent Judge
was based merely on the application for search warrant and a joint affidavit of
private respondents which were wrongfully it is alleged subscribed, and sworn to
before the Clerk of Court of respondent Judge. Furthermore, there was allegedly a
failure on the part of respondent Judge to attach the necessary papers pertinent
to the issuance of the search warrant to the records of Criminal Case No. 4298-CC
wherein petitioner is accused under PD 810, as amended by PD 1306, the
information against him alleging that Soriano Mata offered, took and arranged
bets on the Jai Alai game by “selling illegal tickets known as ‘Masiao tickets’
without any authority from the Philippine Jai Alai & Amusement Corporation or
from the government authorities concerned.”1
Petitioner claims that during the hearing of the case, he discovered that nowhere
from the records of the said case could be found the search warrant and other
pertinent papers connected to the issuance of the same, so that he had to inquire
from the City Fiscal its whereabouts, and to which inquiry respondent Judge
replied, “it is with the court”. The Judge then handed the records to the Fiscal who
attached them to the records.
This led petitioner to file a motion to quash and annul the search warrant and for
the return of the articles seized, citing and invoking, among others, Section 4 of
Rule 126 of the Revised Rules of Court. The motion was denied by respondent
Judge on March 1, 1979, stating that the court has made a thorough investigation
and examination under oath of Bernardo U. Goles and Reynaldo T. Mayote,
members of the Intelligence Section of 352nd PC Co./Police District II INP; that in
fact the court made a certification to that effect; and that the fact that documents
relating to the search warrant were not attached immediately to the record of the
criminal case is of no moment, considering that the rule does not specify when
these documents are to be attached to the records.2 Petitioner’s motion for
reconsideration of the aforesaid order having been denied, he came to this Court,
with the instant petition, praying, among others, that this Court declare the
search warrant to be invalid and all the articles confiscated under such warrant as
inadmissible as evidence in the case, or in any proceedings on the matter.
We hold that the search warrant is tainted with illegality for being violative of the
Constitution and the Rules of Court.
Under the Constitution “no search warrant shall issue but upon probable cause to
be determined by the Judge or such other responsible officer as may be
authorized by law after examination under oath or affirmation of the complainant
and the witnesses he may produce”. More emphatic and detailed is the
implementing rule of the constitutional injunction, Section 4 of Rule 126 which
provides that the judge must before issuing the warrant personally examine on
oath or affirmation the complainant and any witnesses he may produce and take
their depositions in writing, and attach them to the record, in addition to any
affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to properly determine
the existence or non-existence of the probable cause, to hold liable for perjury the
person giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure
of the Judge to conform with the essential requisites of taking the depositions in
writing and attaching them to the record, rendering the search warrant invalid.
The judge’s insistence that she examined the complainants under oath has
become dubious by petitioner’s claim that at the particular time when he
examined all the relevant papers connected with the issuance of the questioned
search warrant, after he demanded the same from the lower court since they
were not attached to the records, he did not find any certification at the back of
the joint affidavit of the complainants. As stated earlier, before he filed his motion
to quash the search warrant and for the return of the articles seized, he was
furnished, upon his request, certified true copies of the said affidavits by the Clerk
of Court but which certified true copies do not bear any certification at the back.
Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at
the outset of this case does not show also the certification of respondent judge.
This doubt becomes more confirmed by respondent Judge’s own admission, while
insisting that she did examine thoroughly the applicants, that “she did not take
the deposition of Mayote and Goles because to have done so would be to hold a
judicial proceeding which will be open and public”,3 such that, according to her,
the persons subject of the intended raid will just disappear and move his illegal
operations somewhere else.
Could it be that the certification was made belatedly to cure the defect of the
warrant? Be that as it may, there was no “deposition in writing” attached to the
records of the case in palpable disregard of the statutory prohibition heretofore
quoted.
Respondent Judge impresses this Court that the urgency to stop the illegal
gambling that lures every man, woman and child, and even the lowliest laborer
who could hardly make both ends meet justifies her action. She claims that in
order to abate the proliferation of this illegal “masiao” lottery, she thought it more
prudent not to conduct the taking of deposition which is done usually and publicly
in the court room.
Two points must be made clear. The term “depositions” is sometimes used in a
broad sense to describe any written statement verified by oath; but in its more
technical and appropriate sense the meaning of the word is limited to written
testimony of a witness given in the course of a judicial proceeding in advance of
the trial or hearing upon oral examination.4 A deposition is the testimony of a
witness, put or taken in writing, under oath or affirmation before a commissioner,
examiner or other judicial officer, in answer to interlocutory and cross
interlocutory, and usually subscribed by the witnesses.5 The searching questions
propounded to the applicants of the search warrant and his witnesses must
depend to a large extent upon the discretion of the Judge just as long as the
answers establish a reasonable ground to believe the commission of a specific
offense and that the applicant is one authorized by law, and said answers
particularly describe with certainty the place to be searched and the persons or
things to be seized. The examination or investigation which must be under oath
may not be in public. It may even be held in the secrecy of his chambers. Far more
important is that the examination or investigation is not merely routinary but one
that is thorough and elicit the required information. To repeat, it must be under
oath and must be in writing.
The other point is that nothing can justify the issuance of the search warrant but
the fulfillment of the legal requisites. It might be well to point out what has been
said in Asian Surety & Insurance Co., Inc. vs. Herrera:

“It has been said that of all the rights of a citizen, few are of greater importance or
more essential to his peace and happiness than the right of personal security, and
that involves the exemption of his private affairs, books, and papers from
inspection and scrutiny of others. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights of the citizens, for the enforcement
of no statute is of sufficient importance to justify indifference to the basic
principles of government.”6

Thus, in issuing a search warrant the Judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal
construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the
Constitution.7 No presumption of regularity are to be invoked in aid of the
process when an officer undertakes to justify it.8

While We hold that the search warrant is illegal, the return of the things seized
cannot be ordered. In Castro vs. Pabalan,9 it was held that the illegality of the
search warrant does not call for the return of the things seized, the possession of
which is prohibited.

WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979
denying the motion to annul the search warrant as well as the order of March 21,
1979 denying the motion for reconsideration are hereby reversed, the search
warrant, being declared herein as illegal. Notwithstanding such illegality, the
things seized under such warrant, such as stock of “masiao” tickets; “masiao”
issue tickets; bet money; control pad or “masiao” numbers; stamping pad with
rubber stamp marked Ormoc City Jai-Alai,” cannot be returned as sought by
petitioner. No costs.

SO ORDERED.