Crim2 Cases.docx

CRIM2 CASES MIDTERM G.R. No. L-2128

confinement of a person charged with having committed a public offense, that is, "the Supreme Court and such inferior courts as may be established by law". (Section 1, Article VIII of the Constitution.) May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners, vs. THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF MANILA,respondents. Enrique Q. Jabile for petitioners. Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa and D. Guinto Lazaro for respondents.

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code formerly in force of these Islands, which penalized a public officer other than a judicial officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to the judicial authority within twenty four hours after his arrest." There was no doubt that a judicial authority therein referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the temporary commitment or detention of the person arrested; and not the city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which complements said section 202, of the same Code provided that "the penalty of suspension in its minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer who, within the period prescribed by the provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest or to commit such prisoner formally by written order containing a statement of the grounds upon which the same is based."

FERIA, J.: Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948, when the petition for habeas corpus filed with this Court was heard, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them an information with the proper courts justice. This case has not been decided before this time because there was not a sufficient number of Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting in division here in Baguio for deliberation and decision. We have not until now an official information as to the action taken by the office of the city fiscal on the complaint filed by the Dumlao against the petitioners. But whatever night have been the action taken by said office, if there was any, we have to decide this case in order to lay down a ruling on the question involved herein for the information and guidance in the future of the officers concerned. The principal question to be determined in the present case in order to decide whether or not the petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of manila a judicial authority within the meaning of the provisions of article 125 of the Revised Penal Code? Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours." Taking into consideration the history of the provisions of the above quoted article, the precept of our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article, mean the courts of justices or judges of said courts vested with judicial power to order the temporary detention or

Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the Revised Penal Code the import of said words judicial authority or officer can not be construed as having been modified by the mere omission of said provision in the Revised Penal Code. Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or confinement] shall issue but upon probable cause, to be determined by the judge after the examination under oath or affirmation of the complaint and the witness he may produce." Under this constitutional precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the complainant and his witness. And the judicial authority to whom the person arrested by a public officers must be surrendered can not be any other but court or judge who alone is authorized to issue a warrant of commitment or provisional detention of the person arrested pending the trial of the case against the latter. Without such warrant of commitment, the detention of the person arrested for than six hours would be illegal and in violation of our Constitution. Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the duty of an officer after arrest without warrant, provides that "a person making arrest for legal ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal Code, take the person arrested to the proper court or judge for such action for they may deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the Court, he shall be informed of the complaint or information filed against him. He shall also informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him. And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court. According to the provision of said section, "a writ of habeas corpus shall extend any person to all cases of illegal confinement or detention by which any person is illegally deprived of his liberty"; and "if it appears

that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a judgement or order of a court of record, and that the court or judge had jurisdiction to issue the process, render judgment, or make the order, the writ shall not be allowed. "Which a contrario sensu means that, otherwise, the writ shall be allowed and the person detained shall be released. The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of arrest or of commitment or temporary confinement of a person surrendered to legalize the detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city of fiscal of Manila makes is not the preliminary investigation proper provided for in section 11, Rule 108, above quoted, to which all person charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since defendant charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary investigation. The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2, Rule 108, is the investigation referred to in the proceeding paragraph. Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with municipal court or the Court of First Instance of Manila, because as above stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused. When a person is arrested without warrant in cases permitted bylaw, the officer or person making the arrest should, as abovestated, without unnecessary delay take or surrender the person arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of section 13, Rule 108. In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the officer or person making the arrest without warrant shall surrender or take the person arrested

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

Separate Opinions

(c) Even in the false hypothesis that respondents, by filing the complaint, intended to make a delivery of the persons of petitioners, if not actually, constructively, the fiscal's office is not a judicial authority.

PERFECTO, J.:, concurring: Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the morning of April 2, 1948, upon complaint of Bernardino Malinao, for the crime of alleged robbery. The fact is alleged expressly in respondent's answer supported by the affidavit of Benjamin Dumlao (Exhibit 1), the patrolman who made the arrest. Therein it is also alleged that petitioners were "finally" placed under arrest at 4:30 p.m. and 5:00 p.m. respectively, on the same day, April 2, l948. The distinction between the two arrests, the apprehension made at 11:00 a.m. and the "final arrest at 4:30 and 5:00 p.m., is purely academic or imaginary. There was but one arrest, effected at 11:00 a.m., April 2, 1948, and continued without interruption until the petition had been filed with us April 5, 1948, at the hearing on the next day. Until the moment we are writing this opinion we have not heard that petitioners have been released at any time. Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal complaint was filed with the fiscal's office of Manila, and that by said filing their duty to deliver arrested persons, within six hours from their arrest, to a proper judicial authority has been duly complied with. There is no dispute that no warrant of arrest has ever been issued for the apprehension of petitioners. Petitioners pray for their immediate release, alleging that, as the six-hour period provided in article 125 of the Revised Penal Code had expired, their continued detention is illegal. Article 125 of the Revised Penal Code provides for the penalty of arresto mayor or in its maximum period to reclusion temporal, or from 4 months and 11 days to 20 years imprisonment, for the crime of a public officer or employee who, after detaining a person, "shall fail to deliver such person to the proper judicial authorities within the period of six hours." Both parties implying from the above provision that after six hours of said failure, petitioners shall be entitled to be released, discussed the question whether there is such failure or not. Upon the very facts alleged by respondents and supported by documentary evidence accompanying it, there should not be any dispute that there is such failure. (a) Respondents have not delivered the persons of petitioners to any authority, and much less to any judicial authority. (b) Their filing of a complaint with the office of the fiscal of Manila is not a delivery of the persons of petitioners. Said persons are not a complaint. A complaint, whether oral or written, can never be elevated to the category of the person. No one is crazy enough to confuse or identify a person with a complaint.

(d) Under our Constitution and laws, judicial authorities comprehend only courts of justice, such as the Supreme Court and all other inferior Court, and justices and judges. The authority possessed and exercised by judicial authorities is judicial, and the Constitution(section 1, Article VIII) vests the judicial power exclusively "in one Supreme Court and in such inferior courts as may be established by law." Respondents' pretension in making the fiscal of Manila a judicial authority is absolutely groundless, upon the clear letter of the fundamental law. Counsel for respondents himself had to admit that said officer belongs to the administrative or executive department. Under the tripartite system of the government established by the Constitution, it is extreme absurdity to make an administrative or executive officer, or any officer of the executive department or branch, a judicial authority. Such will make of separation of powers a madman's illusion. That a fiscal is not a judicial authority has been unmistakably declared in the decision in Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214. The statement made therein that there was yet no purpose of deciding whether a fiscal is a judicial authority or not, is just a rhetorical figure that is a judicial authority or not, is just a rhetorical figure that should not deceive any one. All those who can read, will that the decision has made the declaration. It is there stated in plain language that the fiscal is "unlike" a judicial authority. "Unlike" means, as an elementary school student knows, not like, dissimilar, diverse, different. No warrant of arrest having been issued by any competent tribunal for the apprehension of petitioners, said apprehension appears to be illegal. At any rate, even under the hypothesis that it was legal and continued to be so for six hours, this time having expired seven days ago, the continued detention and confinement of petitioners is clearly illegal, and not only illegal but criminal, involving an offense committed by public officers and heavily punished by the Revised Penal Code. Regarding the question as to legality of the arrest, counsel for respondents has advanced the shocking theory that police officers may arrest any person just for questioning or investigation, without any warrant of arrest. The theory is absolutely unconstitutional and could have been entertained only under the "Kempei" system implanted by the brutal Japanese army occupation. Such theory represents an ideology incompatible with human dignity. Reason revolts against it. Respondents are ordered, upon notice of the decision, to immediately release the two petitioners and to report to this Court the time when the release shall have been effected.

TUASON, J., dissenting: I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off. Gaz., 1214. RESOLUTION August 27, 1948 FERIA, J.: This is a motion for reconsideration of our decision which holds that the phrase "judicial authority" used in the article 125 of the Revised Penal Code, to whom a person arrested without warrant shall be delivered by the officer making the arrest within the period of six hours from the arrest, means a competent court or judge, and the City Fiscal is not such a judicial authority. We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-479, that the provisions of the Provisional Law for the application of the provisions of the Spanish Penal Code in the Philippines by Royal Decree of September 4, 1884, are in force of this Islands insofar as they have not been repealed or amended by implication by the enactment of the body of laws put in force in these Islands since the change from Spanish to American sovereignty. According to the ruling of this court in said case, a person may be arrested without warrant in the cases specified in Rules 27 and 28 of said provisional law and section 37 of Act No. 183 (Charter of Manila). The provisions of said Rules 27 and 28 are substantially the same of those contained in section 6 Rule 109 of the Rules of Court which superseded them; and the provisions of section 37 of Act No. 183 above reffered to have been incorporated in section 2463 of the Revised Administrative Code. Both section 6 of Rule 109, and the pertinent provisions of said section 2463 of the Revised Administrative Code are now the laws in force on the subject. Article 30 of said Provisional Law for the application of the Penal Law in the Philippines also provides: The executive authorities or the agents detaining a person shall release the same or else turn him over to the judicial authorities within twenty four hours after the arrest if made in the head town of the district, or within as brief a period as the distance and transportation facilities permit. And the next article 31 of the same law reads as follows: Within twenty four hours after the person arrested has been surrendered to the competent judge of Court of First Instance, the latter shall order the commitment or release of the prisoner by warrant containing the grounds on which it is based (auto motivado). If it is impossible to do so because of the complexity of the facts, the number of defendants or any other serious cause, which must be made of record, the time of detention may be extended to three days. Upon the expiration of that period of time the judge shall order the commitment or the release of the defendant. The warrant of commitment shall be ratified after the defendant has been heard within the period of sixty two hours from the time the defendant has been committed to prison.

Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any person making arrest for legal ground shall, without unnecessary delay and within the time prescribed in the Revised Peal Code, take the person arrested to the proper court or judge for such action as they may deem proper to take," and by article 125 of the Revised Penal Code already quoted. But the provisions of Rule 31 above quoted are still in force because they may have not been repealed, either expressly or by implication, by any law or the present Rules of Court, except the last sentence, thereof which is no longer in force. The procedure of hearing the accused after he has been committed to prison referred to in said last sentence, is a sort preliminary investigation by the judge or justice of the peace according to the present procedure. Persons arrested or accused in the City of Manila are not entitled to such investigation. In provinces the justice of the peace or judge shall, according to section 2 of Act No. 194, "make the preliminary investigation of the charge as speedily as may be consistent with the right and justice, but in any event he must make the investigation within three days of the time the accused was brought before him, unless the accused or complainant shall ask for delay in order that witnesses may be obtained, or for other good and sufficient reason, in which event a continuance for a reasonable time may be allowed." This provision of section 2 of Act No. 194 is still in force, because no law has been enacted amending or repealing it. (Marcos vs. Cruz [May 13, 1939] 1st Supp., 40 Off. Gaz., 174, 182.) The Rules of Court on Criminal Procedure do not undertake to dispose of all subjects of preliminary investigation, and repeal all laws on the subject not incorporated therein; especially those that, like the said provisions of section 2, Act No. 194, confer substantive rights upon defendants which can not be diminished, increased or modified by the Rules of Court (section 13, Article VIII, of the Constitution). In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article 204 of the old Penal Code, from which article 125 of the Revised Penal Code was taken, and section 1 (3) Article III of the Constitution, there can be no doubt that the judicial authority within the meaning of article 125 of the Revised Penal Code must be a judge who has authority to issue a written warrant of commitment or release containing the ground on which it is based (auto motivado). Because said section 17 of Rule 109 expressly provides that the officer making the arrest without warrant shall, within the time prescribed in the Revised Penal Code, take the person arrested to a court or judge for such action as the latter may deem proper to take; Rule 31 expressly states that, within twenty four hours or at most three days after the person arrested has been delivered to the judge of Court of First Instance (and alsothe justice of the peace now), the latter shall order the commitment or release of the prisoner by a warrant containing the ground upon which the commitment or release is based (auto motivado); article 204 of the Penal Code (not incorporated in the Revised Penal Code), penalize the judicial authority or judge who fails to comply with the provisions of said Rule 31; and section 1(3) Article III of the Constitution provides that no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affidavit of the complainant and witnesses he may produce," in order to safeguard "the right of the people to be secured in their person ... against unreasonable seizure" or detention for a longer period than that fixed or considered by law as reasonable (six hours according to section 125 of the Revised Penal Code). It is obvious that the city fiscal is not a city judge, and has no power to issue order or commitment or release by a written warrant containing the ground on which it is based. As a matter of fact the city fiscal has never exercised such power since that office was created. In justice to the city fiscal, we have to state that the latter did not and does not contend in his motion for reconsideration that it has the power to issue such a warrant, as contended in the dissenting opinion.

To consider a city fiscal as a judicial authority within the meaning of article 125 of the Revised Penal Code, would be to place a person arrested in provinces without warrant in a better position than those arrested in the City of Manila. Because, as there is no law requiring the city fiscal to act or file an information against such person within a limited period of time, after the arresting officer has taken the prisoner to the city fiscal within six hours, the prisoner may be held under detention without any warrant for days and weeks and possibly months until such time as the city fiscal may take action, either by releasing the prisoner without filing any information, or filing an information with the proper city court and obtain a warrant of commitment. While a person arrested outside of the City of Manila has to be delivered by the arresting person or peace officer to the competent judge within six hours after his arrest, and the latter shall have to investigate the charge and issue a warrant of release or commitment of the prisoner within the period of twenty four hours or at most three days prescribed in said article 31 of the Provisional Law. It is obvious that the surrender or delivery to the judicial authority of a person arrested without warrant by a peace officer, does not consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner, because the arresting officer can not transfer to the judge and the latter does not assume the physical custody of the person arrested. And in the City of Manila it does consist in delivering physically the body of the prisoner to the city fiscal, for the latter will not assume the responsibility of being the custodian of the prisoner; nor in making or lodging a complaint against him with the said fiscal, because the latter has no power to order the commitment or release of the prisoner by a warrant containing the ground on which it is based (auto motivado). Such delivery is a legal one and consists in making a charge or filing a complaint against the prisoner with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing by the city fiscal of an information with the corresponding city courts after an investigation if the evidence against said person so warrants. Upon the filing of such information will the prisoner be deemed deliver to a judicial authority in the City of Manila within the meaning of article 125 of the Revised Penal Code? The city court or judge need not make an investigation of the facts alleged in the information, which the judge or justices of the peace in provinces have to make before issuing the proper warrant, because the law vest the power in the city fiscal, but said city judge shall determine only the legal question whether said facts constitute an offense or violation of ordinances, and issue a warrant of commitment if they do, or of release if they do not. As a peace officer can not deliver directly the person arrested to the city courts, he shall deliver him to said court through the city fiscal, and if the latter does not take the prisoner in time to the latter so that the proper investigation may be made and information filed within six hours, he has to release the prisoner in order to avoid criminal liabilty for violation of article 125 of the Revised Penal Code. The city fiscal is not an agent of the arresting officer, but as prosecuting officer, he will be recreant to his duty if he does not do his best to make the investigation and file the corresponding information in time against the person arrested without warrant, in order to effect the delivery of the prisoner to the city courts within the period of six hours prescribed by law, and thus prevent his being released by the officer making the arrest. If the city fiscal does not file the information within said period of time and the arresting officer continues holding the prisoner beyond the six-hour period, the fiscal will not be responsible for violation of said article 125, because he is not the one who arrested and illegally detained the person arrested, unless he has ordered or induced the arresting officer to hold and not release the prisoner after the expiration of said period.

Section 2640 of the Revised Administrative Code which specifies the powers and duties of chief of police of the City of Manila, authorizes the latter "to take good and sufficient bail for the appearance before the city court of any person arrested for violation of any city ordinance: Provided, however, That he shall not exercise this power in cases of violation of any penal law except when the fiscal of the city shall so recommend and fix the bail to be required of the person arrested." These provisions do not authorize, either expressly or by implication, the city fiscal to order the detention of the prisoner if bond is not given, not only because they refer to the powers of the chief of police of Manila and not of the city fiscal, but because the only incidental authority granted to the latter is to recommend the granting of the bail to be required of the person arrested for violation of any penal law in order that the chief of police may release the latter on bail. If no bail is given by the person arrested, neither the chief of police, who is only authorized to release on bail, has power to detain the person arrested for more than six hours; nor the city fiscal, who is only empowered to fix and recommend the bail to the chief of police, has authority to order the detention of persons arrested for violation of a penal law. The above-quoted provisions of section 2640 of the Revised Administrative Code refers evidently to persons arrested without warrant, for accused arrested by virtue of a warrant issued by the courts may be released on bail only by order of the court or judge that issued the warrant and has exclusive jurisdiction or control over the person arrested. The purpose of the law in empowering the chief of police of Manila to release the prisoner if he sets up a bail, is to relieve the officer making the arrest from the necessity of taking the prisoner to the city fiscal, and the latter from filing an information with the proper courts within the period of time prescribed by law. The dissenting opinion calls a general principle of law an excerpt of the Corpus Juris Secundum quoted therein which says that "the officer however need not necessarily have personal knowledge of the facts constituting the offense in the sense of having seen or witnessed the offense himself, but he may if there are no circumstances known to him by which materially impeach his information, acquire his knowledge from information imparted to him by reliable and credible third persons or by the information together with other suspicious circumstances" (6 C.J.S., 599, 600), and after the quotation adds: "This is a common law rule implanted in the Philippines along with its present form of government, a rule which has been cited and applied by this Court in a number of cases (U. S. vs. Santos, 36 Phil., 853; U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil., 516). The above-quoted excerpt is not a general principle of law or a common law rule implanted in the Philippines. It is a summary of the ruling of several State courts based on statutory exceptions of the general rule. "It is the general rule, although there are statutory exceptions and variations, that a peace officer has no right to make an arrest without a warrant, upon a mere information of a third person" (5 C.J., p. 404), because "statutes sometime authorize peace officer to make arrest upon information" (4 Am. Jur., p. 17). In none of the cases cited in the dissenting opinion has this Court quoted and applied it. In U.S. vs. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and 28 of the "Provisional Law for the Application of the Penal Law" and section 37, Act No. 183, as the law in force in force in these Islands providing for cases in which a person may be arrested without a warrant, said: These provisions quite clearly set out the powers usually conferred by American and English law upon "peace officers" including "constables," in making arrests without warrants; and since

similar powers are clearly included in the powers conferred upon "agents of authority" in the above cited articles of the "Provisional Law," there can be no doubt that the Commission, in imposing the duty of maintaining order and preserving and protecting life and property within their respective barrios upon municipal councilors and their lieutenants of barrios, conferred upon such officials authority to make arrests without warrant not less extensive than that conferred upon peace officers in Manila in the above-cited provisions of the Manila Charter. (United States vs. Vallejo, No. 4367, decided by this court on September 3, 1908; also United States vs. Burgueta, 10 Phil., 188.) (Emphasis ours.) The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last paragraph of the dissenting opinion, does not contain anything about the implantation in these Islands of the so-called common law rule. In the case of U.S. vs. Battallones (not Ballesteros) 23 Phil., 46, cited also therein, this Court, following the ruling in U.S. vs. Fortaleza, said: In a former case we held that officials in these Islands, who, "by direct provisions of law or by appointment of competent authority are charged with the maintenance of public order and the protection and security of life and property," have authority to make arrests without warrant substantially similar to the authority generally conferred upon "peace officers" in the United States, and more especially that class of `peace officers' known to American and English law as constables; and that "the provisions of section 37 of Act No. 183" (the Charter of Manila) "quite clearly set forth the powers usually conferred by American and English law upon "peace officers" including "constables" in making arrests without warrants," and provide that they "may pursue and arrest without warrant, any person found in suspicious places or under suspicious circumstances, reasonably tending to show that such person has committed or is about to commit any crime or breach of the peace; may arrest, or cause to be arrested without warrant, any offender, when the offense is committed in the presence of a peace officer or within his view". (U.S. vs. Fortaleza, 12, Phil., 472, 479.) And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated the ruling in the previous cases and held: The powers of peace officers in the Philippines, generally stated, are the same as those conferred upon constables under the Anglo-American Common Law. The extent of their authority to make arrests without warrant and the limitations thereon, as held by the Supreme Court, are as stated in the language of the Legislature in the Charter of the City of Manila. (U.S. vs. Fortaleza [1909], 12 Phil., 472). The Administrative Code (section 2204, edition of 1916; section 2258, edition of 1917) enjoins municipal policemen to "exercise vigilance in the prevention of public offenses". The provisions above quoted of section 37 of Act No. 183 have been incorporated in section 2463 of the Revised Administrative Code and those of Rules 27 and 28 were substantially incorporated in section 6, Rule 109 of the Rules of Court. Section 2463 of the Revised Administrative Code reads as follows: SEC. 2463. Police and other officers — Their powers and duties. — The mayor, the chief and assistant chief of police, the chief of the secret service, and all officers and members of the city

police and detective force shall be peace officers. Such peace officers are authorized ... to pursue and arrest, without warrant, any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace; to arrest or cause to be arrested, without warrant, any offender when the offense is committed in the presence of a peace officer or within his view; And section 6 of Rule 109 provides: SEC. 6. Arrest without warrant — When lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; (b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. These are the only provisions of law in force these Islands which enumerate the cases in which a peace officer may arrest a person without warrant, and the so called common law relating to other cases of arrest without warrant cited in the dissenting opinion has no application in this jurisdiction. Therefore, all the considerations set forth in the said opinion about the disastrous consequences which this Court's interpretation of article 125 of the Revised Penal Code will bring to a law enforcement, because "the entire six hours might be consumed by the police in their investigation alone," or that "even if the city fiscal be given the chance to start his assigned task at the beginning of the six hours period, this time can not insure proper and just investigation in complicated cases and in cases where the persons arrested are numerous and witnesses are not at hand to testify," since "the police is not authorized to round up the witnesses and take them along with the prisoner to the city fiscal," are without any foundation. Because they are premised on the wrong assumption that, under the laws in force in our jurisdiction, a peace officer need not have personal knowledge but may arrest a person without a warrant upon mere information from other person. "The right to make arrests without a warrant is usually regulated by express statute, and except as authorized by such statutes, an arrest without a warrant is illegal." (5 C.J., pp. 395, 396.) And statutory construction extending the right to make arrest without a warrant beyond the cases provided by law is derogatory of the right of the people to personal liberty (4 Am. Jur., p. 17). The investigation which the city fiscal has to make before filing the corresponding information in cases of persons arrested without a warrant, does not require so much time as that made upon a complaint of the offended parties for the purpose of securing a warrant of arrest of the accused. In all cases above enumerated in which the law authorizes a peace officer to arrest without warrant, the officer making the arrest must have personal knowledge that the person arrested has committed, is actually committing, or is about to commit an offense in his presence or within his view, or of the time, place or circumstances which

reasonably tend to show that such person has committed or is about to commit any crime or breach of the peace. And the testimony of such officer on the commission of the offense in his presence or within his view by the person arrested, or on the facts and circumstances that tend reasonably to show that said person has committed or is about to commit an offense, would be sufficient evidence or basis for the city fiscal to file an information without prejudice to his presenting of their evidence or witness, if any, during the trial to insure the conviction of the defendant. If the city fiscal does not believe the testimony of the officer making the arrest or consider it sufficient, or has any doubt as to the probability of the prisoner having committed the offense charged, and is not ready to file an information against him on the strength of the testimony or evidence presented, there would be no legal reason or ground for him to wait until further evidence may be secured before dismissing the case against the prisoner, or detaining the person arrested without warrant without violating the precept of article 125 of the Revised Penal Code. After the release of the prisoner, the city fiscal may make or continue the investigation and file afterwards the proper information against him with the corresponding court, if the result of the investigation so warrants, in order to secure a warrant of arrest of the same. Of course, as we have said in our decision for the purpose of determining the criminal liability of a peace officer detaining a person for a longer period of time than the six hours prescribed by article 125 of the Revised Penal Code, "the means of communication as well as the hour of arrest and other circumstances such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration." The period originally fixed by our Penal Code was twenty four (24) hours, and if the city fiscal believes that the period now prescribed by article 125 of the Revised Penal Code is short, and that the law must be amended so as to extend it, it would be proper for the interested parties to take the case to Congress, since it can not be done by judicial legislation. Motion for reconsideration is denied. Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur. PERFECTO, J.: We agree with the above resolution except that which may be at variance with our concurring opinion in this case and with our written opinion in the case of Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214. BRIONES, M., concurring: Estoy enteramente conforme con la resolucion. En la opinion concurrente que dicte en el asunto de Lino contra Fuguso y otros (43 off. Gaz., 1235, 1244) donde se discutio por primera vea el importante punto legal debatido en el presente asunto, dije lo siguiente y lo reafirmo en esta ocasion, saber: Sin discutir la responsabilidad de la Fiscalia por la demora — si esta se puede o no justificar administrativamente es cuestion que no nos compete considerar ni resolver — vamos a limitarnos a comentar y discutir la fase juridica legal. Esta en orden naturalmente el hacer la siguiente pregunta: es correcta, es acertada la asercionde que el "Promotor Fiscal de Manila es un funcionario judicial (judicial officer)," que, por tanto, la entrega al mismo de la persona de

undetenido dentro del periodo de 6 horas equivale a la entrega a las autoridades judiciales correspondentes (proper judicial authorities) de que habla el ariticulo 125 del codigo penal revisado? Creemos que no: no por su letra ni por su espiritu puede aplicarse por extension la fraseologia de ese articulo al Fiscal de la Ciudad de Manila o a cualquier otro Fiscal; ese articulo no puede referirse mas que a un tribunal, a u juzgado, se municipal, sea de primera instancia. Asi que story de perfecto acuerdo con la ponencia cuando positivamente sienta la doctrina de que "si bien un arresto puede hacerse sin orden cuando hay motivos razonalbes apra ello (regla 109, articulo 6, reglamento de los tribunales), el detenido no puede ser recluido fuera del periodo prescrito por la ley, a menos que una orden de arresto se obtenga antes de un tribunal competente" (veanse las autoridades que se citan), y que "en el presente caso el Fiscal de la Ciudad no tenia autoridad para expedir ordenes de arresto y carecia de facultad para convalidar tal detencion ilegal con solo presentar las querellas, o con una orden de su propia cuenta, ora tacita, ora expresa" (veanse asimismo las authoridades que se citan). De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la ciudad despues del periodo de 6 horas prescrito por la ley los papeles sobre un detenido arestado sin previa orden al efecto, no por ello se cura la ilegalidad del arresto y detencion, sino que dicha ilegalidad continua y persiste hasta que el Fiscal presenta la querella y obtiene una orden de arresto del tribunal competente, o que, tratandose de delito, mediante la prestacion de una fianza cuya cuantia se fijare y recommendare por dicho Fiscal, la policia soltare al detenido, a tenor de lo previsto en el articulo 2460 del codigo administrativo. Puede ocurrir, sin embargo, que la policia entregue los papeles a la Fiscalia de la ciudad dentro del periodo de 6 horas, pero que la Fiscalia no solo deja pasar dicho periodo, sin que transcurren dias, hasta semanas sin actuar sobre el caso en uno u otro sentido. La cuestion en orden naturalmente es la siguiente: ¿es legal o ilegal la detencion del arrestado en tal caso? En otras palabras: ¿queda suspenidod el periodo de 6 horas durante el tiempo que el Fiscal de la Ciudad tarda en actuar sobre el caso? La contestacion tiene queser necesariamente negativa. La rigidez., la inflexibilidad del periodo de 6 horas reza no solo para la policia, sinohast para cualquier otra agencia o ramo oficial, sin excluir a la Fiscalia de la ciudad de Manila. Si por cualquier motivo la Fiscalia dejare de actuar dentro de dicho periodo, el deber de la policia o del que tenga la custodia del detenido es soltarle, quiera o no quiera el Fiscal, lo recomiende o no lo recomiende. De otra manera, la restriccion que estatuye la ley a favor de los detenidos sin previa orden de arresto — restriccion que implementa las garantias de la libertad establecidas en la Constitucion — resultaria un mito. La filosofia de la ley es, a saber: solamente se verifica un arresto sin previa orden cuando hay motivos razonalbes para ello, v. gr., cuando un individuo es cogido in fraganti cometiendo un delito. La ley presupone, por tanto, que el Estado tiene a mano todos los elementos necesarios para decider que accion ha de tomar dentro del periodo de 6 horas, ya entregando la persona del detenido a las autoridades judicales correspondientes mediante la querella procedente, a tenor del articulo 125 del Codigo Penal Revisado: ya poniendole en libertad provisional bajo una fianza razonable, de acuerdo con el citado articulo 2460 del Codigo Administrativo; o ya poniendole compoletamente en la calle por falta de meritos en el caso. Si ninguna de estas cosas puede hacer el Estado en 6 horas no puede ser mas que por dos motivos: o poor que se quiere cometer una arbitrariedad, o la maquinaria oficial se halla en un deplorable estado de confusion, indeptitud of impotencia.

Se arguye con enfasis que bajo esta interpretacion la prosecucion del crimen sufriria un serio quebranto, sobre todo en la Ciudad de Manila; que materialmente la Fiscalia no puede actuar adecuadamente sobre algunos casos en el plazo percentorio de 6 horas. Si esto es verdad el remedio no es infringer la ley como cosa inevitable, rutinaria; el remedio seria — o recabar de la Legislatura que se reforme la ley en la forma que se estime conveniente, o implementar ya perfeccionar la maquinaria de la prosecucion criminal, colocandola a la altura de las circunstancias. No hay nada mas anarquico, mas subversivo y fatal para el principio de la autoridad y del buen gobierno que el tener leyes que no se cumplen, leyes que se infringen hasta por los llamados a ponerlas en vigor. "To be or not to be, that is the question." O existe la ley y hay que cumplirla; o si la ley es mala o impracticable, hay que reformarla o derogarla. Lo que no se debe permitir es el disolvente espectaculo de la diaria inobservancia de la ley. Se me ocurre ahora añadir otras observaciones en refuerzo de la arriba transcritas. Creo que ni siquiera es necesario enmendar la ley en el sentido de alargar el periodo de 6 horas provisto en el articulo 125 del Codigo Penal Revisado. Creo que con un poco mas de esfuerzo y buena voluntad la presente ley se podria cumplir en la Ciudad de Manila. La Fiscalia de la Ciudad podria, por ejemplo, establecer turnos semanales o mensuales, segun como se estime conveniente, destinando fiscales que se hagan cargo exclusivamente de los casos de individuos detenidos sin previa orden de arresto, para los efectos de presentar la correspondiente querella contra ellos, o de soltarlos si se viere que no existen meritos suficientes para la prosecucion, sin perjuicio desde luego de ulteriores procedi mientos. Si para realizar satisfactoriamente este trabajo fuese necesario aumentar el personal de la Fiscalia, yo no creo que el gobierno escatimaria el dinero para una atencion tan importante. Esincreible que dentro de 6 horas — si hay voluntad de trabajar y sobre todo de hacer buena y efectiva la ley — la Fiscalia no pueda hacr su composicion de lugar en tales casos, bien para proseguir, bien para no proseguir, de finitivamente o en el entretanto. Hay que tener en cuenta que se trata de casos en que el individuo es detenido, ora porque ha sido sorprendido in fraganti cometiendo una infraccion o un delito, ora poroque se le ha cogido " en lugares sospechosos o bajo cirunstancias sospechosas, que tiendan razonablemente a demostrar que el mismo ha cometido o esta para cometer cualquier crimen o atentado contra el orden y la paz" (E. U. contra fortaleza, 12 Jur. 486). ¿Que es lo que neceista entonces la Fiscalia en tales casos? ¿No esta alli el testimonio del policia, constabulario o agente del orden aprehensor? De modo que la cuestion, en ultimo resultado, es que la Fiscalia tenga o no fe en la integridd y verracidad del agente de la ley. Si la tiene ¿que motivo hay para no formular inmediatamente la querella y obtener asi del juzgado la correspondiente orden de arresto? Y si no la tiene ¿que razon hay para pisotear la libertad individual reteniendo la causa sin accion mas alla de las 6 horas y causando asi una inecesaria vejacion al ciudadano? La cuestion se puede simplificar mas todavia. Todo se reduce, en ultimo termino, a que la Fiscalia pueda contar con la ayda de una policia eficiente, integra y honrada sobre todo, que persiga el crimen si cuartel, pero que tenga el maximo respeto a los derechos del ciudadano. Si la Fiscalia puede tener un modus vivendi con una policcia de semejante tipo y de tales quilates, no hay miedo de que una rigida observancia del requerimiento legal de 6 horas facilitie la inmunidad de los tulisanes, bandidos, gangsters y criminales del bajo mundo, y se ponga en grave peligro la eficaz prosecucion del crimen y la seguridad y sosiego del pueblo. Dentro de las 6 horas hay tiempo mas que suficiente para meter en cintura a toda la canalla ... ¡pero por Dios que no se violen ni pisoteen las garantias consitucionales por miedo a los gansters!

Desde luego que se debe dar cierto margen de viabilidad a la ley. Por ejemplo, si se verifica una detencion sin previa orden de arresto a medianoche, creo que la ley estaria cumplida si en las primeras horas de la mañana siguiente se tomara enseguida accion, aungque ello rebassara un poquito el periodo de 6 horas. Se deniega la mocion de reconsideracion.

TUASON, J., dissenting: I vote to grant the motion for reconsideration. In my dissent from the decision of this Court I contended myself with citing my dissenting opinion in Lino vs. Fugoso, L-1197, 43 Off. Gaz., 1214, 1246, as grounds for my disagreement. As the present decision has gone farther than that decision and contains new statements and conclusions, I deem it convenient to enlarge on my dissent. The term "judicial officers" has been defined to be, in its popular sense, officers of a court (Hitt vs. State, Miss. 181, So. 331) and in its strict sense, "judges and justices of all courts and all persons exercising judicial powers by virtue of their office." (Settle vs. Van Evrea, 49 N.Y., 280.) The city fiscal is a judicial officer in both senses. In the popular or larger sense, he is a judicial officer because he is a part of the legal machinery created for the administration of justice. A prosecuting attorney, charged with the administration of justice and invested with important discretionary power in a motion for a nolle prosequi, is a judicial officer. (State ex rel. Freed vs. Circuit Court of Martin Country, Ind., 14 N.E. 2d 910; State vs. Ellis, 112 N.E., 98, 100; 184 Ind., 307.) In the strict legal sense, the city fiscal is a judicial officer when making preliminary examination because he performs the function of a justice of the peace — assuming, as the majority seem to assume, that the conduct of preliminary examination is a judicial function. By express provision of section 2465 of the Revised Administrative Code, the city fiscal "shall cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances, and have the necessary information or complaints prepared or made against the persons accused." In addition, section 2, Rule 108, of the Rules of Court states that "every justice of the peace, municipal judge or city fiscal shall have jurisdiction to conduct preliminary investigation of all offenses alleged to have been committed, within his municipality or city, cognizable by the Court of First Instance." The city fiscal is not any the less a judicial officer simply because he can not issue warrant of arrest. The power to issue warrant of arrest is not essential ingredient of a judicial office. This is especially so when, as in cases like the present, the accused is already under arrest when the city fiscal intervenes and there is no need of issuing an order of arrest. As to power to commit a detained person to prison, if that be necessary, the majority are not exactly right when they affirm that the city fiscal is not clothed with it. I shall come to this later. However that may be, the city fiscal is a "judicial authority" within the contemplation of article 125 of the Revised Penal Code. This is the inevitable result from the fact that in the City of Manila, the city fiscal

under the existing scheme of the government is the only officer to whom the person arrested without warrant may be presented. The majority opinion admits that the municipal court and the Court of First Instance of Manila "do not make or conduct a preliminary investigation proper," and criminal complaints are not filed with them but with the city fiscal. Reasoning from another angle, we reach the same conclusion. We are to presume that in using the generic term "judicial authorities" — and in plural — instead of more specific word "justice," "judge," or "court", the lawmaker intended to include in the operation of the article under consideration all officers who are named to receive the prisoner from the arresting officer. We have to adopt this construction if we are to give effect to the law and the rule of court I have cited, and if we are to avoid what I might call, without meaning offense, an absurdity. Under no canon of statutory construction is there justification for this Court's opinion that the police and the city fiscal have to share the six hours fixed in article 125 of the Revised Penal Code. The language, the nature and the object of this provision unerringly point to the theory that the six hours mentioned in the Revised Penal Code are meant exclusively for the police officer who made the arrest. I can discern absolutely no indication of any intention to have the city fiscal squeeze in his action within this brief period, a period which, in many cases, is not even sufficient for the police. Read separately or in conjunction with the entire criminal procedure, article 125 does not furnish the slightest indication of legislative intent to place the city fiscal and the police under the same category. Article 125 of the Revised Penal Code was devised for one purpose; section 2465 of the Revised Administrative Code and section 2, Rule 108, of the Rules of Court for another. Article 125 is a penal provision designed to prevent and punish police abuses for which the police are noted. The investigation by the city fiscal is strictly and essentially procedural. It is an integral part of the procedure for bringing the case to trial. Little reflection will disclose the disastrous consequences which this Court's interpretation of article 125 of the Revised Penal Code will bring to law enforcement. It nullifies the role of the fiscal in the administration of criminal law. For sheer lack of time, the release of the prisoner arrested without warrant will, in a great number of cases, be inevitable, unless the city fiscal files charges without sufficient and adequate investigation. The alternative will be for the city fiscal to be on a 24-hour watch lest in his sleep the time for him to act might slip by. But this is only a poor alternative. Regardless of any vigilance on his part the opportunity for the city fiscal to make the required investigation cannot always be assured. The law gives the police absolute power to detain a prisoner for six hours without incurring penal liability. There is no law which obliges the police to take the prisoner to the city fiscal before the expiration of six hours from the time of arrest. There can be cases where the entire six hours might be consumed by the police in their investigation alone, or just in the chasing, collection and transportation to the police station of the law breakers. This can happen in tumultuous and other mob offenses in which many people are involved and there is necessity of screening the guilty ones. Supposing then that the police should deliver the prisoner or prisoners to the city fiscal at the last minute of the six hours through the negligence or by force of circumstances, what time is there for this functionary to comply with his duty? And even if the city fiscal be given the chance to start his assigned task at the beginning of the six hour period, can this time insure proper and just investigation in complicated cases and in cases where the persons arrested are numerous and witnesses are not on hand to testify? It is well to

remember that the police are not authorized to round up witnesses and take them along with the prisoners to the city fiscal. In the light of these consequences I can not imagine that the meaning which this Court attaches to article 125 of the Revised Penal Code so much as entered the thought of the legislature. No sound-minded legislature could have intended to create such situation, which is easy to perceive unless we assume that the legislative purpose was to tie up the hands of the law and give lawlessness full sway; unless the legislature wanted to coddle and pamper lawless elements to a calamitous extreme. When the Court says that the prisoner, after being released at the end of six hours from the time of his arrest may be rearrested should the city fiscal find sufficient evidence and prefer charges against him, it takes for granted that underworld characters and hardened criminals are honorable men who would keep themselves ready and handy for a second arrest. The Court says: To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code, would be to authorize the detention of a person arrested without warrant for a period longer than that permitted by law without any process issued by a court of competent jurisdiction. The city fiscal may not, after due investigation, find sufficient ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally detained for days or weeks without any process issued by a court or judge. What is that "proper process" referred to in the above quoted portion of the decision? Whatever is meant by "proper process," we should note that there is no fundamental difference between the proceeding before a justice of the peace and the procedure followed by the city fiscal. There is nothing important the justice of the peace may do in the interest of the accused in the cases triable before the Court of First Instance which the city fiscal may not do. If the city fiscal can not issue an order of arrest, the justice of the peace himself does not do so to give the detention the stamp of legality. At least, I am aware of no law which tells him to take this step, and I can see no material advantage which an accused could derive from this ceremony. All the justice of the peace does which matters to the accused is admit him to bail, if the crime be bailable, and proceed to an investigation. But the city fiscal does just that; and if the necessary to order the commitment of the prisoner pending ascertainment of his guilt, the city fiscal no less than the justice of the peace or judge of first instance has the authority also, as I propose to show later. In actual practice, a person arrested without warrant in a regular municipality frequently suffers greater injustice and is subject to, and frequently goes through, greater hardships than his counterpart in the City of Manila. We are witness to the common spectacle of cases being dismissed on motion of the provincial fiscal for want of sufficient evidence after the prisoner had been bound by the justice of the peace over to the Court of First Instance for trial and after he had languished in jail for months or years. Prisoner's detention in that case is not considered illegal. This anomaly seldom takes place in cities where the preliminary investigation is entrusted to the city fiscal. Rarely in the City of Manila is a case dropped for insufficiency of evidence after it has been determined in a preliminary investigation that the prisoner should be held for trial. On the whole, the method by which the

preliminary investigation is conducted by the prosecuting attorney is more conducive to efficiency, minimizes or eliminates conflicts of opinion in the existence of probable cause, and better insures prompt dispatch of criminal cases to the lasting benefit of the prisoner. Only physical impossibility, as I understand it, is in the way for the adoption of this method throughout the country. It is a mistake, in my humble judgment, to confuse a prisoner's detention during the six-hour period fixed in article 125 of the Revised Penal Code and his continued detention after he is turned over to the city fiscal. As I have said, article 125 regulates the time within which a police officer may hold the prisoner under his responsibilty, and it applies to the police alone. It will hardly be contended that this article, or any other law, or the constitution limits the period within which a prisoner may be detained after he is delivered to the justice of the peace. If that is so, and since the city fiscal acts in lieu of a justice of the peace, there is no sound basis, legal or practical, for denying to the former the same time and the same freedom of action that is enjoyed by the latter.

consistent and general practice heretofore followed with clear, express statutory sanction. Section 2640 of the Revised Administrative Code authorizes the chief of police of the City of Manila "to take good and sufficient bail for the appearance before the city court of any person arrested for violation of any city ordinance," while in cases of violation of any penal law, according to the same article, the fiscal of the city may, and does, recommend and fix the bail to be required of the person arrested. Power to fix bail necessarily implies power to recommend or order the detention of the prisoner if bond is not given. This in its working is no more nor less than the power to commit an accused to prison pending investigation of this case, power which the majority erroneously say is not possessed by the city fiscal. The constitutional and statutory provisions and rules cited by the majority are of general application which are good only in the absence of specific enactments. The controlling provisions in the case at bar are sections 2460 and 2465 of the Revised Administrative Code and section 2, Rule 108, of the Rules of Court. The decision further says:

By the same token, there is no sound reason for denying to the proceeding by the city fiscal the same attributes which adhere to the proceeding before the justice of the peace. After the arresting officer produced the prisoner before the city fiscal, the law takes its course in the same manner that it does when the examining officer is the justice of the peace or judge of first instance. From that time the arresting officer ceases to have any control over the prisoner save to keep him in custody subject to the orders of the city fiscal. The police step out and the law steps in and extends to the prisoner the mantle of protection against inquisitory examination by the police. From that time on he enjoys the rights granted by law to all accused persons — the right to give bail and the right to testify freely uninfluenced by any fear of violence or other forms of maltreatment. The danger envisioned by article 125 of the Revised Penal Code is past. The proceeding before the city fiscal does not lose its character of due process of law by its being conducted by the city fiscal instead of a judge. For one thing, preliminary investigation is not a trial. It is a constitutional right. It is purely a matter of statutory regulation. (Potenciana Dequito vs. Hugo O. Arellano et al., G.R. No. L-1336; 32 C.J.S., 456.) A judicial proceeding which lies within the power of the legislature to provide or withhold without infringing the fundamental law may be placed in the hands of any officer other than a judge.

A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and other political subdivisions. If the city fiscal has no authority, and he has not, to order the arrest of a person charged with having committed a public offense even if he finds, after due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other persons even though, after investigation, he becomes convinced that the accused is guilty of the offense charged. I do not think the foregoing paragraph is relevant to the instant case. We are not dealing with the authority of a police officer to make arrest without warrant. There is no question raised against the legality of the petitioners' arrest. Our problem concerns the time in which the city fiscal may make his investigation and the scope of his power.

The jurisdiction to make a preliminary examination or investigation is not even considered judicial. Judges who perform this function do not do so as judicial officers. Municipal executives here and in the United States are conferred this power. "The power to examine and to commit persons charged with crime is not judicial, but is one of the duties of the conservators of the peace, and it may be, and usually is, vested in persons other than courts, as, for instance, justices of the peace or police magistrates, or persons exercising jurisdiction analogous to that exercised by justices of the peace, or who are ex officio justices of the peace, such as mayors, notaries public, or court commissioners. Power to hold preliminary examinations may be exercised by the United States commissioners, and United States district judges who, while making the preliminary examination, exercise the powers of commissioners only." (16 C.J., 319-320.)

Assuming the above-quoted statement to be pertinent to the issues, the same can not, in my humble view, pass unchallenged. Under certain, well-defined circumstances, an officer may and constantly does make arrests without a court order, with or without complaint. An officer in good faith may arrest without warrant when he believes that a person is guilty of a crime, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise. (6 C.J.S., 596.) This practice is not derived from any express authority but on the necessity of catching law violators before they disappear and hide. I have not come across any law naming specific offenses for committing which the offenders shall be arrested without court orders.

There is no basis for the fear that "the city fiscal may not, after due investigation, find sufficient ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally detained for days or weeks without any process issued by a court or judge." This statement overlooks the

It is also a general principle of law that an officer need not necessarily have personal knowledge of the facts constituting the offense himself, in the sense of having seen or witness the offense himself, but he may, if there are no circumstances known to him which materially impeach his information, acquire his knowledge from information imparted to him reliable and credible third persons, or by information together with other

suspicious circumstances. (Id., pp. 599, 600.) This principle ought to serve as a qualification to the ruling laid down by this Court, that "a peace officer has no power to arrest a person without a warrant upon complaint of the offended party or any other person." Under the rule I have quoted, a police officer certainly may arrest a person pointed to him as having committed a crime provided that the information or complaint comes from a reliable source and under circumstances as to make an ordinary reasonable man to believe it to be well-founded. When the victim of a robbery or aggression, for example, should subsequently spot the criminal and request an officer to arrest him, the officer would not have to seek or wait for a warrant of arrest before detaining the man, provided again that there was good ground to believe the truth of the accusation.

also even where the former acts are not necessarily repugnant in express terms, or in all respects, to the new act." (59 C.J., 919-920.) "While, as a general rule, implied repeal of a former statute by a later act is not favored, yet `if the later act covers the whole subject of the earlier act and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier'." Posadas vs. National City Bank of New York, 296 U.S., 497; 80 Law ed., 351.)

This is a common law rule implanted in the Philippines along with its present form of government, a rule which has been cited and applied by this Court in a number of cases. (U.S. vs. Santos, 35 Phil., 853; U.S. vs. Batallones, 23 Phil., 46; U.S. vs. Samonte, 16 Phil., 516.)

But this rule of implied repeal holds good only as regards laws of general application. Another well known rule of the statutory construction tells us that preliminary investigations in Manila and other chartered cities are to be excluded from the operation of the Rules of Court. Such investigations are provided for the special enactments which, because of their special nature and limited application, must be excepted from and prevail over the general provisions. "When the provisions of a general law, applicable to the entire state, are repugnant to the provisions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does dot operate to repeal the special law, either in whole or in part, unless such appeal is provided for by express words, or arises by necessary implication. An intention to repeal local acts generally is not intolerable from the fact that the general acts specifically excludes one locality from its operation." (59 C. J. . 934.) There is no apparent intention in the Rules of Court to repeal the laws under which preliminary investigations in Manila have to be conducted by the city fiscal. The contrary contention is evidenced by section 2 of the rule 108, which provides that "Every justice of the peace, municipal judge or city fiscal shall have jurisdiction to conduct preliminary investigation of all offenses alleged to have been committed within his municipality or city, cognizable y the Court of First Instance," (Espiritu vs. De La Rosa [July 31, 1947], L-1156, 45 Off. Gaz., 196; Hashim vs. Boncan [Nov. 22, 1941], 40 Off. Gaz., 13th Supp., p. 13.) In the first of these cases, Mr. Justice Padilla, speaking for the court, categorically held that the Rules of Court had not repealed and supplanted the provisions of the Revised Administrative Code regarding the power and authority of the City Fiscal to conduct preliminary investigation." And in Hashim vs. Boncan, the Court, through Mr. Justice Laurel, said:

Padilla, J., concurs. SUPPLEMENTARY TUASON, J., dissenting: When I filed my dissent from the decision of the Court on the occasion of the denial of the motion for reconsideration, it was my understanding that there was going to be only a minute resolution. I make this remark not as a complaint but as my explanation for writing my dissent in advance of the reasoned resolution. Even then I would contend myself with resting my dissent on what I have already stated did the resolution contain new propositions to be answered and disclose misunderstanding of some of many statements to be cleared. As this is in the nature and reply, topics will be treated without regard to continuity of thought. The resolution says that article 30 of the Provisional Law for the Application of the Penal Code in the Philippines has been repealed by section 17 of Rule 109, but that section 31 is still in force except the last sentence. And so, according to the resolution, is section 2 of Act No. 194. Without discussing the materiality of those laws, I disagree that they are still in effect. Like article 30, article 31 of the Provisional Law and section 2 of Act No. 194 deal with procedure in justice of the peace courts in general covered by the new Rules of Court. The Rules of Court, in the words of their introductory section, concern "pleading, practice and procedure in all courts of the Philippines, and the admission to practice law therein." These Rules are complete revision and a complete re-enactment of the entire field of procedure, and there is every reason to believe that they were intended to replace, with some exceptions, all previous laws on the subject, especially Spanish laws which had long been out of harmony with the new mode of pleading and practice. If the last sentence of article 31 is repealed, as the resolution says, I see no valid ground for not holding the other parts of that article repealed so. "Where a later act covers the whole subject of earlier acts, embraces new provisions, and plainly shows that it was intended, not only a substitute for the earlier acts, but to cover the whole subject then considered by the legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to subject matter. The rule applies not only where the former acts are inconsistent or in conflict with the new act, but

As the Rules of Court took effect on July 1, 1940, the case of Marcos vs. Cruz, decided on May 30, 1939, and cited in the resolution, is no authority for the opinion that no law has been enacted amending or repealing section 2 of Act No. 192.

The framers of the Rules could not have intended to brush aside these lessons of experience and to tear down an institution recognized by law and decision and sanctioned by years of settled practice. They could not have failed to keep intact in effective machinery in the administration of criminal justice, as expeditious and simple as any reform they have infused into the new Rules. The term "proper court or judge" in section 17, Rule 109, of the Rules of Court 1 should be interpreted to mean, in the case of Manila, city fiscal, under the last mentioned canon of interpretation. In Manila, the city fiscal performs the duties devolving on justices of the peace in regular municipalities in the conduct of preliminary investigations, and all criminal charges by the police and offended parties are filed with him. And it is admitted that prisoners arrested without warrant in Manila may be taken only to the city fiscal by the arresting officer. Let it be noted also in this connection that section 17 of Rule 109 regulates the taking of persons arrested to the court or judge, not the filing of complaint.

In view of this circumstances; in view of the fact that neither the judges of first instance nor the municipal judges of Manila are authorized to conduct preliminary hearings other than the purpose of determining the amount of bail (section 2474 of the Revised Administrative Code), the result of applying section 17 of Rule 109 to Manila would be virtually to eliminate preliminary investigation in this city of persons arrested without a warrant. The decision creates a vacuum, a situation which this Court on another occasion refused to countenance in the forceful language above quoted in Hashim vs. Boncan et. al. There, the Court continued:

The resolution, as a solution to the quandary in which it places the city fiscal, would have him go to Congress. But, as I trust I have shown, the laws on the subject need no supplementation and implementation. They have no gaps to be filled or ambiguities to be cleared. The loopholes exist only as a direct result of this Court's new ruling. Section 2474 of the revised Administrative Code and its predecessors have operated smoothly, without a hitch for nearly half a century. Not even when the arresting officer had 24 hours to take arrested persons to a judicial authority was it ever imagined, much less asserted, that the city fiscal had to borrow his time from the police.

To sustain the theory of repeal is to wipe out these advantages. Not only this. If neither section 11 nor section 13 of Rule 108 is applicable to the preliminary investigation conducted by the City Fiscal, as we have above shown, and if existing legislation thereon is to be deemed repealed, then the matter would be left uncovered by rule or law. There would thus be a void crying for urgent reform. There would be no such void if the old and tried procedure is kept in being, untouched by the new Rules. Withal, our own knowledge of the history of this portion of the Rules here involved does not warrant an interpretation not contemplated when we drafted and deliberated upon these Rules. And while, perhaps, the language could have been clearer and the arrangement made more logical, consideration to expediency and the avowed purpose of preliminary investigation point to the already trodden path hereinabove indicated.

The resolution in laying down the rule that the city fiscal has no power to issue warrant of arrest or "an order or commitment of release by a written warrant containing the ground on which it is based," thinks it is necessary to advert, "in justice to the city fiscal," that this official does not pretend to possess such authority, since it is only in the dissenting opinion, it says, where the claim is made.

The resolution has interpreted article 125 of the Revised Penal Code with meticulous adherence, at best, to its latter, and open disregarded, at worst, of its spirit and of the pernicious results that follow from such interpretation. The construction which the majority give to the term "judicial authority" makes it impossible for the city fiscal to perform his assigned duties with the consequence that for lack of time, malefactors will have to be turned loose before proper investigation in conducted, or prosecution filed on insufficient evidence, in many cases. Nevertheless, I am not pleading, in the case, for a departure from the letter of the law. I merely submit that the city fiscal, as was emphasized in my dissent from the decision, is a judicial officer or judicial authority both in the popular and the legal sense of the term, and that it is unjust, unwarranted by any rule of interpretation, absolutely disastrous to the administration of criminal law to identify the city fiscal with the police, forcing him to file an information or release the prisoner within the six hours intended for the arresting officer alone. I do not contend that the term "judicial authority" be expanded beyond its literal and legal meaning, although if necessary this might be done to carry out the obvious purpose of the law, but I take exception to the unjustified restriction and limitation placed on the meaning of "judicial authority" which not only does violence to the letter and spirit of article 125 of the Revised Penal Code but leads to an extremely anomalous, not to say impossible, situation. We do not have to look outside for the meaning of "judicial authority," as a simple reading of article 125 of the Revised Pena Code and section 2474 of the Revised Administrative Code yields the clear intent of the legislature. This intent, as manifested in laws that have been amended by section 2465 and section 2474 of the Revised Administrative Code, crystalized in a system of practice that have received "the imprint of judicial approval" in various decisions of this Court. (U. S. vs. McGoven, 6 Phil. 261; U. S. vs. Ocampo, 18 Phil. 122;U. S. Carlos, 21 Phil. 553; Hashim vs. Boncan, ante; Espiritu vs. De la Rosa, ante.)

At the outset I deny that I attributed to the city fiscal power to issue warrant of arrest; and did not say in an unqualified manner that he has power to issue commitment. On the first point, what I said was an implicit aknowledgment of the opposite. Let me quote from the second paragraph of page 2 of my dissenting opinion what I did say: The city fiscal is not any the less a judicial officer simply because he can not issue warrant of arrest. The power to issue warrant of arrest is not essential ingredient of a judicial office. On the power to commit prisoners, the same paragraph of my opinion shows what I said. As to the power to commit a detained person to prison, if that be necessary, the majority are not exactly right when they affirm that the city fiscal is not clothed with it. It shall come to this later. And taking the matter up again on page 11, I said: Section 2460 of the Revised Administrative Code authorizes the chief of police of the City of Manila "to take good and sufficient bail for the appearance before the city court of any person arrested for violation of any city ordinance," while in cases of violation of any penal law, according to the same article, the fiscal of the city may, and does, recommended and fix the bail necessarily implies power to recommend or order the detention of the prisoner if bond is not given. This i its working is no more nor less than the power to commit an accused to prison pending investigation of his case, power which the majority erroneously say is not possessed by the city fiscal. There is nothing in this statement any outright affirmation that the city fiscal has power to issue commitment papers. There is, on the contrary, an implied admission that the power, as it is ordinarily exercised by a judge or court, does not exist. I merely submitted as my personal opinion and interpretation of section 2460 of the Revised Administrative Code, regardless of what the city fiscal thinks, that it confers upon the latter official a power which, performed in conjunction with the power of the chief of police, amounts in its practical operation to a power to commit a man to prison. And I said this in answer to the

sweeping assertion (which apparently was made in the decision in complete oblivion of section 2460, supra), that to give the city fiscal unlimited time might result in injustice, since, the decision says, The city fiscal may not, after due investigation, find sufficient ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegal detained for days or weeks without any process issued by a court or judge. I intended to emphasize by citing section 2460 of the Revised Administrative Code, that a prisoner could secure his released, pending investigation of his case, in the same manner and with the same facilities that he could if the complaint or information had been filed with a court. In citing and stating my interpretation of section 2460 of the Revised Administrative Code, I wished to show what I considered an erroneous ruling that If the city fiscal has any doubt as to the probability of the defendant having committed the offense charged, or is not ready to filed the information on the strength of the testimony or evidence presented, he should release and not detain the person arrested for a longer period than that prescribed in the Penal Code. The majority come back with the assertion that the provisions of section 2460 of the Revised Penal Administrative Code2 do not authorize, either expressly or by implication, the city fiscal to order the detention of the prisoner if the bond is not given, not only because they refer to the power of the chief of police of Manila and not of the city fiscal, but because the only incidental authority granted to the latter is to recommend the granting of the bail by the chief of police may release the latter on bail. I disagree again. I do not believe that a provision is rendered nugatory by the mere fact that it is foreign to the subject of the main provision or to the title or caption of the section, if otherwise the language is clear. The title or caption is important only in determining the meaning of laws which are ambiguous and uncertain. The provision of section 2460 of the Revised Administrative Code quoted in the resolution does not suffer from such infirmity. In truth, the proviso in section 2460 is not alien to the enacting clause. The proviso relates to the chief of police, conferring on him power of the same nature as does the enacting clause, with the only difference that, in cases of violations of a municipal ordinance the chief of police acts independently, on his own responsibility, while in cases of violations of a penal law, he acts with the advice of the city fiscal and the latter fixes the amount of bail. The intervention of the city fiscal was only inserted, in my opinion, in view of the gravity of the latter class of cases. As to the other reason given in the resolution why, it says, continued detention of a prisoner beyond six hours is not authorized — namely, that the authority granted to the city fiscal to recommend the granting of bail by the chief of police and to fix the amount of bail to be required of the person arrested, is only incidental — my comment is that, whether the power to take bail or release prisoners belongs to the city fiscal or the chief of police, is inconsequential. To my mind, the important point is that the accused, as the

resolution admits, may be released on bond. From this power, irrespective of who possess it, is implied the power to keep the prisoner under detention if he does not file a bond. When the resolution concludes that if no bond is given by the person arrested, "neither the chief of police, who is only authorized to release on bail, has power to detain the person arrested for more than six hours; not the city fiscal, who is empowered to fix and recommend the bail to the chief of police has authority to release person arrested in violation of penal law," I can not follow. In a nutshell, the majority's reasoning, as I understand it, is that the law authorizes the city fiscal to recommend and fix the bail "in order that the chief of police may release the latter (prisoner) on bail," but that if the prisoner does not put up a bond to be set at large just the same. The filing of bail is not a meaningless gesture which may be taken advantage of by an accused at pleasure with the same effect. The privilege to put a bond extended to an accused must be the price or condition of his temporary release. The law does not have to say in so many words that if he does not put a bond he would be kept in confinement in order that we may be warranted in reaching this result. The resolution says that "the purpose of the law in empowering the chief of police of Manila to release the prisoner if he puts up a bail, is to relieve the officer making the arrest the necessity of taking the prisoner to the city fiscal, and the latter from filing an information with the proper courts within the period of time prescribed by law." I have reflected closely on the meaning of this statement to be sure that I did not misunderstand it. Unless I still fail to grasp the idea, I think the statement is self-annulling and self contradictory. The filing of bail cannot relive the arresting officer from the necessity of taking the prisoner to the city fiscal for the simple reason that such bail, in cases of violations of penal laws, can be filed only on recommendation of, and its amount can be fixed by, the city fiscal. In other words, the prisoners necessarily has to be taken to the city fiscal before any bond can be executed. And it would be underestimating the intelligence of an accused to expect him to file a bond within six hours from the time of his arrest if he is aware that, if at the end of those hours the city fiscal had not preferred any charges against him and no order of commitment had been issued by the proper judge, he (accused) had to be released. In the face of the latter theory, no prisoner would, even if he could, perfect a bond within six hours knowing that if he did not, he would be a free man, at leased temporarily, within what remains of six hours, while if he did, the bond would enable the city fiscal to take his time to file case against him in court. The gravamen of the court's argument seems to be that a commitment by a court or judge is essential to validate the detention beyond the time specified in the Revised Penal Code. I do not share this opinion. Neither such commitment by a judge nor a formal complaint is required by the constitution in order that a person may lawfully be kept in jail pending investigation of his case. An opportunity to file a bond in reasonable amount satisfies the constitutional demands. Nor does the bail have to be fixed or granted by a court. Sheriffs and police officers have been authorize by statutory enactments in other jurisdiction to take bail. At least one court has gone so far as to uphold, "independently of statue, a practice of long standing on the part of the sheriff to take bail in criminal cases of prisoners committed for not filing bail, and release them from confinement." (Dickinson vs. Kingsbury, 2 Day [Com., 1.] Now then, under section 2460 of the Revised Administrative Code, the chief of police of Manila, as already shown, is allowed to take bail by himself in cases violation of a municipal ordinance and with the intervention of the city fiscal in other

cases. Under this provision and this practice, a detention prisoner arrested without warrant is not deprived of any privilege of benefit guaranteed by the constitution. The lack of formal complaint does not in the least prejudice him or deprive him of any benefit enjoined by his counterparts in the provinces. On its legal aspect, let it be observed that all the proceedings conducted by the city fiscal is a preliminary and summary inquiry which is purely a matter of statutory regulation. Preliminary investigation by the prosecuting attorney when authorized by law is due process no less than one conducted by a judge. It may be suppressed entirely, and if it may be suppressed, it may be entrusted to any officer, provided only the constitutional right to give bail is carefully safeguarded. As this Court has said in Hashim vs. Boncan, supra, and U.S. vs. Ocampo, supra: The prosecuting attorney of the city of Manila is presumed to be as competent to conduct a preliminary investigation as the average person designated by law to conduct a "preliminary examination" under the provisions of General Orders No. 58. He is a sworn officer of the court, and the law imposes upon him the duty of making such investigations. For such purpose the legislature may designate whom it pleases within the judicial department. The resolution has taken pain to cite and explain in detail what it says are the laws on arrests in the Philippines, and takes me to task for quoting from 6 Corpus Juris Secundum, 599-600 and citing the decisions of this Court. We are told the effect that the excerpts from my dissenting opinion, quoted on page 16 of the resolution are without any foundation because, it is said, they are premised on the wrong assumption that, under the laws in force in our jurisdiction, a place officer need not have personal knowledge but may arrest a person without a warrant mere information from other person. The resolution assumes that those excerpts are predicated on what I call the common law rule, on Corpus Juris Secundum, and on decisions of the Supreme Court. I commend a reading to my dissenting opinion. It will be seen that I did not base on those laws, rules or decisions my statements, "The entire six hours might be consumed by the police in their investigation alone;" "Even if the city fiscal be given the chance to start his assigned task at the beginning of the six hour period, this time can not insure proper and just investigation in complicated cases and in cases where the persons arrested are numerous and witnesses are not on hand to testify," and "The police is not authorized to round up witnesses and take them along with the prisoner to the city fiscal." It will be seen that far from using as my premise those laws, rules and decisions, which I said contain in brief outlines the powers of police officers to make arrests, I said clearly on page 12 of my dissenting opinion: I do not think the foregoing paragraph is relevant to the instant case. We are not dealing with the authority of the police officer to make arrest without warrant. There is no question raised against the legality of the prisoner's arrest. Our problem concerns the time period within which the city fiscal may make his investigation, and the scope of his power. It was the majority decision which brought the question of the authority of the police to make arrests into the discussion. I only met the decision on its own territory though I regarded that territory as outside the

legitimate circle of the present dispute. I cited Corpus Juris Secundum and decisions of this Court, which I said are derived from common law, to refute the statement, a fortiori, a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other person seven though after investigation, he becomes convinced that the accused is guilty of the offense charged. I especially wanted to express my disagreement with the thesis in the decision that A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. It was my humble opinion that the rules I cited and the rules on which the decisions of this Court are predicated, were general provisions of law applicable to varying and changed circumstances, and I wanted to deny the insinuation that there were, or there might be, arrests without warrant "expressly authorized by law"; so I countered that "I have not come across any law naming specific offenses for committing which the offenders shall be arrested without court orders." This is my concept of express provisions authorizing arrests without a warrant. Section 6 of Rule 109, section 2463 of the Revised Administrative code, and the provisional Law on the subject of arrest, cited in the resolution in an attempt to show the error of my citations, can not be a source of comfort to the majority. Rather, I should think, they reinforce my position, for I believe that the rules and decisions I cited the rules and laws called to our attentions as the real thing, are in substantial agreement. My mistake was in not citing, myself, Rule 109, section 6, of the Rules of Court, section 2463 of the Revised Administrative Code, and the Provisional Law. I might have found and cited them had I thought the matter worthy of more than a passing notice. Now that the resolution has gone into this subject at length, I shall devote a few more lines to it at the peril of tiring the reader on what I believe an impertinent topic. My citation from Corpus Juris and my comment that "this is a common law rule implanted in the Philippines along with its present form of government, a rule which have been cited or applied by this Court in a number of case," has met with decision. I am informed that my quotation is "not a general principle of law or common law rule implanted in the Philippines"; that "it is the summary of the ruling of several states courts based on statutory exceptions of the general rule." I do not think I wise wide off the mark when I said that the common law rule has been transplanted to this country along with the present form of government and that the rules and decisions I have quoted spring from the common law. And the majority are not closer to the marked when they affirmed that my quotation from Corpus Juris Secundum, and section 2463 of the Revised Administrative Code are purely statutory creation.

There was common law before there were statutes. Common law in England and in the U. S. preceded statement statutes and constitutions. Statutes and constitutions in matters of arrest came afterwards, restating, affirming, clarifying, restricting or modifying the common law. The English common law has been adopted as the basis of jurisprudence in all the states of the Union with the exception of Louisiana "where the civil law prevails in civil matters." (11 Am. Jur., 157.) And in England, under the common law, sheriffs, justices of the peace, coroners, constables and watchmen were entrusted with special powers as conservators of the peace, with authority to arrest felons and persons reasonably suspected of being felons. Whenever a charge a felony was brought to their notice, supported by reasonable grounds of suspicion, they were required to apprehend the offenders, or at the least to raise hue and cry, under the penalty of being indicted for neglect of duty. See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the numerous cases therein cited. It is a footnote appended o the statement of a common law principle which of the same tenor as that just noted. Treatises on arrest not infrequently start with a statement of the common law rule and speak of statute and constitutions in the sense I have mentioned. Moran's Commentaries on the Rules of Court mention of the common law. (Vol. 2, p. 577) in connection with the power to make arrest without a warrant. The doctrine taken from 5 C. J., 395-396-that "the right to make arrest without a warrant is usually regulated by express statute, and, except as authorize by such statutes, an arrest without a warrant is illegal" — is not at war with the proposition that the authority of peace officers to make arrest originated at common law and that constitutions and statutes merely re-stated and defined that the authority with greater precision, naming the officers who may make arrest, the grades of offenses for, and the circumstances under, which arrest may be effected, etc. Arrests made by officers not designated or under circumstances not coming within the terms of the statute or constitution are illegal. Even then, broad constitutional or statutory inhibition against search and seizure of property or persons without a warrant has exceptions, as can be inferred from the two sentences preceding the above sentence quoted in the resolution. This exceptions are cases where the public security has demanded the search and seizure. Well established exceptions to this rule have been long recognized in cases of felony, and of breaches of the peace committed in the presence of the party making the arrest. (5 C. J., 395.) Arrests under such circumstances are authorized in spite of statutes and constitutions. The power to make such arrest is deeply rooted in the unwritten or common law, which "includes those principles, usage and rules of action applicable to the government and security of person and property which do not rest for their authority an any express or positive declaration of the will of the legislature." Although acting at his peril, the powers to arrest on" probable cause of suspicion" even by a private person are "principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)

I have remarked that there is no fundamental difference between my citations, on the other hand, and section 6 of Rule 109 and section 2463 of the Revised Administrative Code, Cited by the majority of the Court, on the other hand. There is only a difference in phraseology. The very case of U. S. vs. Fortaleza relied upon in the resolution speaks of barrio lieutenant's power to make arrest as not inferior to that usually conferred on peace officers known to American and English law as constables. The resolution quotes this from 5 C. J., 404: It is a general rule, although there are statutory exceptions and variations that a peace officer has no right to make an arrest without a warrant upon mere information of a third person. This is only a part of the sentence. The omitted portion is more important from my point of view and contradicts the point of view and contradicts the point stressed by the majority. The complete sentence in. It is a general rule, although there are exceptions and variations, that a peace officer has no right to make an arrest without a warrant, upon mere information of a third person or mere information of committed, that right being limited to arrests for offenses of the grade of felony, as elsewhere shown. It will be noticed that the quoted portion relates to arrest for misdemeanor. For further proof, I invite attention to the title of the Section on page 401, paragraph (a), which reads: "For Misdemeanor — aa. In General." Let it be noted that the power to arrest for misdemeanor is different from, and more restricted than, the power to arrest for felony, as is further demonstrated by the last clause of the full sentence above quoted. This clause refers us back to section 30, p. 399, which says: "At common law, (here again common law mentioned), and subject to the provisions of any applicatory statute, and subject officer may arrest, without a warrant, one whom he has reasonable or probable grounds to suspect of having committed of felony, even though the person suspected is innocent, and generally, although no felony has in fact been committed by any one, although, under some statutes a felony must have been actually committed, in which case an may arrest, without a warrant, any person he has reasonable cause for believing to be the person who committed it." As is elsewhere stated, section 6 of Rule 109 and section 2463 of the Revised Administrative Code, like the authorities I have cited, do not limit the power of a police officer to make arrest tho those cases where he saw with his own eyes or heard with his own ears the commission of an offense. Section 6 of a Rule 109 and section 2463 of the Revised Administrative Code empowers police officers. to pursue and arrest, without warrant, any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace, and section 6 of Rule 109 authorizes a peace officer or a private person to make arrest when

an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it Rule 28 of the Provincial Law itself empowers judicial and administrative authorities "to detain, or cause to be detained person whom there is reasonable ground to believe guilty of some offense" or "when the authority or agent has reason to believe that unlawful act, amounting to a crime had been committed." To make arrest on suspicion or on information is not new; it is an everyday practice absolutely necessary in the of public security and firmly enshrined in the jurisprudence of all civilized societies. The power to arrest on suspicion or on reasonable ground to believe that a crime has been committed is authority to arrest on information. Information coming from reliable sources maybe, and it often is, the basis reasonable ground to believe that a crime has been committed or of reasonable ground of suspicion that a person is guilty thereof. Suspicion reasonable ground and information are interviewed within the same concept. The necessary elements of the ground of suspicion are that the officer acts upon the belief of the person's guilt, based either upon facts or circumtances within the officers own knowledge, or information imparted by a reliable and credible third person provided there are no circumstances known to the officer sufficient to materially impeach the information received, It is not every idle and unreasonable charge which will justify an arrest. An arrest without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by facts, circumstances, or credible information calculated to produce such suspicion or belief. Failure to take these principles into account has led to the belief that: The investigation which the city fiscal has to make before filing the corresponding information in cases of persons arrested without a warrant, does not require so much time as that made upon a complaint of the offended parties for the purpose of securing a warrant of arrest of the accused. In all cases above enumerated in which the law authorizes a peace officer to arrest without warrant, the officer making the arrest must have personal knowledge that the person arrested has committed, is actually committing, or is about to commit an offense in his presence or within his view, or of the time, place or circumstances which reasonably tend to show that such person has committed or is about to commit any crime or breach of the peace. And the testimony of such officer on the commission on the offense in his presence or within his view by the person arrested, or on the facts and circumstances that tend reasonably to show that said person has committed or is about to commit an offense, would be sufficient evidence or basis for the city fiscal to file an information without prejudice to his presenting of other evidence of the defendant. (Pp. 16-17 of the Resolution.). Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised Administrative Code, as well as the authorities I have quoted, show the fallacy of the idea that the arresting officer knows, or should know, all the facts about the offense for the perpetration, or supposed perpetration, of which he has made the arrest. The resolution fails to realize that in the great majority of cases an officer makes arrest on information or suspicion; that "suspicion implies a belief or opinion as to the guilt based upon facts or circumstances which DO NOT AMOUNT TO PROOF," and that information and suspicion by their nature

require verification and examination of the informers and other persons and circumstances. While an officer may not act on unsubstantial appearances and unreasonable stories to justify an arrest without a warrant, obviously in the interest of security, an officer who has to act on the spot and cannot afford to lose time, has to make arrest without satisfying himself beyond question that a crime has been committed or that the person suspected is guilty of such crime. A police officer can seldom make arrest with personal knowledge of the offense and of the identity of the person arrested sufficient in itself to convict. To require him to make an arrest only when the evidence he himself can furnish proves beyond reasonable doubt the guilt of the accused, would "endanger the safety of society." It would cripple the forces of the law to the point of enabling criminals, against whom there is only moral conviction or prima facie proof of guilt, to escape. Yet persons arrested on necessarily innocent so that the prosecuting attorney should release them. Further and closer investigation not infrequently confirm the suspicion or information. The majority of arrests are not as simple as a police officer catching a thief slipping his hand into another's pocket or snatching someone else's bag, or suprising a merchant selling above the ceiling price, or seizing a person carrying concealed weapons. Cases of frequent occurrence which confront the police and the prosecution in a populous and crime-redden city are a great deal more complicated. They are cases in which the needed evidence can only be supplied by witnesses, whom the arresting officer or private persons has not the authority or the time to round up and take to the city fiscal for examination with in what remains, if any, of six hours. Let me give two examples. 1. A murder with robbery is reported to the police. An alarm is broadcasted giving a description of the murderer. Later a police officer is told that the wanted man is in a store. He proceeds to the store and. besides believing in good faith of his informant, detects in the man's physical appearance some resemblance to the description given in the alarm. All this occurs at the holy hours of night. Should the officer refrain from making an arrest because he is not certain beyond reasonable doubt of the identity of the suspected murderer? Should the city fiscal order the release of the prisoner because of insufficiency of evidence and because the six hours are expiring, or should he prefer formal charges (if that can be done at midnight) on the strength of evidence which, as likely as not, may be due to a mistaken identify? Should not the prosecuting attorney be given, as the law clearly intends, adequate time to summon those who witnessed the crime and who can tell whether the prisoner was the fugitive?, allowing the prisoner to give bail, if he can. 2. A police officer is attracted by screams from a house where a robbery has been committed. The officer rushed to the place, finds a man slain, is told that the murderers have filed. The officer runs in the direction indicated and finds men with arms who, from appearances, seem to be the perpetrators of the crime. The people who saw the criminals run off are not sure those are the men they saw. The night was dark, for criminals like to ply their trade under cover of darkness. The officer does not, under these circumstances, have to seek an arrest warrant or wait for one before detaining the suspected persons. To prevent their escape he brings them to the police station. On the other hand, would the fiscal be justified in filing an information against such persons on the sole testimony of the

police officer? It is not his duty to wait for more proofs on their probable connection with the crime? Should the city fiscal file an information on sufficient evidence, or should he as the only alternative, order the release of the prisoners? Does either course subserve the interest of justice and the interest of the public? If the arrested persons are innocent, as they may be, is either interest be served by hasty filing of information against them, or would they rather have a more thorough investigation of the case? Cases like these with varying details can be multiplied ad infinitum. They form the bulk of underworld activities with which the forces of law have to cope and with which the general public is vitally concerned. The public would not be secure in their homes and in the pursuit of their occupations if his Court, through unreasoning worship of formalism, throws down a method, practice and procedure that have been used here and elsewhere from time immemorial to the end of service and in the interest of public security. The public security. The public is not much interested in such minor offenses as pick-pocketing, fist fights and misdemeanors or violations of municipal ordinances for which arrests can be made by police officers only when committed in their presence or within their hearing. The decision of this Court leaves the city fiscal no alternative between releasing prisoners for insufficiency of evidence due to lack of time to secure more, and filing information against persons who may be innocent of the crimed charge. The latter course, defeats directly the very aims of preliminary investigation is to secure the innocent against hasty, malicious and oppresive prosecution and to protect him from open and public accusation of crime, and from the trouble, expense, anxiety of a public trial, and also to protect the State from useless and expensive prosecutions. (Hashim vs. Boncan, No. 47777, January 13, 1941; 40 Off. Gaz., 13th Supp. p. 13; U.S. vs. Mendez, 4 Phil.; 124; U.S. vs. Grant and Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil. 666; People vs. Colon, 47 Phil. 443.) Even more deplorable would be the acquittal of guilty accused due to lack of proofs which the prosecution, if it had been afforded sufficient time, could have gathered. The foregoing goes, too, for the concurring opinion. There is only one more point to which we wish to address ourselves briefly. The concurring opinion contains this passage: Dentro de las 6 horas hay tiempo mas que suficiente para meter en cuenta atoda la canalla ... Pero; por Dios que no se violen ni pisoteen lasgarantias constitucionales por miedo a los gangsters! No one can disagree with this though — as an abstract proposition. The only trouble is that the opinion does not cite any concrete constitutional provision or guaranty that is infringed by our dissent. I take the suggestion in the resolution — that "it would be proper for the interested parties to take the case to Congress, since it can not be done by judicial legislation" — to be a tacit recognition that the matter is purely one of statute and that no constitutional impediment is in the way of changing the law and enlarging the power of the city fiscal in the premises. And let it be said that the objection in the concurring opinion to this suggestion is rested, not on constitutional grounds but on the supposition that the law is good enough to be left alone. All which tempts us to paraphrase the famous apostrophe of that equally famous woman in French history, and exclaim, "Oh Constitution! what grievous mistakes are committed in thy name!" The concurring opinion is in error when it sees shadows of fear gangster in our dissent. Society no less than a natural person has the right to protect itself, and the arrest and punishment of transgressors of its laws is

one of its legitimate means of self-protection and self-preservation. As far as the insinuation of fear may reflect on those who are duty bound to have part in such arrest and punishment, the application of criminal laws without quarters to the end which they are intended to serve, is not in strict logic a sign of apprehension. Such course, rather than tolerance, leniency or indifference towards crimes and appeasement of lawless and other elements and groups who wield the power of physical and verbal relations, calls for exactly the opposite quality of fright. Padilla, J., concurs.

2. G.R. No. L-26723

December 22, 1966

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

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

3. G.R. No. L-64261 December 26, 1984 JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners. The Solicitor General for respondents. ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...". Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them.

warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.

3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court .6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit: Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. We find petitioners' thesis impressed with merit. Probable cause for a search is 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 the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "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."

As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given

roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of nonconformity" but poses no clear and imminent danger to state security. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued.

2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21 IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Aquino, J., took no part.

Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus: The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19 That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

Separate Opinions ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur.

nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken.

Separate Opinions ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar

Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur.

4. G.R. No. 82585 November 14, 1988

probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit.

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents. G.R. No. 82827 November 14, 1988 LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

G.R. No. 83979 November 14, 1988. LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979. RESOLUTION PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine

Art. III, 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 nder 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 addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur Separate Opinion GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of

public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. Separate Opinions GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt

of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).<äre||anº•1àw> The United States Supreme Court is even more emphatic, to wit: In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression.

xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied.

5. G.R. No. 81510 March 14, 1990 HORTENCIA SALAZAR, petitioner, vs. HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment Administration, and FERDIE MARQUEZ, respondents.

booking sa Japan. Mag 9 month's na ako sa Phils. ay hindi pa niya ako napa-alis. So lumipat ako ng ibang company pero ayaw niyang ibigay and PECC Card ko. 2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint was assigned, sent to the petitioner the following telegram:

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.: This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under Article 38 of the Labor Code, prohibiting illegal recruitment. The facts are as follows: xxx

xxx

xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn statement filed with the Philippine Overseas Employment Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz: 04. T: Ano ba ang dahilan at ikaw ngayon ay narito at nagbibigay ng salaysay. S: Upang ireklamo sa dahilan ang aking PECC Card ay ayaw ibigay sa akin ng dati kong manager. — Horty Salazar — 615 R.O. Santos, Mandaluyong, Mla.

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF LAW. 4. On the same day, having ascertained that the petitioner had no license to operate a recruitment agency, public respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads: HORTY SALAZAR No. 615 R.O. Santos St. Mandaluyong, Metro Manila Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, it having verified that you have — (1) No valid license or authority from the Department of Labor and Employment to recruit and deploy workers for overseas employment;

05. T: Kailan at saan naganap and ginawang panloloko sa iyo ng tao/mga taong inireklamo mo?

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38 of the same code.

S. Sa bahay ni Horty Salazar.

This ORDER is without prejudice to your criminal prosecution under existing laws.

06. T: Paano naman naganap ang pangyayari?

Done in the City of Manila, this 3th day of November, 1987.

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha ang PECC Card ko at sinabing hahanapan ako ng

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure and

Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of News Today proceeded to the residence of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner was operating Hannalie Dance Studio. Before entering the place, the team served said Closure and Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was accredited with Moreman Development (Phil.). However, when required to show credentials, she was unable to produce any. Inside the studio, the team chanced upon twelve talent performers — practicing a dance number and saw about twenty more waiting outside, The team confiscated assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar. 6. On January 28, 1988, petitioner filed with POEA the following letter: Gentlemen: On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully request that the personal properties seized at her residence last January 26, 1988 be immediately returned on the ground that said seizure was contrary to law and against the will of the owner thereof. Among our reasons are the following: 1. Our client has not been given any prior notice or hearing, hence the Closure and Seizure Order No. 1205 dated November 3, 1987 violates "due process of law" guaranteed under Sec. 1, Art. III, of the Philippine Constitution. 2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guarantees 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." 3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2 policemen) are the private residence of the Salazar family, and the entry, search as well as the seizure of the personal properties belonging to our client were without her consent and were done with unreasonable force and intimidation, together with grave abuse of the color of authority, and constitute robbery and violation of domicile under Arts. 293 and 128 of the Revised Penal Code. Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) in all (and which were already due for shipment to Japan) are returned within twenty-four (24) hours from your receipt

hereof, we shall feel free to take all legal action, civil and criminal, to protect our client's interests. We trust that you will give due attention to these important matters. 7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition; on even date, POEA filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS-88-836.1 On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as one for certiorari in view of the grave public interest involved. The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the Court's resolution. Under the new Constitution, which states: . . . 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. 2 it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors may not exercise this power: xxx

xxx

xxx

But it must be emphasized here and now that what has just been described is the state of the law as it was in September, 1985. The law has since been altered. No longer does the mayor have at this time the power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local Government Code, conferring this power on the mayor has been abrogated, rendered functus officio by the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino people. Section 2, Article III of the 1987 Constitution pertinently provides that "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 person or things to be seized." The constitutional proscription has thereby been manifested that thenceforth, the function of determining probable cause and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by judges, this being evidenced by the elimination in the present Constitution of the phrase,

"such other responsible officer as may be authorized by law" found in the counterpart provision of said 1973 Constitution, who, aside from judges, might conduct preliminary investigations and issue warrants of arrest or search warrants. 4

paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishment and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. 8

Neither may it be done by a mere prosecuting body: The above has now been etched as Article 38, paragraph (c) of the Labor Code. We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is done and not necessarily to secure the conviction of the person accused," he stands, invariably, as the accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of arrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5 Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight moments. We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect. The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien) ordered by the President or his duly authorized representatives, in order to carry out a final decision of deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in matters involving foreign affairs. We have held: 11 xxx

(c) The Minister of Labor or his duly authorized representative shall have the power to recommend the arrest and detention of any person engaged in illegal recruitment. 6 On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor arrest and closure powers: (b) The Minister of Labor and Employment shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after proper investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the closure of companies, establishment and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. 7 On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor Minister search and seizure powers as well: (c) The Minister of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of documents,

xxx

xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief Executive "when he deems such action necessary for the peace and domestic tranquility of the nation." Justice Johnson's opinion is that when the Chief Executive finds that there are aliens whose continued presence in the country is injurious to the public interest, "he may, even in the absence of express law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41). The right of a country to expel or deport aliens because their continued presence is detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12 The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to order arrests) can not be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole domain of the courts. Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, it having verified that you have —

3) A delivery truck with Plate No. NBS 542; 4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and 5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong Silang."

(1) No valid license or authority from the Department of Labor and Employment to recruit and deploy workers for overseas employment;

In Stanford v. State of Texas, the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime of conspiracy)" was held to be a general warrant, and therefore invalid. The description of the articles sought to be seized under the search warrants in question cannot be characterized differently.

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38 of the same code. This ORDER is without prejudice to your criminal prosecution under existing laws. 13 We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void, thus: xxx

xxx

xxx

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history; the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan." Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. 14

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets, tables, communications/ recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents/communications, letters and facsimile of prints related to the "WE FORUM" newspaper.

For the guidance of the bench and the bar, we reaffirm the following principles: 1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may issue warrants of arrest and search:

2) Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and 3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly,

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of deportation. WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized as a result of the implementation of Search and Seizure Order No. 1205.

1) Toyota-Corolla, colored yellow with Plate No. NKA 892; No costs. 2) DATSUN, pick-up colored white with Plate No. NKV 969; SO ORDERED.

6. G.R. No. L-50884 March 30, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO SALUFRANIA, defendant-appellant.

PADILLA, J.: In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with intentional abortion, committed as follows: That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack, assault and use personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully wedded wife of the accused, by then and there boxing and stranging her, causing upon her injuries which resulted in her instantaneous death; and by the same criminal act committed on the person of the wife of the accused, who was at the time 8 months on the family way, the accused likewise did then and there willfully, unlawfully, and feloniously cause the death of the child while still in its maternal womb, thereby committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and punished under Art. 246 and Art. 256, paragraph I, of the Revised Penal Code, to the damage and prejudice of the heirs of said woman and child in the amount as the Honorable Court shall assess. CONTRARY TO LAW

The accused having been sentenced to suffer the penalty of death, this case is on automatic review before this Court. At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo. Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte, testified that, after passing the Board Examination, he was employed as a Resident Physician of La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San Fernando, La Union and that later, he joined the government service, starting from 1968 up to the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortem examinations; that he was called upon by the Municipal Judge of Talisay to examine the corpse of Marciana Abuyo-Salufrania that was exhumed from its grave in the Municipal Cemetery of Talisay at around 11:00 o'clock in the morning of 11 December 1974; that his post mortem examination lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same day. He reduced his findings of injuries into writing. (Exhibit "A"), which, together with their probable cause, as testified to by him, are as follows: Injury

Cause

1) Multiple abrasions with

"Blunt object or friction by

contusion, left leg, middle part,

hard object" (tsn., Aug. 20, posterior

covering an area of

1976, p. 7)

about 2 & 1/2 by 5 inches. 2) Abrasions, 1/2 by 2

Friction on a hard object"

inches, medial side of the cubi

(tsn., Aug. 20, 1976, p. 7)

Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses charged. After trial the lower court rendered a decision ** dated 9 August 1978, the dispositive part of which states: WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. "For unselfish, valuable and exemplary service rendered by counsel de oficio, Atty. Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him subject to the availability of funds SO ORDERED.

tal fossa (back left leg) 3) Multiple pinhead sized

Hard pinhead sized material

wounds, right face, starting

(tsn., Aug. 20, 1976, p. 7)

from the side of the right eye

down to mandibular bone (right check) 4) Upper right eyelid

No cause given

more prominent than the left

The other witness for the prosecution was Pedro Salufrania, son of herein appellant and of the deceased. The lower court's decision states that, by reason of interest and relationship, before Pedro Salufrania was allowed to testify against his father-accused Filomeno Salufrania, he was carefully examined by the prosecuting officer and the defense counsel under the careful supervision of the court a quo, to determine whether, at his age of 13 years old, he was already capable of receiving correct impressions of facts and of relating them truly and, also, whether he was compelled and/or threatened by anybody to testify against his father-accused. 1 The lower court found Pedro Salufrania to be determined and intelligent. He convincingly declared that he was not threatened by any of his uncles on his mother's side to testify against his father, because it was true that the latter killed his mother. Then, formally testifying as the prosecution's lone eyewitness, he stated that his father Filomeno Salufrania and his mother Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3 December 1974, in their small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said quarrel, he saw his father box his pregnant mother on the stomach and, once fallen on the floor, his father strangled her to death; that he saw blood ooze from the eyes and nose of his mother and that she died right on the spot where she fell.

eyelid ("the right upper eyelid a little bit bulging than the left eye "and" sort of "swollen") (tsn., Aug. 20, 1976, pp. 7-8) 5) Tongue protruding bet

Usually, the main cause of

ween the lips, about 1 inch teeth

protruding tongue during

line.

death is (by) strangulation. (tsn., Aug. 20, 1976, p. 8)

6) Deceased is pregnant with a baby boy about 78 months old (tsn., Aug. 20, 1976, p. 8). Dr. Dyquiangco testified that after conducting the post mortem examination, he issued a certification thereof (Exhibit "A"); that he issued a death certificate (Exhibit "B") for the deceased Marciano AbuyoSalufrania, bearing the date of 5 December 1974, made on the basis of the information relayed by a certain Leonila Loma to his nurse before the burial, without mentioning the cause of death; that the cause of death, as cardiac arrest, was indicated on said death certificate only after the post mortem examination on 11 December 1974.

Pedro Salufrania further testified that after killing his mother, the accused- appellant went out of the house to get a hammock; that his brother Alex and he were the only ones who witnessed how the accused killed their mother because his sister and other brothers were already asleep when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body while their father was away; that their father arrived early the next morning with the hammock and after placing their dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial. Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and had refused and still refused to live with his father-accused, because the latter has threatened to kill him and his other brothers and sister should he reveal the true cause of his mother's death. The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract (Exhibit "C"). He declared that his sister was more or less seven (7) months pregnant when she died; that he first came to know about his sister's death on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and headache; that he went to Tigbinan to request for the body of his sister so that it may be buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay Cemetery on 6 December 1974. Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his deceased sister went to his house and refused to go home with their father Filomeno Salufrania; that when asked for the reason why, his nephew Alex Salufraña told him that the real cause of death of their mother was not stomach ailment and headache, rather, she was boxed on the stomach and strangled to death by their father; that immediately after learning of the true cause of death of his sister, he brought the matter to the attention

of the police authorities of Talisay, Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of the Provincial Fiscal of Camarines Norte. The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the accused Filomeno Salufrania. Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that Marciana Abuyo died at around 6:00 o'clock in the morning of 4 December 1974 in her house at Sitio Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house because his attention was attracted by the bright light in the fireplace and he saw Filomeno Salufrania boiling "ikmo" and garlic as medicine for his wife who was about to deliver a child; that he helped the accused by applying "ikmo" to the different parts of the body of Marciana Abuyo and by administering the native treatment known as "bantil", that is, by pinching and pulling the skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter arrived at about 7:00 o'clock in the morning of 4 December 1974 and that at that time Marciana Abuyo was already dead.

children to get the hammock of Kaloy Belardo whose house was about two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila Abuyo and Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife that preceded the latter's death, and that during the lifetime of the deceased, they loved each other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya and Liling Angeles Balce were also present. The case was considered submitted for decision by the trial court on 18 July 1978. As aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to the penalty of death. The appellant assigns the following errors allegedly committed by the trial court:

Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974. He further testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the latter's brother-in-law at Tigbinan, Labo, Camarines Norte. Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974 after being called by one of the latter's sons; that she saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana was suffering from an old stomach ailment. The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased Marciana Abuyo; that at around 9:00 o'clock in the morning of 3 December 1974, Marciana arrived home from Talisay where she had earlier stayed for about a week; that she was hungry upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to his work while his wife rested in their house; that when he returned home at 3:00 o'clock in the afternoon of that same day, his wife complained to him of stomach pain and he was told to prepare the beddings because she was already sleepy; that at about 4:00 o'clock in the morning of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain, and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan arrived and assisted him in administering to his wife the native treatments known as "hilot" or massaging and "banti" that Geronimo Villan and Francisco Repuya alternately applied "bantil" to his wife but when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico Villanueva who might be able to ,save the life of their mother; that his children left and returned without Rico Villanueva but the latter arrived a little later. Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not able to cure his wife, since the latter was already dead when he arrived; that after the death of his wife, he ordered his

I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE RULE THAT THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE DOUBT. II ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION. III THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED. Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only thirteen (13) years old when he testified, and only eleven (11) years old when the offense charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes among those who cannot be witnesses:

Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly. Therefore, according to appellant, for failure of the trial court to determine Pedro's competence, the presumption of incompetency was not rebutted and Pedro's testimony should not have been admitted. Moreover, appellant stresses that there is no basis for the trial court's finding that Pedro is intelligent. Appellant's contention is without merit. The record shows that the trial court determined Pedro Salufrania's competency before he was allowed to testify under oath. 2 The trial court's conclusion that Pedro was intelligent and competent is fully supported by Pedro's responsiveness to the questions propounded to him when he was already under oath:

A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976). Pedro's strong sense of moral duty to tell the truth, even though it should lead to his father's conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that he was no longer a child of tender years at the time of his testimony. Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked whether he was threatened by his uncle to testify against his father, shows that Pedro was lying and proves that he did not appreciate the meaning of an oath at all. 3 Again, this contention is without merit, Pedro became confused when the trial court ordered that the original question be reformed. Pedro's confusion is apparent from the fact that when asked the third time, he affirmed his first answer,

A. Did you go here in court to testify voluntarily? Q. Yes, Your Honor.

Q. Isn't it that your uncle threatened you with bodily harm if you will not give statement before the police?

A. Were you not forced by your uncle to testify in his case?

A. No, sir.

Q. No, I was not forced by my uncle. xxx xxx xxx

xxx xxx xxx

A. The accused is your father?

Q. But later you actually went with your uncle to the police because you were threatened by him with bodily harm if you will not follow him?

Q. Yes, sir.

A. Yes, sir.

A. Do you love him?

Q. Is it true that your uncle threatened you with bodily harm if you will not give statement to the police?

Q. No, sir. A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976) A. Your father is accused now of crime which carries the penalty of death, are you still willing to testify against him? xxx xxx xxx Q. Why did you say that you don't love your father A. Because he killed my mother. Q. And that is the reason why you hate your father now?

Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro. First, Pedro testified on direct examination that his mother died in the evening of December 3. while on crossexamination he said that she died in the morning of December 4. It must be noted that he affirmed twice during cross-examination that his mother died on December 3, just as he had testified during direct examination. Significantly, he did not mention December 4 as the date when she died, as appellant would make it appear. Pedro merely answered 'yes' to the question "And isn't it that your mother died in the early morning on that day (December 4) and not on the evening of December 3?" 4 Thus, Pedro's answer could have resulted only from a misapprehension of the a question, and for no other reason. Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave the house to get a hammock after strangling the victim and then came back the following morning. However, upon

cross-examination, Pedro testified that appellant left at noon or in the afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant sleep beside the dead body of his mother. Again Pedro misapprehended the question propounded to him. Ajudicious reading of the transcript will bear this out: Q. When did your father leave to get the hammock? A. In the afternoon. Q. That may be when the body was brought to Talisay. When your father, rather, when you said that your father left to get a hammock so that your mother may be brought to Tigbinan what time was that? A. About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976) One may discern that the court itself noticed that there was a missapprehension when it commented "that maybe when the body was brought to Talisay" after Pedro answered "In the afternoon". When Pedro answered "about 12:00 noon' he must have been referring to the time when appellant carried his dead wife to Tigbinan. It must be noted that the question was so worded that it could have misled Pedro to think that what was being asked was the time when appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro's testimony that he saw his father leave in the evening of December 3 and again saw him asleep and thus not noticed appellant's coming back after securing a hammock and sleeping beside the deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his father sleeping beside his dead mother. By then, appellant had already returned with the hammock. Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in the morning of December 4, while on cross-examination, he said it was in the evening. 5 It must be pointed out that Pedro merely answered "yes" to a question purportedly mentioning the time when the victim's body was transferred to Tigbinan. The question is as follows: "The corpse of your mother was brought to the Tigbinan proper when the vigil was had in the evening of December 4, is that right?" It is to be noted that the question's thrust is whether or not the victim's body was brought to Tigbinan. The time it was brought was merely incidental. Thus, Pedro may not have paid attention to the part of the question involving time. Moreover, the phrase "in the evening" may have referred either to the time of transport of the body or to the vigil, which could have definitely confused Pedro. Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and sister, kept vigil beside their mother's dead body that night, while on cross-examination, he testified that they just kept lying down and pretended to sleep. 6 There is nothing inconsistent here. The children could have kept vigil while lying down with their deceased mother. Appellant further cites other alleged improbabilities to discredit Pedro's testimony. Appellant contends that it was improbable for Pedro to have seen the attack on his mother since he testified that the room was dimly lighted, and that, while the attach was going on, he closed his eyes pretending to sleep. 7 This contention is without merit. Even though the room was dimly lighted, Pedro was only two (2) meters away from his

parents; thus, he could easily see, as he saw, the attack on his mother. 8 Also, although he pretended to be asleep, it was unlikely that he kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to be expected that he had his eyes open and, thus, he saw the heinous crime unfold and ultimately consumated. Appellant alleges that he does not believe that it was fear of him that caused the delay in Pedro's divulging the real cause of his mother's death until 10 December 1974. According to appellant, such fear could no longer have influenced Pedro from December 6, the date he started to live separately from him. This contention is untenable. Even though Pedro started to live separately from his father from December 6, it cannot be said that the influence of appellant's threat suddenly ceased from that time. It must be noted that Pedro was young and was still very much under appellant's influence and control. The thought and memory of his father's viciousness were still too fresh even after three days from his mother's death. The fear that he too could be killed by appellant in like manner must have deterred him from divulging the truth earlier. Appellant also alleges that it was improbable for Pedro to have just watched the killing of his mother. This contention is untenable. At that moment, when his mother was being assaulted and strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different people react differently to the same types of situations. 9 One cannot overlook that there is no standard form of behaviour when one is confronted by a shocking occurrence.10 Appellant next alleges that since the prosecution has failed without satisfactory explanation to present Pedro's brother Alex who is alleged to be also an eyewitness to the killing of the victim, it is presumed that Alex's testimony would be adverse to the prosecution if presented. This contention is without merit. First, Alex, who is younger than Pedro by 3 years, may not have been competent to testify due to his tender age. Second, even assuming that he was competent to testify, his testimony could be merely corroborative. Corroboration is not necessary in this case because the details of the crime have already been testified to by Pedro with sufficient clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. 11 Witnesses are to be weighed, not numbered, and it is a well established rule that the testimony of a single witness, even if uncorroborated, but positive and credible, is sufficient to support a conviction. 12 In any event, it is not for the appellant to say how many witnesses the prosecution should have presented. 13 The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been satisfactorily explained. In fact, some of them are not material since they neither touch upon the manner of death of the victim nor question the identity of the killer, both of which were unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities explained away, Pedro's testimony remains unperturbed. Even if there were discrepancies, such discrepancies were minor and may be considered as earmarks of verisimilitude.14 The trial court's assessment of Pedro's testimony, as quoted hereunder, deserves more than passing consideration:

... The testimony of eye-witness Pedro Salufrania, 13-year old son of the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears to be very clear, convincing and truthful. It is vivid as to the details of the horrible occurence that took place at about 6:00 o'clock in the evening of December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and cruel death of her (sic) mother. He and his brother Alex were the only eyewitnesses to the gory crime committed by their father. The credibility of this witness (Pedro Salufrania) and his testimony was invested when, despite rigid cross-examination, the veracity of his testimony in chief was not impeached. He remained firm and on the verge of crying, when he pointed an accusing finger at his father during the trial. He was unshaken notwithstanding a long and detailed cross-examination. And, there is reason to bestow complete credence to his testimony because he had the opportunity to closely observe how his father had deliberately and cruelly ended the life of his mother. Despite his tender age and apparent childish innocence, this Court believes that he can clearly perceive and perceiving, make known his perception, precluding the possibility of coaching or tutoring by someone. His declaration as to when, where and how the horrible incident complained of happened is the believable version.15 Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the first time that the doctor conducted an autopsy on a cadaver which had been buried for about a week. It must be noted, however, that although this was the doctor's first autopsy under circumstances present in this case, he had, however, conducted similar post-mortem examinations on ten (10) other occasions. This would constitute sufficient experience. Significantly, appellant did not object to the doctor's expression of medical opinions during the trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into consideration with regard to the autopsy, including embalming and the state of the cadaver's decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a reputable public official in whose favor the presumption of regularity in the performance of official duties must be applied. Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro Salufrania's testimony. Both are consistent on material points. Thus, the Court sees no reason to disturb the conclusions reached by the trial court insofar as their credibility and the appellant's guilt are concerned. Appellant's third assignment of error alleges that the trial court erred in discrediting his evidence simply because the testimonies of the defense witnesses were consistent on material points. Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed so as to dovetail with each other. This contention is without merit. The Court notes, first of all, that appellant did not even bother to discuss his defense in order to refute the massive evidence against him. This is tantamount to an admission that he could not adequately support his version of Marciana Abuyo's death. The trial court's reasons for rejecting the defense version, as hereunder quoted, are tenable and sound. Thus —

On the contrary, the testimonies of defense witnesses Geronimo Villan, Angeles Liling Balce and the accused Filomeno Salufrania suspiciously dove-tailed in every detail as to when, where and how .Marciana Abuyo died at 6:00 o'clock in the morning of 4 December 1974, in their house at sitio Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these points, these witnesses and the accused made statements which seemed to be very fresh and clear in their minds, despite the lapse of four long years. Their exact and uniform declarations on these points, their phenomenal recollections, without sufficient special or uncommon reason to recall, rendered their testimonies unconvincing. If at all, their testimonies appeared to this Court to be an eleventh hour concoction. And, as defense witnesses, after observing them and their declarations on the witness stand, they appeared to the Court to be untruthful and unreliable. For, despite the synchronization of time when, the place where and how the incidence happened, their testimonies on other material points revealed their tendency to exaggerate and their propensity to falsehood, thus-Aside from the accused Filomeno Salufrania, there are three other witnesses for the defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is nothing in the testimony of Juanito Bragais because he did not witness how and when Marciana Abuyo died. Francisco Repuya, who was also alleged by Filomeno Salufrania to be present when Marciana Abuyo died, did not testify. Accused Filomeno Salufrania never claimed that he summoned for Angeles Liling Balce. According to him Angeles Liling Balce was not present during the moment of death of Marciana Abuyo, for she was fetched by him only after the death of his wife. Logically, therefore, there is no basis for the presentation of Angeles Liling Balce that she was present during the moment of death of Marciana Abuyo. She was merely play-acting. Geronimo Villan who claimed he passed-by the house of Filomeno Salufrania and saw the latter boiling water with "ikmo" and garlic, as medicine for his wife Marciana Abuyo, who was about to give birth was discredited by accused himself who declared he was merely boiling water for the hot drink of his wife, who was suferring from her old stomach ailment. In like manner, witness Geronimo Villan discredited the accused Filomeno Salufrania, about the presence of Francisco Repuya, who allegedly alternated with Geronimo Villan in applying the native treatments of 'hilot' and 'bantil' to Marciana Abuyo, when throughout his testimony he (Geronimo Villan) never mentioned the presence of Francisco Repuya. After closely observing defense witnesses Geronimo Villan and Angeles Liling Balce, this Court is convinced that their testimonies and accounts of the incident are fabricated, untruthful and not worth of credence. Certainly, they were not present immediately before and during the moment of death of Marciana Abuyo. ... Added to these, there is one scandalous circumstance, which to the mind of this Court, betrays the guilty conscience of the accused. If there was nothing revealing in the face of the deceased Marciana Abuyo, why was her face covered by a piece of cloth by the accused. ... Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony of witnesses. This Court will normally not disturb the findings of the trial court on the credibility of witnesses,

in view of its advantage in observing first hand their demeanor in giving their testimony. 16 Such rule applies in the present case. Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show that he had the intention to cause an abortion. In this contention, appellant is correct. He should not be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows: 1. That there is a pregnant woman. 2. That violence is used upon such pregnant woman without intending an abortion. 3. That the violence is intentionally exerted. 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom. 17 The Solicitor General's brief makes it appear that appellant intended to cause an abortion because he boxed his pregnant wife on the stomach which caused her to fall and then strangled her. We find that appellant's intent to cause an abortion has not been sufficiently established. Mere boxing on the stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but not necessarily to cause an abortion. The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno Salufrania committed and should be held liable for the complex crime of parricide with unintentional abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused upon his victim. It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused should be punished with the penalty corresponding to the more serious came of parricide, to be imposed in its maximum period which is death. However, by reason of the 1987 Constitution which has abolished the death penalty, appellant should be sentenced to suffer the penalty of reclusion perpetua. WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the recent decisions of the Court. With costs against the appellant, SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

7. G.R. No. 101919 July 3, 1992 RODOLFO ALCANTARA, petitioner-appellant, vs. THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, plaintiff-appellee.

PARAS, J.: This is an appeal by petition for review on certiorari from the Decision of the Sandiganbayan promulgated on August 1, 1991 and its Resolution on the Motion for Reconsideration, promulgated on October 2, 1991, in Criminal Case No. 14885, entitled "People of the Philippines v. Rodolfo Alcantara", for violation of Article 171 of the Revised Penal Code. The information upon which the petitioner was tried and convicted by the respondent Sandiganbayan, reads: That on or about the 1st day of July 1987, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then a contractual employee of the Quezon City government; taking advantage of his official position and committing the offense in relation to his duties did then and there willfully, unlawfully and feloniously make an untruthful statement in a narration of facts, by then and there declaring in the Personal Data Sheet (Civil Service Form No. 212), a public document where the accused is legally bound to disclose the truth, that he is a Civil Service Eligible (Professional) having taken the examination in December 1978 at the Ramon Magsaysay Elementary School, with a rating of 80.35% when in truth and in fact, as the said accused well knew, he is not so, the truth being that he is a Career Service (Sub-Professional) eligible having taken the examination in Quezon City on December 7, 1980 with a rating of 70.36%, and by virtue of which misrepresentation, he was appointed Community Relation Officer which requires the qualification of a Career Service (Professional). CONTRARY TO LAW. The prosecution witnesses presented were Orlando Abad and Editha Isles. The former testified that he has worked as Community Relation Assistant in the Office of the Community Relations, Quezon City from 1980. During the change of administration after the EDSA revolution, accused Alcantara with a designation as Management and Information Analyst, took over their office. Accused according to Abad was already a Quezon City Hall employee being then a Technical Assistant of the Mayor (Brigido Simon, Jr.). (Rollo, pp. 27 & 28)

Abad also averred that when he discovered that the accused was applying for the position of Community Relation Officer, he (Abad) went to the Office of the Personnel Officer and found out that the accused was being proposed for appointment to the vacant position, hence, he filed a formal protest with the Civil Service Commission being the next-in-rank employee and with the lateral entry of accused Alcantara, (Ibid., p. 28) a contractual employee, Abad's chance for promotion would be diminished. The same witness even admitted that he came across the appointment (Exhibit B) of the accused when the same was returned together with accused's personal data sheet (Exhibit A) and the position description form (Exhibit C). These documents were returned to the City Personnel Department by the Civil Service Commission, requiring the accused, as the proposed appointee, to submit the original of his Civil Service Eligibility (Professional). The City Personnel Department transmitted these documents to their office and he (Abad) got Exhibits A, B and C among the bunch of communications sent back to their office from the CSC. At the time he got them from the table, there was no one at the office, except him and the janitor and he did not notify their Chief about it. (Ibid., p. 29). Abad further testified that upon knowing about the accused's appointment, he lodged a complaint with the Tanodbayan, after he personally went to the Civil Service Commission and verified the accused's eligibility, successfully obtaining through misrepresentation, a Certification (Exhibit F) from the Civil Service Commission dated January 28, 1988, to the effect that the accused is only a "sub-professional eligible." Abad also admitted that when he went to the Civil Service Commission and asked to accomplish a form, and to accomplish his purpose ". . . he signed the latter's (accused) signature, since he would not be able to secure said certification without being authorized by the accused." (Exhibit E; Rollo, p. 30). Likewise, Abad testified that the accused was a contractual employee under a separate payroll, but when he was proposed for the position of Community Relation Officer, there was already a common payroll of Quezon City for the month of October 16 to 30, 1987, wherein they were all paid as CRO officers. (Rollo, p.30) Editha Isles, the second prosecution witness, has been a Record Officer 3, Chief of Division, Examination Records Service Division, since February 16, 1988. She declared that upon verification from the Master List for 1979 with respect to the Career Civil Service Examination given in December, the name of Alcantara did not appear therein, hence, the accused is not eligible as a career service professional, but the CSC records show that the accused took an examination on December 7, 1980, passing it with a rating of 70.36% as career service sub-professional. Further, she stated that the one qualified to inform the trial court as to the proper qualifications for appointment as Community Relation Officer is the Qualification Standard Division. Thus, Felicidad Tesoro, Chief Personnel Specialist of the Civil Service Commission was called to testify. She declared that she became the Personnel Specialist whose duties are to evaluate job description and qualification standards and conduct training in the local government units. As regards the qualification standard for the position of Community Relations Officer of the Office of the City Mayor, Quezon City, she declared that "they do not have the approved qualification standard for Quezon City. However, they have that for the National Power Corporation which was approved on August 1, 1989 . . . ." Although they have not conducted an audit with respect to the job description of Community Relations Officer in Quezon

City, it is believed that the qualification standards adopted by NPC should also be adopted for the Community Relation Officer in Quezon City. In the absence of any qualification standard, they just adopt those that are comparable to the same position. The Commission compares other positions which have similar job description, such as in the local government wherein they have a Community Development Officer. She also declared that a "Technical Assistant to the Mayor is quite different from a Community Relation Officer. The latter is a technical position in the sense that it deals with the community. As of the present, based on qualification index, she has not found any Community Relations Officer in the government." (Ibid., p. 32)

if there was security of tenure to the proposed appointment, he was not attracted to it because it was a demotion.

Accused Rodolfo Alcantara testified that on December 12, 1986, he entered into a Contract of Services between himself and the Quezon City government through the Office of the Mayor, represented by the Hon. Brigido R. Simon, Jr., some pertinent provisions of which follow:

As regards Exhibit E, which is request for certification of rating before the Civil Service Commission, accused denied that he had affixed the signature appearing therein as well as the other entries on the same form, nor did he ever authorize Abad to do so, including the preparation of Exhibit G, the request submitted by Abad to the Civil Service Commission signing the name of the accused in order to secure the certification of rating, Exhibit E above.(Ibid., p. 36)

That the City and the Second Party in consideration of mutual covenants made therein, enter into this contract of services whereby the CITY GOVERNMENT commissions the services of the SECOND PARTY as Management and Information System Officer under the Community Relations Office, OCM under the following terms and conditions: 1. That the CITY GOVERNMENT shall commission the services of the SECOND PARTY on a full time basis for a period of 01 January 1987 to December 31, 1987; (Exhibit 2-A) 2. That the SECOND PARTY shall well and faithfully serve the CITY GOVERNMENT and shall perform all such services connected therewith as directed by the Executive Assistant; 3. That for services to be rendered by the SECOND PARTY, the CITY GOVERNMENT shall grant an allowance to the SECOND PARTY in the amount of TWO THOUSAND EIGHT HUNDRED EIGHT & 30/100 (P2,808.30); payable 15th and 30th of every month; and 4. That this Contract shall be renewable upon agreement of both parties and may be terminated sooner upon prior advice of either party. The above contractual relation was renewable every three (3) months as testified to by the accused. He also testified that he first saw the Personal Data Sheet (Exhibit A), when he learned that Abad filed a case against him. However accused questioned the entries on Item No. 18, saying that he was not the one who filled up the questioned entries therein. With respect to his alleged appointment as Community Relations Officer (Exhibit B), accused averred that he had not come across the said document; insisted that he was never appointed as such and although he had knowledge that he was being recommended to the said position, his immediate supervisor, Mr. Tamayo did not inform him that he (accused) was being considered for the position in question; and he claimed that he was not interested because the salary to the position was lower by P1,000.00 plus a month, besides, even

He also denied having received the salary as Community Relations Officer, contrary to the assertion of the complainant Abad that he received his salary as CRO for the period of October 15 to 30, 1987, as evidence by Exhibits D and D-1. Accused also denied having filled up the entries after his signature on Exhibit C, which is the job description of the position as Community Relation Officer and when asked whether or not he signed the said document on July 15, 1987, he declared that the date is a later addition. (Rollo, p. 35)

Accused further testified that due to the falsification and misrepresentation of the complainant-witness in procuring his civil service rating, he lodged a complaint for forgery against Orlando Abad before the Regional Trial Court, evidenced by a subpoena which he marked as Exhibit 6 for the defense. (Ibid., p. 36) Abad, according to the accused is his subordinate and that he belonged to the Anti-Administration Association of Government Organizations. (Ibid., p. 37) A rebuttal witness, Felimon de la Rosa, Personnel Officer III of the Personnel Office, Quezon City Mayor's Office, testified that he has been the personnel officer in said office since April 1981. He declared that the words "Professional" and "July 1, 1987" in line No. 18 in Exhibits A and A-1 had both been typed in the original. (Ibid., p. 38) From the antecedent facts culled from the questioned decision of the Sandiganbayan, penned by Second Division Chairman, Justice Romeo M. Escareal, and concurred in by Associate Justices Jose S. Balajadia and Nathanael M. Grospe, it is obvious that the instant case arose due to jealousy and intrigue, resulting in vengeance by means of misrepresentation, falsification of signatures and documents and entries thereon. It is not understandable how the respondent court fell prey to a vindictive Orlando Abad, using precious time and resources of the judicial system of the land. That the case is doubtlessly the product of a sick mind is buttressed by the following testimonies and documentary evidence which the court a quo did not bother to evaluate before arriving at the conviction, based mainly on speculation, assumptions and baseless conclusions. Anent the testimony of Abad, the private complainant being the most aggrieved party for having been bypassed by the Quezon City government in the promotion to Community Relation Officer, he declared that: Subsequently, he came across the appointment (Exhibit B) of the accused when the same was returned together with the accused's personal data sheet (Exhibit A) and the position description form (Exhibit C). These documents were returned by the Civil Service Commission (CSC) to the City Personnel Department, requiring the accused, as the

proposed appointee, to submit the original of the Civil Service Eligibility (Professional). The City Personnel Department transmitted these documents to their office and he got Exhibits A, B and C among the bunch of communications sent back to their office from the CSC. At the time he got them from the table, there was no one at the office, except him and the janitor and did not notify their Chief about it. (Decision, p. 6, Rollo, p. 23) Thus, being in possession of the documents by stealing them from the Office where Alcantara and Abad are both assigned, the latter being motivated by hatred and envy for the accused for the proposed appointment as Community Relation Officer, Abad was truck with the idea sabotaging the appointment of Alcantara, his boss, and mortal enemy for the coveted position, went to the extent of getting hold of the true data regarding the civil service eligibility of the accused from the Civil Service Commission, and finding the opportunity to supply some words to the Personal Data Sheet of the accused, Abad filled up the blank with the wrong words or information, making it appear that the accused was the one who supplied said words such as "Professional" in Exhibit A and the date "July 1, 1987" on page 2 of the same document, and possibly even the Position Description listing the duties of the position of Community Relations Officer, Exhibit C. The above scenario is clearly illustrated by the following admission of the disgruntled complainant, Orlando Abad, as detailed in the questioned decision: When he (Abad) first came across the document marked as Exhibit A, the word "professional" in Item No. 18 was already there. The eligibility shown there was Civil Service Examination (Professional), taken in 1979 at the Ramon Magsaysay Elementary School with a rating of 80.70% plus. Said document bears the signature of accused with which he is familiar, being office-mates. Upon knowing about the accused's appointment, he lodged a complaint with the Tanodbayan. Furthermore, he went to the Civil Service Commission to verify the accused's eligibility, The Civil Service Commission issued a Certification, dated January 28, 1988, to the effect that the accused is only a "subprofessional eligible". In asking for the civil service eligibility of the accused, he (Abad) was made to accomplish a form (Exhibit E), wherein he signed the latter's (Alcantara) signature, since he (Abad) would not be able to secure said certification without being authorized by the accused. From the documents given to him by the CSC, he found out that the accused was not included in the list of those with Professional Eligibility. He inspected the document marked as Exhibit A, the personal data sheet and noticed that the word "professional" in Item No. 18 thereof, was a later addition in said document. Moreover, the rating of civil service eligibility of the accused in said document does not jibe with his sub-professional eligibility which is something like 77% . . . . (Ibid., p. 30) Undoubtedly, Abad was reeking with hate against Alcantara, so much so that he even presented and identified Exhibit D, alleged common payroll of Quezon City for October 16 to 30, (sic) 1987, which allegedly showed the salaries paid to the CRO officers. (Ibid., p. 30) If as claimed by Abad that accused Alcantara accepted the position, how come that the latter's salary payroll was not introduced in evidence commencing from the time he assumed the position? Besides, where is the oath of office of the accused when he left his contractual assignment and assumed the permanent appointment?

Besides, Abad admitted that when the documents (Exhibits A, B and C) were returned by the Civil Service Commission to the City Personnel Department of Quezon City, it was for the purpose of "requiring the accused, as the proposed appointee, to submit the original of his Civil Service Eligibility (Professional)." (Ibid., p. 29) Thus, under this situation, the appointment had not yet been approved, because the accused as proposed appointee had still something to comply with as required by the Civil Service Commission and pending this compliance which was aborted since Abad stole the documents, the proposed appointment did not materialize. Furthermore, why would Abad know what the Civil Service Commission requirement was, if he did not also get hold of the transmittal letter, which he did not introduce in evidence. Given this fact, the Sandiganbayan should have required the complainant-witness to produce the transmittal in order to substantiate his self-serving allegation, instead of ruling that the accused's defense was purely denial of the accusation against him. In this regard, the presumption that the withheld document when presented will be adverse to the case of the complainant, and therefore, both the prosecution and the respondent did not bother to have Abad produce the same. It is also intriguing how the Sandiganbayan took the testimony of the private complainant hook, line and sinker, when it is tainted from the beginning to end, with scheme and deceit driving Abad to steal the documents which he subsequently used in charging the accused of a crime that never was. Even the rebuttal witness Felimon de la Rosa, Personnel Officer III of the Personnel Office, Quezon City Mayor's Office, admitted that the words "Professional" in line No. 18 in Exhibits A and A-1 have both been typed in the original. (Ibid., p. 38) Not only this, the naked eye could clearly see that the typewriter used in inserting the word "Professional" and the date "July 1, 1987" on page 2 of the Personal Data Sheet, is different from the typewriter used in filling up the other information contained in the same document (Exhibit A), showing that they were insertions made on a different date. (Rollo, p. 55) Again, the respondent failed to honor the constitutional guarantee securing unto the accused the right to be convicted on the strength of the prosecution's evidence and not the weakness of the evidence of the defense. Sad to note, too, that the respondent court also failed to consider that the prosecution was not able to prove the elements of the charge of Falsification of Public Document as defined and penalized under Article 171 of the Revised Penal Code. In the case of People v. Guinto, this Court held, that: The principle has been dinned into the ears of the bench and the bar that in this jurisdiction, accusation is not synonymous with guilt. The accused is protected by the constitutional presumption of innocence which the prosecution must overcome with contrary proof beyond reasonable doubt. This Court has repeatedly declared that even if the defense is weak, the case against the accused must fail if the prosecution is even weaker, for the conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution. Indeed, if the prosecution has not sufficiently established the guilt of the accused, he has a right to be acquitted and released even if he presents naught a shred of evidence. . . . The accused-appellants have been condemned . . . based on uncertain evidence clearly insufficient to sustain their conviction. It is their guilt and not their innocence that has been presumed. It is their innocence and not their

guilt that should have been pronounced. In these circumstances, only one thing that has to be done if the Constitution is to be observed and justice is to be served." (184 SCRA 287)

concerning the lack of jurisdiction of the Sandiganbayan to try the alleged violation of Article 171 of the Revised Penal Code, this position is not tenable.

In retrospect, respondent court did not also heed the ruling (En Banc) of this Court in Fajelga v. Hon. Romeo M. Escareal, Hon. Conrado M. Molina and Hon. Ramon V. Jabson, Second Division, Sandiganbayan, (167 SCRA 350) wherein the essential elements of Falsification of Public Documents defined and penalized under Article 171 of the Revised Penal Code were enumerated and discussed as follows:

WHEREFORE, in view of the foregoing, the appealed decision promulgated on August 1, 1991 and the resolution of October 2, 1991, are REVERSED and the accused-appellant, Rodolfo Alcantara, is ACQUITTED.

Malicious intent or wrongful intent to injure a third person is an essential element for conviction, unless the document falsified is a public document in which case wrongful intent is not essential (People v. Po Giok To, 96 Phil. 917). Citing the case of People v. Quasha, in the Fajelga case above, this Court held:

Cruz, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., and Feliciano, JJ., concur in the result. Commenting on the above provisions, Justice Albert, in his well-known work on the Revised Penal Code (new edition, pp. 407-408), observes, on the authority of U.S. v. Reyes, (1 Phil. 341), that the perversion of truth in the narration of facts must be made with the wrongful intent of injuring a third person; and on the authority of U.S. v. Lopez (15 Phil. 515) the same author further maintains that even if such wrongful intent is proven, still the untruthful statement will not constitute the crime of falsification if there is no legal obligation on the part of the narrator to disclose the truth. Wrongful intent to injure a third person and obligation on the part of the narrator to disclose the truth are thus essential to a conviction for the crime of falsification under the above articles (sic) of the Revised Penal Code. . . . Besides, malicious intent to injure a third person is absent. In fact, neither the government nor any third person incurred any loss by reason of the "untruthful" narration. With respect to the second element of "abuse of office", it was further held by this Court in the same case, that "it is not enough that the falsification be committed by a public officer, it is also necessary that it was committed with abuse of his office, that is, in deeds, instruments, indentures, certificates, etc., in the execution of which, be participates by reason of his office." (Ibid., p. 351) Unfortunately, all the elements pointed out in the above case by this Court, have not been considered by the respondent Court, because Abad was not injured with an aborted appointment of the accused and the accused did not abuse his office, the documents claimed to have been the basis for the alleged crime of Falsification of Public Document, were not prepared for the purpose of securing the proposed appointment as accused was already a contractual worker in the Office of the City Mayor of Quezon City, with a valid contract up to December 31, 1987, which term may have been extended periodically as the parties see fit. On the other hand, the trumped up charge filed by a jealous co-worker, Orlando Abad, caused considerable damage to the government for wasting the government's time and manpower resources by entertaining farcical indictment as in this case. Thus, when the respondent Sandiganbayan failed to apply the aforestated doctrines in the instant case, it stands to reason that the accused should be acquitted, however, as regards the issue raised by the accused

8. G.R. No. 156183

February 28, 2007

NICASIO I. ALCANTARA, Petitioner vs. VICENTE C. PONCE and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION CORONA, J.:

filing of an information8 in court. Thereafter, the case was filed with the Regional Trial Court of Makati and raffled to Judge Tranquil Salvador of Branch 63. However, respondent Ponce filed a petition for review with the Secretary of Justice, who reversed the City Prosecutor in a resolution dated February 28, 2000. 9 This reversal was based on the finding that the newsletter was a privileged communication, having been submitted to the investigating prosecutor Benjamin R. Bautista as an intended annex to respondent’s sur-rejoinder. The Secretary of Justice thus directed the withdrawal of the information. Petitioner filed a motion for reconsideration10 but it was denied.11

This is a petition for review on certiorari1 from a decision2 and resolution3 of the Court of Appeals (CA). In 1997, respondent Vicente C. Ponce filed a string of criminal complaints against petitioner Nicasio I. Alcantara and his family, hereafter the Alcantaras, including one for estafa against petitioner in the Makati Prosecutor’s Office docketed as I.S. No. 97-39547. In essence, respondent Ponce alleged that petitioner had swindled him out of 3,000,000 shares of Floro Cement Corporation. It was in the course of the preliminary investigation of the complaint for estafa that respondent Ponce, shortly after giving his sur-rejoinder affidavit,4 submitted to the investigating prosecutor a newsletter5 purporting to be a belated annex to the affidavit. It was prefaced with the quotation "For every extraordinary fortune there is a great crime" and the text: An example is Marcos. We need not discuss this. Second example is the Alcantaras.

Petitioner elevated the matter via petition for certiorari to the CA where it was docketed as CA-G.R. SP No. 61543. In a decision dated August 29, 2002, the CA found that the Secretary of Justice committed grave abuse of discretion, set aside the latter’s resolution and directed the reinstatement of the criminal case.12 After unsuccessfully moving for reconsideration in the Department of Justice, respondent Ponce attempted to elevate the matter to the Supreme Court by way of a petition for review on certiorari. The case was docketed as G.R. No. 157105. However, we denied respondent Ponce’s motion for extension for time to file his petition13 as well as his subsequent motions for reconsideration. In the meantime, however, before CA-G.R. SP No. 61543 was decided, the Office of the Makati City Prosecutor, in deference to the resolution of the Justice Secretary, filed a motion to withdraw information, which the trial court granted on September 28, 2001. 14 The trial court ruled that the absence of the essential element of publicity precluded the commission of the crime of libel. Petitioner moved for reconsideration of the withdrawal but the trial court denied the motion in an order dated March 21, 2002. 15 On June 17, 2002, petitioner filed another petition for certiorari in the CA, docketed as CA-G.R. SP No. 71189. In this case, the CA rendered the assailed decision.

a) Overshipment of log; b) Land grabbing; c) Corruption of public office; d) Corporate grabbing. The newsletter then went on to discuss SEC Case No. 2507 which, in the sur-rejoinder affidavit, respondent Ponce described as being the forefather of all the cases he had filed against the Alcantaras. In SEC Case No. 2507 which the Securities and Exchange Commission en banc decided against him, Ponce accused the Alcantaras of defrauding him of his shares in Iligan Cement Corporation. On December 3, 1997, petitioner filed a complaint for libel against respondent Ponce with the Makati Prosecutor’s Office6 in connection with the aforesaid newsletter. He claimed that: (1) the statements therein were defamatory; (2) respondent had circulated it in the Makati Prosecutor’s Office and (3) the newsletter could not be considered an annex to the sur-rejoinder because respondent had not attached it to the said affidavit but had given it thereafter. The preliminary investigation was conducted by City Prosecutor Imelda P. Saulog.1awphi1.net On March 17, 1998, Prosecutor Saulog issued a resolution7 finding probable cause for libel and recommending the

The principal question for our consideration is whether or not the CA, in its decision in CA-G.R. SP No. 71189, gravely erred in finding that Judge Salvador had not committed grave abuse of discretion for granting the withdrawal of the information for libel against respondent Ponce. The crime of libel, as defined in Article 353 of the Revised Penal Code, 16 has the following elements: (1) imputation of a crime, vice or defect, real or imaginary, or any act, omission, condition, status or circumstance; (2) publicity or publication; (3) malice; (4) direction of such imputation at a natural or juridical person, or even a dead person and

(5) tendency to cause the dishonor, discredit or contempt of the person defamed. The factual antecedents are undisputed. The only issue is whether or not the controversial newsletter constituted privileged communication, which would exempt it from libel. According to the Special Fifth Division of the CA: It is a settled principle in this jurisdiction that statements made in the course of judicial proceedings are absolutely privileged. This absolute privilege remains regardless of the defamatory tenor and the presence of malice if the same are relevant, pertinent or material to the cause in hand or subject of the inquiry. The lone requirement imposed to maintain the cloak of absolute privilege is the test of relevancy. In this case, a reading of the Sur-Rejoinder Affidavit, contrary to petitioner’s submission, instantly shows that there was sufficient reference to the "newsletter" which justified the Justice Secretary and respondent Judge in holding that private respondent actually intended the said article to be included as an annex attached to said pleading and that the same was merely omitted and belatedly submitted to Prosecutor Bautista during the preliminary investigation. Such "sufficient reference" is shown by the fact that the newsletter is about SEC Case No. 2507 the very same case being discussed by private respondent in pages 8 to 12 of his Sur-Rejoinder Affidavit and hence, petitioner’s claim that Annex "F" mentioned together with Annex "E", both articles showing the "devious maneuvering" of petitioner in the said case, refers to another article. And even if the supposed Exhibit "F" could refer also to that article "So The Public May Know," such circumstance will not exclude the subject "newsletter" as an intended annex to the said pleading as in fact private respondent explicitly mentioned "articles" without stating that there were only two (2) particular articles being referred or which of those articles caused to be published by his counsel. As the Justice Secretary opined and which position the respondent Judge adopted, the "newsletter" containing the defamatory statement is relevant and pertinent to the criminal complaint for estafa then under preliminary investigation. The crime of estafa involves deceit, dishonesty and other fraudulent acts. The inclusion in the Sur-Rejoinder Affidavit of the "newsletter" discussing the alleged "corporate grabbing" by petitioner will tend to support private respondent’s case of estafa against petitioner insofar as such alleged "corporate grabbing" will highlight or manifest petitioner’s propensity for dishonest dealing or fraudulent machinations. There is therefore no doubt that the subject "newsletter" is relevant and pertinent to the criminal complaint for estafa, and hence the same comes within the protective cloak of absolutely privileged communications as to exempt private respondent from liability for libel or damages. In determining the issue of relevancy of statements made in judicial proceedings, courts have adopted a liberal attitude by resolving all doubts in favor of relevancy. Thus, in People vs. Aquino, our Supreme Court has emphasized that "it is the rule that what is relevant or pertinent should be liberally construed to favor the writer, and the words are not to be scrutinized with microscopic intensity. The doctrine of privileged communication has a practical purpose. xxx xxx xxx

Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. There is publication if the material is communicated to a third person. What is material is that a third person has read or heard the libelous statement, for "a man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself." Our Supreme Court has established the rule that when a public officer, in the discharge of his or her official duties, sends a communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication. Applying this rule by analogy to the present case, private respondent’s submission of the "newsletter" intended as an annex to his Sur-Rejoinder Affidavit in I.S. No. 97-39547 to Prosecutor Bautista who was then conducting the preliminary investigation in said case, does not amount to publication for the reason that the sending of such material was made specifically for the purpose of including the same as evidence in the preliminary investigation. That such submission was belatedly made does not take out the material from the absolutely privileged communication rule. Prosecutor Bautista had a legal duty to perform with respect to the subject communication, which is to consider the same along with the other evidence submitted by private respondent as complainant in I.S. no. 97-39547, in determining the existence of probable cause for the commission of the crime of estafa and that petitioner as accused-defendant therein should be tried for such offense.Under the circumstances and in the lawful exercise of private respondent’s right to present evidence in support of his accusations against petitioner in the criminal complaint for estafa, We fail to see how such submission of documentary evidence omitted from the annexes to the Sur-Rejoinder Affidavit, could amount to publication that would give rise to private respondent’s liability for a libel charge especially when there is no proof of the alleged circulation of copies of the subject "newsletter" except to the City Prosecutor’s Office of Makati wherein I.S. No. 97-39547 was then in the preliminary investigation stage. Petitioner’s feeble argument that Prosecutor Bautista remains a third person because the subject "newsletter" was never included or formally offered as evidence, hardly convinces Us to hold that there was actual publication for purpose of finding a prima facie case for libel against the private respondent. He must be reminded that the case for estafa was still at the preliminary investigation stage and there is no requirement of a "formal offer" of such documentary evidence or supporting documents to establish probable cause (citations omitted).17 Since the newsletter was presented during the preliminary investigation, it was vested with a privileged character. While Philippine law is silent on the question of whether the doctrine of absolute privilege extends to statements made in preliminary investigations or other proceedings preparatory to the actual trial, the U.S. case of Borg v. Boas18 makes a categorical declaration of the existence of such protection: It is hornbook learning that the actions and utterances in judicial proceedings so far as the actual participants therein are concerned and preliminary steps leading to judicial action of an official nature have been given absolute privilege. Of particular interest are proceedings leading up to prosecutions or attempted prosecutions for crime xxx [A] written charge or information filed with the prosecutor or the court is not libelous although proved to be false and unfounded. Furthermore, the information given to a prosecutor by a private person for the purpose of initiating a prosecution is protected by the same cloak of immunity and cannot be used as a basis for an action for defamation. (Emphasis ours) The ruling in Borg is persuasive in this jurisdiction. We see no reason why we should not adopt it.

Furthermore, the newsletter qualified as "a communication made bona fide upon any subject-matter in which the party communicating has an interest . . . made to a person having a corresponding interest or duty, although it contained [in]criminatory matter which without this privilege would be slanderous and actionable."19 While the doctrine of privileged communication can be abused, and its abuse can lead to great hardships, to allow libel suits to prosper strictly on this account will give rise to even greater hardships. The doctrine itself rests on public policy which looks to the free and unfettered administration of justice. 20 It is as a rule applied liberally.21 The one obstacle that those pleading the defense of privileged communication must hurdle is the test of relevancy. Under this test, a matter alleged in the course of the proceedings need not be in every case material to the issues presented but should be legitimately related to the issues or be so pertinent to the controversy that it may become the subject of inquiry in the course of trial. 22 Here, the controversial statements were made in the context of a criminal complaint against petitioner, albeit for other, separate acts involving greed and deceit, and were disclosed only to the official investigating the complaint. Liberally applying the privileged communication doctrine, these statements were still relevant to the complaint under investigation because, like the averments therein, they also involved petitioner’s alleged rapacity and deceitfulness. WHEREFORE, the instant petition is hereby DENIED and the September 13, 2002 decision and November 21, 2002 resolution of the Court of Appeals in CA-G.R. SP No. 71189 AFFIRMED. Costs against petitioner. SO ORDERED. RENATO C. CORONA Associate Justice

9. G.R. No. L-48088 July 31, 1978

(Sgd.) MARIANO CAPAYAS 3rd Asst. City Fiscal

GOTARDO FLORDELIS, petitioner, vs. HONORABLE EDGAR R. HIMALALOAN, as Acting City Judge, City Court of Tagbilaran, Branch 11; THE PEOPLE OF THE PHILIPPINES; and SULPICIO TINAMPAY, respondents.

APPROVED: (Sgd.) JOVENCIO S. ORCULLO City Fiscal (Pages 24-25, Record.) On February 13, 1978, petitioner filed a motion to quash this information on the two grounds already stated at the outset of this opinion. On even date, respondent judge denied the said motion to quash thus:

BARREDO, J.: Petition for certiorari and prohibition assailing the order of respondent judge denying petitioner's motion to quash a criminal information for perjury against him based on the grounds that (a) the facts charged therein do not constitute an offense and (b) the said information contains averments which constitute a defense. The information in question, which was filed with the City Court of Tagbilaran City, presided over by respondent judge, on January 13, 1978 reads as follows: The undersigned, 3rd Assistant City Fiscal, City of Tagbilaran, Philippines, hereby accuses Gotardo Flordelis of the crime of Perjury, committed as follows: That, on or about the 2nd day of July, 1977, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, moved by a desire to evade payment of a just debt and Attorneys' fees for legal services rendered, did then and there willfully, unlawfully and feloniously execute and sign a verified answer to the complaint of Atty. Sulpicio Tinampay and filed with the City Court of Tagbilaran City and which alleges, among other things, that the herein accused did not owe anything from Atty. Sulpicio Tinampay, much less, did he engage his legal services, when in truth and in fact, as said accused fully well knew, such statement on a material matter is false for the records would show that said accused had actually engaged the legal services of Atty. Sulpicio Tinampay in the cases of THE PEOPLE OF THE PHILIPPINES VS. GOTARDO FLORDELIS', docketed as Criminal Case No. 4639, for Usurpation of Official Function, and "THE PEOPLE OF THE PHILIPPINES VS. FERMIN O MAR, ET AL.", docketed as Criminal Case No. 4640, for Perjury; thus, said accused herein had in said manner willfully, unlawfully and feloniously made an untruthful statement in a narration of facts, thereby causing upon said Atty. Sulpicio Tinampay trouble and embarrassment, to his damage and prejudice in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Article 183 of the Revised Penal Code. City of Tagbilaran, Philippines, December 28, 1977.

ORDER The Court is not yet in the position to resolve the issues thus raised in the motion to quash filed by the accused thru counsel at this stage of the proceedings without allowing the People to present in Court the questioned pleadings as basis of the charge of perjury, otherwise, the Court would be denied of its right to scrutinize the evidence of the prosecution if the case will be quashed, and if also, the prosecution is not given a chance to present the questioned document or pleadings as evidence in Court. Thus, the issues adverted to in the motion to quash are all question of evidence which the Court cannot resolve without allowing the People to present first its evidence in Court. WHEREFORE, the motion to quash filed by the accused thru counsel should be denied, as it is hereby denied for being premature. Notify the prosecuting Fiscal and Atty. Amado R. Olis of this order accordingly. SO ORDERED. (Page 41, Record.) It is plain from even a cursory reading of the above-quoted information that the allegedly false statement attributed to the petitioner was made by him in "a verified answer to the complaint of Atty. Sulpicio Tinampay and filed with the City Court of Tagbilaran City". Without delving any further into the detailed circumstances of the proceeding in the City Court of Tagbilaran City referred to in the information and confining Our attention even only to the mention thereon of "a verified answer to a complaint — filed in the City Court", it is at once apparent that one element of the crime of perjury is absent in the charge as filed against petitioner, namely, that the sworn statement complained of must be required by law. (The Revised Penal Code by Justice Ramon C. Aquino, Vol. 111, 1976 ed., pp. 1062-1063.) The answer to a complaint in an ordinary civil action need not be under oath.

Moreover, it is likewise clear that any statement contained in an appropriate pleading filed in court that is relevant to the issues in the case to which it relates is absolutely privileged and it is the law that the same may not be made the subject of a criminal prosecution. (People vs. Aquino, 18 SCRA 555.) The assertion of respondent judge in his order in question that the prosecution should first be allowed to "present in court the questioned pleadings as basis of the charge of perjury" overlooks quite surprisingly that petitioner had attached to his motion to quash the complaint and the verified answer, and it is not claimed that the authenticity of any of them has been put in issue by the prosecution. Thus, further evidence to show (1) that those pleadings were filed in an ordinary action where there is no requirement that the answer to a complaint does not have to be verified and (2) the relevancy of the allegedly perjured statements and consequently their absolutely privileged character was superfluous. Actual presentation thereof at the formal trial could not have altered their legal import in the determination of whether or not under the facts alleged in the information petitioner could be convicted of perjury. On the issue of the propriety of certiorari and prohibition under the circumstances of this case, We only need to reiterate what We held in People vs. Ramos, L-25265, May 9, 1978 thus: As to the contention of respondents that the denial of a motion to quash is not a ground for certiorari and prohibition, suffice it to state that to allow an accused to undergo the ordeals of trial and conviction when the information or complaint against him is patently defective or the offense charged therein has an indisputably Shown to have already prescribed is unfair and unjust for which reason, procedurally, the ordinary remedy of appeal cannot be plain and adequate. (Page 69, Record.) WHEREFORE, the petition herein is granted and the respondent court is hereby ordered to dismiss the abovequoted information for perjury against petitioner in Criminal Case No. 918 of said court. No costs. Fernando (Chairman), Antonio, Aquino, Concepcion, Jr. and Santos, JJ., concur.

CRIM2 FINALS

One lady's Citizen watch valued at P600.00 P1350.00

10. G.R. No. 67973 October 29, 1992

3. Edgar Fulleros: One Seiko chronograph valued at P600.00

THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. CONRADO LAGMAY Y GARCES alias "JOJO GARCES", FERNANDO BAETIONG Y CAMPOPOS, and FRANCISCO PADULLANA, accused-appellants.

GUTIERREZ, JR. J.: A review of the decision of the Regional Trial Court of Quezon City, Branch LXXXIV is sought by appellants Conrado Lagmay Garces alias Jojo Garces and Francisco O. Padullana, who are among the three accused convicted of the crime of Robbery with Frustrated Homicide and sentenced to suffer the penalty of reclusion perpetua. The other accused, Fernando Baetiong y Campopos escaped from prison after the prosecution had rested its case and remains at large. The three accused were initially charged in two separate informations, namely: in Criminal Case No. Q15192 for Robbery with the Use of Force and Violence against Persons, and Criminal Case No. Q-15193 for Robbery and Frustrated Homicide. The two cases were jointly tried by the same court. In Criminal Case No. Q-15192, all three accused were acquitted. The information in Criminal Case No. Q-15193 alleged: That on or about the 20th day of July, 1980, in Quezon City, Philippines, the abovenamed accused, conspiring together, confederating with, and mutually helping one another, with intent of gain, with the use of force, violence and intimidation against persons, did, then and there willfully, unlawfully and feloniously, rob the following offended parties of their personal properties, to wit: 1. Adela Alfonso y Marquez: One Lady's wrist watch with calculator valued at P385.00 Ace Shoulder bag, valued at 40.00 P425.00 2. Maria L. Jesus: One college ring valued at P500.00 One gold ring with stone valued at P250.00

4. Victoriano Madrigal: Cash money representing his earnings as driver of the jeepney robbed (in different denominations) P180.00 5. Pat. Casiano Pedrana (should be Pedrano) Cash money in different denominations P14.00 One pistol, caliber .45 colt, SN No. 1638482 with seven rounds of ammunition Undermined amount in the following manner, to wit: the said accused, pursuant to their conspiracy, rode in a passenger jeepney driven by the offended party Victoriano Madrigal at Blumentritt Street, Manila bound for Novaliches, and when said passenger jeepney was near 11th Avenue, A. Bonifacio Street, this City, said accused brought out their unlicensed firearm and bladed weapons and told the passengers that it was a hold-up and threatened said passengers with death if they resisted or cried for help and thereafter with intent of gain, take, rob and carry away the personal properties of the offended parties mentioned above and when Pat. Casiano Pedrano resisted, said accused with intent to kill, stab (sic) him on different parts of his body and fired at him with their firearm thereby inflicting upon Pat. Casiano Pedrano serious and mortal wounds which could have produced his death were it not for the damage prejudice of offended parties in the aforesaid sum indicated above and in such other amount as may be awarded to them under the provisions of the Civil Code. (Rollo, pp. 6-7) After trial, the court rendered a conviction, the dispositive potion of which reads: In Criminal Case No. Q-15193, the court finds the accused Conrado Lagmay y Garces, Fernando Baetiong y Campopos and Francisco O. Padollana (should be Padullana) GUILTY as principals and beyond reasonable doubt of the crime of Robbery with Frustrated Homicide under Section 2, Article 294 of the Revised Penal Code with the attending aggravating circumstance of use of an unlicensed firearm and no attending mitigating circumstance and hereby sentences all three of them to suffer the penalty of life imprisonment (reclusion perpetua) together with all the accessories attendant thereto. Since the articles subject of the offense appear to have been recovered, no civil indemnity is imposed for the value thereof. However, they are sentenced to indemnify jointly and severally Pat. Casiano Pedrano in the amount of P36,000.00. Also, they are sentenced to pay jointly the costs of the proceedings. (Rollo, p. 10)

The evidence on which the conviction was based is summarized in the decision as follows: In Criminal Case No. Q-15193, the case for the prosecution was testified to by two of the passengers, Pat. Casiano Pedrano and Adela Alfonso. Pat. Casiano Pedrano is a member of the Manila Police Department. On July 20, 1980, at 11:30 o'clock p.m., he was abroad a passenger jeepney bound for Novaliches, Quezon City and was seated in the back at the right side. A hold-up was staged by three (3) persons whom he identified as the accused herein. The accused Baetiong stabbed him in the chest while the accused Lagmay shot him on the right and left thighs with a .22 caliber revolver. His service gun (Exh. "D"), his wallet (Exh. "E"), his badge (Exhs. "E-1"), his cash money consisting of two 2 5-peso bills (Exhs. "F" & "F-1") and two 2 2-peso bills (Exhs. "F-2" & "F-4"), and his shoulder bag (Exh. "G") were taken from him by the robbers. He was then dropped on the highway. He was brought to and treated at the MCUFDT Medical Foundation Hospital (Exh. "A") and incurred an expense of about P36,000.00. Adela Alfonso was a passenger of that same jeepney with her sister Lydia, cousin Maria Rosal de Jesus, and Restituto Rivera. As the jeepney traveled along, the man beside her was always pressing his body towards hers. Along A. Bonifacio St. near 11th Avenue in Quezon City, a passenger whom she identified as the accused Lagmay drew a gun announced: "This is a hold-up." There were three (3) robbers. Baetiong hit Rivera with a gun in the mouth while Lagmay slapped her. They took from her Casio calculator watch worth P385.00 and her bag worth P50.00. It was accused Lagmay who got the things from her. The accused Padollana was the one who took and collected the jewelries of the other passengers. Lagmay stood up and boxed her and by reason of the force of the blow, she fell from the jeepney. She suffered a dislocation in the right shoulder and was treated at the National Orthopedic Hospital (Exh. "C"). She was investigated by the police on the following morning and she gave a written statement (Exh. "B"). In addition to the foregoing, the prosecution presented the extrajudicial admissions of the accused Lagmay (Exhs. "H" & "H-1") and of accused Padollana (Exhs. "I" & "I-1") (Rollo, pp. 7-8) The accused interposed their respective defenses denying their alleged participation in the hold-up. Conrado Lagmay alleged that on July 20, 1980 at about 11:00 in the evening in Blumentritt Street, he was alone as he boarded a jeepney bound for Novaliches. Of all the passengers inside that jeepney, only Francisco Baetiong was known to him. He did not reach his destination because of a trouble that occurred while the vehicle was running in which Fernando Baetiong stabbed another male passenger for reasons he did not know. He jumped out from the back exit of the vehicle after that stabbing incident but was arrested by a security guard. He however admitted having blood on his clothes which he explained to have due to injury on his forearm caused by his jumping out and rolling on the ground. (TSN, April 19, 1983, pp. 7-8) He said that there was one female passenger who fell from the jeep but he did not come to her aid. He also said that he did not confront his co-accused Baetiong who insisted that it was he (Conrado Lagmay) who shot and wounded the latter on his right foot. (Ibid., p. 9) The accused likewise said that he did not know nor did he see Padullana.

Meanwhile, Francisco Padullana narrated that he is a provinciano who came from Tacloban. Leyte eleven (11) days before the alleged incident took place, to look for a job in Manila. He said that after being taught by his aunt on how to commute from his cousin's place in Tondo to Blumentritt, and from Blumentritt to his aunt's house in Caloocan, he took a jeepney alone on the night of June 20, 1980 from Blumentritt but failed to arrived at his destination. While the jeepney was running, he saw two men quarrelling with each other. He was later threatened by one of the men (referring to Fernando Baetiong) who pointed a bladed instrument at his (Padullana's) side, to go with him by a taxicab to a house of a friend or relative in Tondo. In that house, Baetiong ate and slept but Padullana did not. He did not leave that house because he did not know the way from there to his aunt's place in Caloocan. According to him, police officers arrested him and Fernando Baetiong in that house after some hours and held them for questioning. He said that despite his insistence that he was not involved in the hold-up, the police even mauled him and forced him to signed a statement. (TSN, May 24, 1983, pp. 7-13) Padullana said that he did not know his co-accused Conrado Lagmay (Ibid, 1983, p. 4) Finding the denials of the accused to be weak and not credible the trial court convicted all three of them. Only the accused Lagmay and Padullana appealed the decision to this Court and assigned the following errors: I THE TRIAL COURT ERRED IN FINDING THAT CONSPIRACY EXISTS IN THIS INSTANT CASE. II THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CONSTITUTIONAL RIGHTS OF THE APPELLANTS TO REMAIN SILENT AND TO COUNSEL DURING CUSTODIAL INVESTIGATION HAD BEEN VIOLATED. III THE COURT A QUO COMMITTED REVERSIBLE ERROR IN ADMITTING IN EVIDENCE THE EXTRA JUDICIAL CONFESSIONS OF THE ACCUSED WHICH WERE EXTRACTED THROUGH FORCE, DURESS, THREATS AND INTIMIDATION. IV THE TRIAL COURT ERRED IN FINDING THAT THE GUILTY OF APPELLANTS HAD BEEN ESTABLISHED BEYOND REASONABLE DOUBT. (Appellant's Brief, p. 1 in Rollo, p. 25) It is argued that there can be no conspiracy among the three accused in the present case because there was no proof that all three of them were known to each other and that there was no sufficient proof of a preconceived agreement to commit the robbery. The accused-appellants Lagmay and Padullana testified that they did not know each other and that they did not see each other inside the jeepney. They likewise admit that both of them knew Fernando Baetiong. Padullana, however, makes the qualification that he knew Baetiong only because he was threatened by the latter to go to a house in Tondo.

We emphasize that conspiracy which determines criminal culpability need not entail a close personal association or at least an acquaintance between or among the participants to a crime. Moreover, evidence of a previous agreement or plan to commit a crime is not essential to establish conspiracy. (People v. Maranion, 199 SCRA 421 [1991]; People v. Dionisio, 200 SCRA 207 [1991]) Conspiracy is established by evidence of unity of purpose at the time of the commission of the offense and unity in its execution. (People v. Bravante, 150 SCRA 569 [1987]; People v. Cantuba, 183 SCRA 289 [1990]) What is important is that in the performance of the specific acts necessary to achieve their goal, there was "such closeness and coordination that would indicate a common purpose or design." (People v. Petenia, 143 SCRA 361 [1986]; People v. Francisco, 182 SCRA 305 [1990]) In the present case, conspiracy was established by conclusive evidence. It was shown to exist as clearly as the commission of the crime itself. (De la Concepcion v. People, 173 SCRA 253 [1989]) There is evidence of participatory acts of each of the three accused. Contrary to what the counsel for the accused-appellants suggests, the Court finds that Padullana is not spared a finding of conspiracy since the evidence positively manifests the same intent on his part to take things against the will of the complainants and other passengers. The accused-appellant Padullana was found to have cooperated and given material aid in the consummation of the crime. The Solicitor General aptly describes the manner in which the crime was committed. a. As soon as accused Baetiong announced that they were staging a hold-up in the passenger jeepney on July 20, 1980, both he (referring to Baetiong) and accused-appellant Lagmay took turns in hitting victims Casiano Pedrano and Adela Alfonso who resisted in handing their valuables to the former (TSN, July 13, 1981, p. 2; TSN, August 26, 1981, p. 6). Once certain that the other jeepney passengers would provide no resistance for fear of their life and limb, accused-appellant Padolana took the jewelries of passengers Marylou de Jesus and Restituto Rivera (TSN, August 26, 1981, p. 7). His acts, if nothing else, indicate criminal intent to deprive others of their property in accordance with a common plan as agreed upon with his co-accused Baetiong and Lagmay." (Appellee's Brief, p. 15) The above observations are based on the testimonies of the prosecution witnesses. The appellant's counsel, however, asks us to believe that the prosecution witnesses testified on the lack of participation of accused-appellant Padullana. There is no basis for this opinion. The Court notes and views with disfavor the manner by which desired portions of the testimonies were lifted and the more important ones left out just to convince us that the prosecution in fact proved the innocence of Padullana. The witnesses Adela Alfonso and Pat. Casiano Pedrano who were victims of the crime at first answered in the negative in their respective direct examinations regarding the participation of Padullana, but after further questioning and more lucid differently and particularly attested to Padullana's presence and act of collecting the items with intent to rob the passengers. The testimony of each of the prosecution witnesses is shown to be characterized by candor that normally accompanies an unrehearsed and honest delivery of facts personally and vividly known to a witness. Minor discrepancies caused by the needed deeper reflection do not affect the veracity of a testimony for as long as

the fact of participation was duly established. The credibility of the witnesses are even reinforced. (People v. Lucille Sendon, G.R. No. 95903-05, June 8, 1992; People v. Bautista 147 SCRA 500 [1987]; People v. Alfredo Hoble y Leornardo, G.R. No. 96091, July 22, 1992) The pertinent portion of the testimony of Adela Alfonso, the victim who was slapped by accused-appellant Lagmay and who fell from the jeepney, is as follows: xxx

xxx

xxx

Q Now you said there were three persons involved in the robbery hold-up. You mentioned Fernando Baetiong, you identified Conrado Lagmay as the person who took your calculator, watch and shoulder bag. Now could you recognize that 3rd person if you see him again? A Yes, sir. (Witness pointing to Francisco Padollana) Q What did Francisco Padollana do? A He did not do anything. Q What was he doing all the while from the start that this Lagmay drew his gun, slapped and got your calculator and shoulder bag? A He was the one who got the jewelries of my companions. Q Who is that companions (sic) of yours? A (Witness pointing to Marylou de Jesus and Restituto Rivera) (TSN, August 26, 1981, p. 7; Emphasis supplied) Pat. Casiano Pedrano, the victim who was stabbed, shot and seriously wounded testified: Q How about the accused Francisco Padollana, did you observe if there was anything in his possession at that time? A There was none. Q While this robbery was going on what was Padollana doing? A (No answer) COURT: Do you want to impress to the Honorable Court that all the wound sustained in your body were inflicted by accused Baetiong? A Yes, sir. FISCAL: While you were being stabbed by Baetiong do you still recall what the other passengers were doing? A The other passengers cannot move because Padollana has a gun. (TSN, July 13, 1981, p. 3; Emphasis supplied)

It can be seen that the prosecution witnesses were able to positively identify Padullana as one of the three men responsible for the robbery. The mere presence of accused-appellant Padullana instilled fear among the passengers. Moreover, his act in collecting the personal belongings against the will of the owners makes him a co-conspirator to the unlawful taking of property. Hence, the allegations that he was a provinciano from Leyte who came here several days before the robbery took place to look for a job, and that he was forcible asked by accused Baetiong to go to a house in Tondo are mere denials which do not overturn the strength of the prosecution evidence.

Inasmuch as the prosecution did not established with absolute certainty the gravity or seriousness of the physical injuries suffered by Patrolman Pedrano, the Court deems it proper that the accused-appellants be held liable under Section 4, Article 294 of the Revised Penal Code which states: Art. 294. Robbery with violence against or intimidation of persons. Penalties — Any person guilty of robbery with the use of violence against or intimidation of any person shall offer:

The Court agrees with the argument of the Solicitor General that if indeed accused-appellant Padullana was forced against his will by the accused Baetiong to accompany him to a house in Tondo, why could he not devise a scheme to escape? (Appellee's Brief, p. 16; Rollo, p. 51) The second and third assigned errors refer to the propriety of the admission in evidence of the extrajudicial confessions (exhibits "H" and "I"; Original Records, pp. 208-211) of the two accusedappellants allegedly obtained in violation of the constitutional right to remain silent and to counsel, and by means of mauling and electrocution administered by policemen in civilian clothes. We agree with the appellants that the confessions taken without assistance of counsel should not have been considered by the trial court. However, the confessions are not necessary to support the judgment of conviction. The testimonies of the prosecution witnesses identifying the accused-appellants and linking them to the successful accomplishment of a common plan to rob the passengers of their valuables, constitute strong and convincing evidence to establish the guilt of the accused beyond reasonable doubt. The negative testimonies of the accused-appellants denying their participation cannot prevail over the positive testimonies of the prosecution witnesses. (People v. Joselito Villalobos and Roberto Villalobos, G.R. No. 71526, May 27, 1992) The prosecution witnesses related their first-hand account of the specific involvement of the three accused who, armed with a gun and a bladed knife, were able to overcome the resistance of the passengers to the extent of inflicting injuries, and successfully stashed away the things belonging to the victims. Since in a conspiracy, the act of one is the act of all, every one of the conspirators is equally guilty and must then suffer the same penalty prescribed by law. This, notwithstanding the different modes of participation of each one in the crime. (People v. Quinones, 183 SCRA 747 [1990]) However, the trial court erred in designating the crime committed as robbery with frustrated homicide, in applying Section 2, Article 294 of the Revised Penal Code, and in appreciating the use of an unlicensed firearm as an aggravating circumstance. There is no such crime as robbery with frustrated homicide.

xxx xxx xxx 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or . . . Section 4, Article 294 penalizes robbery, in the course of the execution of which, the offender shall have inflicted upon any person not responsible for the commission of robbery, serious physical injuries defined in paragraphs 3 and 4 of Article 263 of the same code. We note that the offense was committed under at least two (2) of the circumstances mentioned in Article 295. The robbery was consummated by attacking a moving motor vehicle such that the passengers thereof were taken by surprise. It was likewise committed along a street on the regular route taken by the passenger jeepney with the use of a firearm. According to Article 295, the offenders shall be punished by the maximum period of the prescribed penalty in Section 4, Article 294, or reclusion temporal in its medium period. WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modification that the accusedappellants Conrado Lagmay y Garces and Francisco O. Padullana are held guilty of the offense of robbery defined in Section 4, Article 294, in the course of the execution of which serious physical injuries enumerated in paragraphs 3 and 4 of Article 263 were inflicted and the circumstances mentioned in Article 295 were present. Applying the Indeterminate Sentence Law, the accused-appellants are sentenced to an indeterminate penalty of ten (10) years and one (1) day as minimum to seventeen (17) years and four (4) months as maximum. The accused-appellants shall likewise be credited in the service of their sentence with the full time of their preventive imprisonment provided that they previously agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; however, if they did not so abide, then they shall be credited with four-fifths of the time. SO ORDERED

Section 2 of Article 294 which penalizes robbery that is accompanied by rape or intentional mutilation, or on the occasion of or by reason of which any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted, is certainly not applicable to the present case. The records do not show any of such circumstances to be present.

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

11. G.R. No. 136012-16

September 26, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ULDARICO HONRA, JR., accused-appellant. DECISION GONZAGA-REYES, J.: This is an appeal from the decision,1 dated January 18, 1998, of the Regional Trial Court, Branch 52, of Sorsogon, finding accused-appellant Uldarico Honra, Jr. guilty of two counts of murder and three counts of rape with frustrated homicide and sentencing him as follows: "WHEREFORE, in the light of the foregoing, the Court finds Uldarico Honra, Jr. guilty beyond reasonable doubt in Criminal Cases Nos. 3333, 3338, 3341, 3342, and 3343 and hereby sentences him to two (2) counts of Reclusion Temporal in the maximum period of twenty years for the murders of Pacita and Rustico Jerao and three (3) counts of Reclusion Perpetua for the Rape with Frustrated Homicide of Jocelyn Jerao and to indemnify in solidum the heirs of Pacita and Rustico Jerao in the amount of P50,000.00 as indemnity for each case or total of P250,000.00 without subsidiary imprisonment in case of insolvency and to pay` the cost. In the service of his imprisonment his detention at the Sorsogon Provincial Jail shall be fully credited. SO ORDERED." Two informations for murder were filed against accused-appellant Uldarico Honra, Jr. along with three others, namely, Ronnie Gipaya, Cristobal Jintalan and Jose Jintalan for the deaths of Pacita Jerao and Rustico Jerao in the Regional Trial Court of Sorsogon, where the cases were docketed as Criminal Case Nos. 93-3333 and 93-3338. Except for the names of the victims, the informations uniformly alleged: Criminal Case No. 93-3333 "That on or about the 9th of May, 1993 at barangay Guinlajon, municipality of Sorsogon, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with guns and bolos, conspiring, confederating and mutually helping each other, with treachery and evident premeditation, did then and there, willfully, unlawfully and feloniously attack, assault and shot one Pacita Jerao,2 thereby inflicting upon the latter mortal wound which directly caused the death of said Pacita Jerao, to the damage and prejudice of her legal heirs." Contrary to law."3

The three informations for rape with frustrated homicide filed against the above-named accused before the same court were docketed as Criminal Case Nos. 93-3341, 93-3342 and 93-3343. The informations uniformly alleged: "That on or about the 9th day of May, 1993, at sitio Lantik, barangay Guinlajon, municipality of Sorsogon, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with guns and bolos, conspiring, confederating and mutually helping each other, did then and there, willfully, unlawfully and feloniously, by means of force, violence and/or intimidation have carnal knowledge of one Jocelyn Jerao, a fifteen year old girl against her will and consent and immediately thereafter, with intent to kill, attack, assault, and stab said Jocelyn Jerao, thereby inflicting upon her several serious injuries which could have caused her death, thus, accused performed all the acts of execution which would have produced the crime of Homicide, as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused, that is, because of the timely and able medical attendance rendered to said Jocelyn Jerao which prevented her death, to her damage and prejudice. Contrary to law."4 Upon arraignment on July 19, 1993, the four (4) accused, with the assistance of a counsel de oficio, entered pleas of not guilty in Criminal Case Nos. 93-33335 and 93-3343.6 On July 21, 1993, with the assistance of a counsel de oficio, the four (4) accused entered pleas of not guilty in Criminal Case Nos. 93-33387 and 933341.8 On August 25, 1993, accused-appellant Uldarico Honra, Jr., together with accused Cristobal Jintalan and Jose Jintalan, each pleaded not guilty to Criminal Case No.93-3342.9 On September 7, 1993, the trial court entered a plea of not guilty in favor of accused Ronnie Gipaya in Criminal Case No. 93-334210 on account of the fact that after entering a plea of guilty, he refused to sign the certificate of arraignment provided for the purpose. Joint trial of the cases thus ensued. However, on May 5, 1997, accused Ronnie Gipaya, with the assistance of Atty. Manuel Fortes, Jr., withdrew his plea of not guilty and upon rearraignment pleaded guilty to all the crimes charged against him.11 On September 26, 1997, accused Cristobal Jintalan, likewise withdrew his previous plea and entered pleas of guilty to all charges.12 The trial court then conducted a searching inquiry into the voluntariness and full comprehension of the consequences of their pleas. Meantime, all the charges against Jose Jintalan were dismissed after the trial court granted his demurrer to evidence. 13 Eventually, on October 8, 1997, the trial court rendered its judgment against accused Ronnie Gipaya and Cristobal Jintalan, finding them guilty beyond reasonable doubt in all the five (5) criminal cases. 14 Trial proceeded as to herein accused-appellant Uldarico Honra, Jr. Jocelyn Jerao, Dr. Marlon Gapayao and Dr. Liduvina Dorion testified for the prosecution. Jocelyn Jerao , a sixteen-year old third year high school student, testified that on May 9, 1993, while she was asleep with her parents, Pacita and Rustico Jerao in their house in the northern portion of Guinlajon, municipality of Sorsogon, somebody called for them at around 2 a.m. asking for water to drink but they did not open the door. Then she heard somebody fire a shot from a gun. Her parents opened the door and her mother gave the person outside the door water to drink. The person told her mother to drink first as he was

afraid that the water was poisoned. So her mother drank the water. The person outside the door introduced himself as Eric and assured her mother that she will not be harmed then asked permission to leave. But according to Jocelyn, he did not leave, but only went around the house because "they" returned. Thereupon they knocked on the door and told them that somebody wanted to see her father in the northern portion of their place. Her parents opened the door and she saw three people whom she did not yet recognize as they were wearing masks. She described their masks as t-shirts covering their faces. Her mother, father and herself went out of the house and the three of them stood side by side each other. The person who introduced himself as Eric told her father to go to the northern portion of the place but the latter refused. She stated that only Eric was wearing a mask while the two other companions were not. Then, Eric pointed the barrel of his gun to her father and squeezed the trigger but the gun did not go off. Eric then commented , "Jesus Christ, it’s good that it did not go off," and then laughed together with his two other companions. Eric took hold of the gun and squeezed it a second time and this time it went off hitting her father in the forehead. She shouted and tried to grab the gun from Eric but the latter boxed her twice. She then covered her father with her body. She heard another gun shot and saw her mother's body slumped on her father’s body. Before she heard the gunshot, she saw Eric still holding the gun which was pointed towards her mother. She testified further that the two companions helped Eric as when she started shouting the two tried to cover her mouth with their hands and to lift her up. The person who introduced himself as Eric removed his mask then raped her. She narrated that Eric removed his pants and removed her clothes including her panty and performed sexual intercourse on her. He lay on top of her then inserted his penis in her vagina and moved his buttocks up and down. She felt pain and pretended to be unconscious. The other two companions were standing guard by her side. After Eric performed the sexual act on her, the other companion removed his clothes and did the same thing to her. She identified the second person as the one who had a tattoo on his forehead and goes by the name Cristobal Jintalan. He also placed himself on top of her and performed the sexual act.1âwphi1 After he finished, the third companion took his turn. He also removed his pants and placed himself on top of her and did the same thing that Honra and Jintalan did. After this third companion was through with her, he took a very long "machite", but Eric shouted that he use a "luknit". Eric handed the luknit or bladed weapon to the third companion whom she later identified as Ronnie Gipaya. After Eric handed the latter the luknit, Ronnie Gipaya stabbed her on the stomach once. She turned to her side and she was stabbed three more times at her back. All this time, Eric and Cristobal Jinatalan did not leave. After Gipaya delivered the third blow he said, "Let’s go she is already dead." Then they left. Dr. Marlon Gapayao, a resident physician of the Sorsogon Provincial Hospital, testified that he examined Jocelyn Jerao and her mother Pacita Jerao. Dr. Gapayao confirmed the findings he made on the injuries of Jocelyn in a medical report. His findings revealed the following: "- Stab wound peri umbilical area penetrating abdominal cavity with moderate intra-abdominal bleeding; - Stab wound right chest penetrating thoracic cavity with intra thoracic bleeding moderate; - Multiple stab wounds back. - Alleged rape; positive for spermatozoa.

- Healing time barring complications - Three (3) weeks."15 Dr. Gapayao likewise confirmed the findings he made in his medical report on Pacita Jerao. The medical report stated as follows: "- Gun shot wound right supra clavicular (point of entry) with bullet lodged at the right thoracic cavity; - Stab wound left lumbar area non penetrating; - Stab wound supra umbilical area left penetrating abdominal cavity non perforating with moderate intra abdominal hemorrhage. Cause of death: -Hypovolemic shock scc. To multiple stab wounds and gun shot wound."16 Dr. Liduvina Dorion conducted the post mortem examination on Rustico Jerao. She testified that she found a single gunshot wound on the forehead of the victim.17 In the death certificate issued by the Office of the Civil Registrar, the cause of death was stated as intracranial hemorrhage caused by a gunshot wound.18 On the other hand, herein accused-appellant and his brother Jose Honra testified for the defense. Accused-appellant Uldarico Honra, Jr., a twenty-eight year old security guard denied participation in the crimes charged and offered an alibi as his defense. He testified that on May 9, 1993, at about 2 a.m., he was in the house of the barangay captain in barangay Casini, Irosin, Sorsogon. He testified that he was there to attend the birthday celebration of the barangay captain. He was there at 8 p.m. and stayed overnight in that place. He stated that this was on May 9, 1993 as this was the birthday of the barangay captain. He slept at one o’clock in the morning of May 9, 1993 on a bench because he was very drunk that night. The barangay captain was in the house with his family and the visitors already left. He woke up at 7 a.m. of the following day and returned home. He arrived home fifteen minutes later and ate his breakfast and took a bath. His brothers, nephews and nieces were home when he arrived. On May 10, 1993, at about 3 p.m., he heard on the radio that he was involved in a case and he went to the municipal building of Sorsogon to verify the matter. However, he found nothing there. The next day, on May 11, 1993 he went to the police station and was dumbfounded by the news relayed to him by a certain Major Uy that there was already a warrant for his arrest and a shoot to kill order against him. He also narrated that he was present when Jocelyn Jerao testified against him and that she did so only because she followed the statement of Gipaya. According to him, Ronnie Gipaya killed his mother and the former’s brother raped her sister. He stated further that this Ronnie Gipaya is the same co-accused in the criminal cases. According to him, Ronnie Gipaya implicated him in his statement as a means of avenging his mother’s death and his sister’s rape. He does not remember the date the statement was made but he was able to read the same which among others implicated him in the commission of the crimes.

Jose Honra, 17 years old, brother of accused-appellant recalled that on May 9, 1993, at about 2 a.m., his brother was sleeping in their home in Casini, Irosin, Sorsogon. They were then together with their sisters Soledad, Rosalina and her husband and the accused. According to him, no member of their family went out from the time they went to sleep at 9 p.m. up to early morning. He said that his brother, herein accusedappellant was still sleeping when he woke up at about 7 a.m. the following day.

"THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSEDAPPELLANT ULDARICO HONRA, JR. FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT."19

The trial court convicted accused-appellant of two counts of murder and three counts of rape with frustrated homicide. In upholding complainant’s testimony and rejecting accused-appellant’s alibi, the trial court ruled:

Accused-appellant’s argument that prosecution witness Jocelyn Jerao could have been mistaken as to the identity of her assailants and that she failed to establish his identity is not well-taken. According to accusedappellant, Jocelyn’s testimony is totally devoid of any narration as to when accused-appellant removed his mask during the rape; that it was not possible for Jocelyn to recognize accused-appellant as she testified that she pretended to be unconscious during the rape; and that the crime took place at 2 a.m. in an isolated place where there is no electricity making it impossible for her to recognize accused-appellant who was a total stranger to her. To support this stance, accused-appellant quotes the following portions of Jocelyn’s testimony as follows:

"There is no doubt in the mind of the Court that Uldarico Honra Jr. did the crimes as charged against him. The victim, Jocelyn Jerao, positively identified "Eric" whom she later identified as Uldarico Honra Jr. as the one who pulled the trigger that killed her parents, Pacita Jerao and Rustico Jerao. She was also able to recognize Ronnie Gipaya and Cristobal Jintalan as among those present during the killing of her father and mother. The victim recognized accused Uldarico Honra Jr. when the latter took off his mask when the latter raped her. With respect to the two others, Gipaya and Jintalan, the accused was able to recognize them thru their tattoo marks. The victim cannot be mistaken as it was then a bright night. The Court likewise finds that all the aforesaid accused, including Uldarico Honra Jr. thru force and without Jocelyn Jerao’s consent had carnal knowledge with her. The victim of these acts could not have imagined it as no young Filipina woman of decent repute could publicly admit that she had been criminally assaulted unless that it is the truth (People vs. Sambangan 125 SCRA 726). Conspiracy of accused Honra Jr. with the other accused in committing all the crimes charged against them was likewise shown in the prosecution’s witness testimony. Jocelyn Jerao testified that when Uldarico Honra Jr. was shooting her parents the two companions of Honra Jr., Ronnie Gipaya and Cristobal Jintalan covered her mouth to prevent her from shouting and likewise tried to lift her. That later on when she was about to be stabbed by Gipaya, Uldarico Honra Jr. advised Gipaya to use a luknit instead of a machete, who then stabbed her once in the stomach and thrice at her back. These acts show that there was unity of purpose and unity of the execution among the accused of their unlawful objectives which are the murders of the parents of Jocelyn and the rape with frustrated homicide of the latter. Anent Uldarico Honra Jr.’s defense of alibi, it cannot be sustained in the face of clear and positive identification of the accused (People vs. Gonzaga 77 SCRA 140). Likewise for alibi to be given merit the defense must prove it with probable evidence which would reasonably satisfy the Court of the truth of such defense (ibid). In the instant case, the Court finds the positive and clear identification by the victim herself of the three accused including Honra Jr. to be credible. The Court cannot believe the tale of accused that he was not present at the crime scene as his brother’s testimony that he (Honra Jr.) was sleeping at their sister’s house in Casini, Irosin, Sorsogon when the crimes occurred is materially inconsistent with the testimony of the accused himself that he slept at the house of their barangay captain in Casini, Irosin, Sorsogon after a drinking session celebrating the natal day of the said barangay captain. He could have presented the barangay captain to corroborate his testimony but was not able to." Hence, this appeal where accused-appellant ascribes the following sole error to the trial court:

The appeal is without merit.

"Q And when they returned, Madam Witness, what happened? A They knocked at the door and informed us that somebody wanted to see my father in the northern portion of our place. Q Did your parents open the door when they knocked at your door? A Yes, sir. Q You said "they", how many persons were you referring to who returned to your house the second time around? A Three (3). Q And were you able to recognize these 3 persons who returned to your house for the second time? A I did not yet recognize them because they were wearing mask. Q What kind of covering did they use as masks for covering their faces? A: Their t-shirts." (TSN, August 25, 1993, pp. 7-8; emphasis ours) xxx xxx xxx. "Q A moment. When Eric fired the first shot hitting your father, did you notice what (sic) were the two other companions? A They were also helping because at that time when I was already shouting they tried to cover my mouth with their hands. Q When you said "they", you were referring to the other two companions of Eric who were trying to cover your mouth?

A They were trying to lift me up. Q And one or both of them also tried to cover your mouth to prevent you from shouting? A Yes, your Honor. Q Were you able to identify who was that particular companion who tried to cover your mouth to prevent you from shouting?

A I did not recognize. Q What about the other companion of Eric who tried to lift you up or who helped in lifting you up, were you able to recognize him also? A I did not recognize his face." (Ibid, pp. 12-13; emphasis supplied) "Prosecutor: Q How did Eric rape you? A Eric removed my clothes and after removing my clothes, Eric performed the act of intercourse. Q How did Eric perform the act of intercourse?" xxx xxx xxx "Q Please answer. A He inserted his penis on my vagina and performed the act of sexual intercourse by moving up and down his buttocks. Court: Q You testified that the accused Uldarico Honra, Jr. removed your clothes. What about your panty, assuming that you have one, was it also removed by the said accused? A Yes, Your Honor. They also removed my panty and he also removed his pants. (to the prosecutor) Proceed. Prosecutor: Q After he removed his pants and your clothes as well as your panty, what else did he do? A He placed his body on top of me. Q And when his body was on top of you, what was he doing? A He was performing the act of sexual intercourse by moving his buttocks up and down. Q What else did you feel at that time when he was moving his buttocks up and down? A I felt pain. Q Did you try to react. . . Atty. Armes: Leading. Court: Sustained. Prosecutor: Q What did you do when you felt the pain? A I suffered the pain because they were thinking that I was unconscious. Q You pretended to be unconscious? Atty. Armes: Leading. Court: May answer. A Yes, sir. Prosecutor: Q During that time that Eric was having a sexual intercourse with you, what were his two other companions doing?

Q By the way, why did you pretend to be unconscious during that time? A I was acting unconscious during that time because I know that they already killed my mother and father and if I tried to resist them, I am sure they kill me. Q For how long did this Eric lay on top of you, in your estimate? A About 30 minutes. Q Then after Eric completed his sexual intercourse or act on you, what happened next? A He asked me this way; "Do you know me?" and I answered him back: "No" and he said: "I’m Alberto Jasmin." Q What was your condition during that time when you were answering him? A I was feeling weak. Q After that, Madam Witness, I mean after Eric performed his sexual act on you, what happened next? The other one who followed also removed his clothes and pants." (Id., pp. 20-23; emphasis supplied)."20 It is a legal truism that in criminal prosecutions, the State has the burden of proving the guilt of the accused beyond reasonable doubt. It has to prove the identity of the accused as the malefactor, as well as the fact of the commission of the crime for which he is alleged to be responsible. 21 However, we find that contrary to the assertions of accused-appellant, the prosecution did not fail to establish the onus on his identity. First. It is not true that Jocelyn’s testimony is devoid of any narration as to when accused-appellant took off his mask. On the witness stand, Jocelyn explained that while she did not initially recognize accusedappellant as he was wearing a mask, she recounted how she subsequently recognized accused-appellant when he removed his mask while he was raping her. Accused-appellant overlooked the following portions of Jocelyn’s testimony, to wit: Prosecutor: Q This Eric whom you said was the one responsible for shooting your father and mother, if you happen to see him again, will you be able to recognize him? A I know him.

A They were guarding me by my side.

Q Will you kindly look around and tell us if this Eric is now here inside the courtroom?

Q And seconds after the killing of your parents, you saw Eric removing his mask while raping you.

A He is here.

A Yes, Your Honor.

Q Please point to him.

(to Prosecutor)

(The one at the center, witness pointed to the man who identified himself as Uldarico Honra, Jr.)

Proceed.

xxx

xxx

x x x.

Prosecutor

Court:

Q Madam Witness, …

Q This person whom you pointed and who answered that his name is Uldarico, Jr., was he the same person whom you saw and heard introducing himself to your mother when he asked water as Eric? A Yes, Your Honor. Q And the very same person whom you personally saw pointing a gun to your mother and father and shooing each of them, (I am referring to Eric)? A Yes, your Honor. Q The same Uldarico Honra, Jr. whom you identified as the very Eric who introduced himself that night? A Yes, Your Honor."22

Court

xxx

xxx

x x x.

Court: A moment. Q You testified a while ago that while Eric whom you identified in Court as Uldarico Honra, Jr. was conversing with your mother and later pointing a gun at your mother and father, he was wearing mask and associate him with the accused in this case who answered to the name of Uldarico Honra, Jr.? A I recognized him when he was already raping me because he removed his mask. Q Are you in fact telling the Court that the killing of your mother and your being subjected to rape by said Eric took place on that same occasion and same night? A Yes, Your Honor. Q Which took place first, the act of killing your parents or your being raped? A The killing of my parents took place first.

Q And you are very certain that the person who was raping you and removed his mask and who identified himself before as Eric is the very person you pointed to in court is Uldarico Honra, Jr.? A Yes, Your Honor."23 Second. We likewise reject as purely speculative accused-appellant’s contention that Jocelyn could not have recognized her assailant as she pretended to be unconscious at the time. The truth of the matter of is, she only pretended to be unconscious out of fear for her life having already witnessed the brutal killing of her parents, and was in fact conscious and got a good look at the physical features of her assailant during the rape. At that point, Jocelyn as the victim, was as close to the accused as is physically possible, for a man and woman cannot be physically closer to each other than during sexual act. 24 Thus, it cannot be doubted that she could easily see and recognize the face of the man who was ravaging her. Moreover, the most natural reaction of victims of violence is to strive to see the appearance of the perpetrators of the crime and observe the manner in which the crime is being committed. 25 Third. While it may be true that the crime took place in a dark area, this does not prevent the identification of accused-appellant. As testified to by Jocelyn, she could not have been mistaken in the identification of accused-appellant as the night was illuminated by a bright moonlight. This Court has ruled that the light of the moon is sufficient for a person to identify another.26 All told, we see no reason to reject or doubt the identification made by Jocelyn of accused-appellant. Finally, the reliance being made by accused-appellant on the affidavit of Jocelyn in order to discredit her is likewise futile. According to accused-appellant, Jocelyn did not mention his name but only that of accused Ronnie Gipaya in her sworn statement taken on May 11, 1993. The Court has consistently ruled that discrepancies between the statement of an affiant in an affidavit and those made on the witness stand do not necessarily downgrade testimonial evidence. Ex parte affidavits are usually incomplete and frequently prepared by an administering officer and cast in the latter’s language and understanding of what the affiant

has said. Quite frequently, the affiant would simply sign the affidavit after it has been read to him or to her.27 After a thorough review of the records in the instant case, we see no reason to reverse the trial court’s factual finding and conclusion on the credibility of Jocelyn Jerao’s testimony; we are likewise unpersuaded by accused-appellant’s alibi. "Well-settled is the rule that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted."28 The testimony of Jocelyn on how she saw her parents brutally murdered and how she was defiled by three men one after the other was clear, direct and honest and could only inspire belief. We have held that when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified is not true.29 Jocelyn’s credibility is enhanced considering that she has no motive to testify against accused-appellant and there is absolutely no evidence on record which can even remotely suggest that she could have been actuated by any motive.30 On the contrary, we note that accused-appellant’s alibi is uncorroborated by the only other defense witness, accused-appellant’s brother. It was not clearly established where he actually was at the time of the commission of the crimes at 2 a.m. of May 9, 1993. He said he was at the barangay captain’s house sleeping, as he was drunk the night before celebrating the barangay captain’s birthday. However, his bother testified that accused-appellant was in their home sleeping on the night in question. Alibi is inherently weak and certainly insufficient to outweigh Jocelyn’s positive and categorical assertions on the commission of the crimes. The contradictory statements of accused-appellant and his brother further add to the dubiety and weakness of his defense. Moreover, whether he spent the night at the barangay captain’s home or in their own home, accused-appellant has not shown the physical impossibility of his presence at the place and time of the commission of the crime. "The proffered defense of alibi cannot be sustained where it is not only without credible corroboration but it also does not on its face demonstrate the physical impossibility of the accused’s presence at the place of the crime or in its immediate vicinity at the time of its commission." 31 In the instant case, accused-appellant could not offer a corroborated and coherent alibi; and he has not shown that it was not possible for him to go to Jocelyn’s house from the barangay captain’s house. We now review the other aspects of accused-appellant’s conviction in keeping with the Court’s duty, as an appellate tribunal, to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.32 In Criminal Case Nos. 93-33333 and 93-3338, accused-appellant was convicted of the murders of Pacita Jerao and Rustico Jerao. The killings were properly classified as murder upon the existence of treachery33 as alleged in the information. There is treachery where the attack upon the unarmed victim, who had not committed the slightest provocation, and who were totally unaware of the murderous designs of the

accused, was swift and unexpected.34Pacita and Rustico were unarmed, defenseless and helpless, and had absolutely no opportunity to defend themselves from accused-appellant’s sudden and unexpected assault with the use of a gun. Evident premeditation which was also alleged in the information cannot be appreciated in the absence of direct evidence of the planning and preparation to kill when the plan was conceived.35 Under Article 64 of the Revised Penal Code, when the penalties prescribed by law contain three periods, the penalty in its medium period shall be imposed when there are neither aggravating nor mitigating circumstances present. Under Article 248 of the Revised Penal Code 36 , the penalty for murder is reclusion temporal in its maximum period to death, the medium period of which is reclusion perpetua.37 Hence, accused-appellant should suffer the penalty of reclusion perpetua for each count of murder. We affirm the award of P50,000.00 for each count as indemnity for death to the heirs of the two victims in conformity with prevailing jurisprudence.38 We cannot award actual damages absent proof of actual losses suffered. However, the award of P50,000.00 as moral damages is in order considering that Jocelyn Jerao testified on her own anguish suffered as a result of the death of her parents.39 Absent any aggravating circumstance attending the murders committed, we cannot award exemplary damages pursuant to Article 2230 of the New Civil Code. In Criminal Case Nos. 93-3341, 93-3342 and 93-3343, the prosecution charged accused-appellant with "rape with frustrated homicide" and the trial court convicted him of three counts thereof. The case is wrongly denominated as there is no complex crime of "rape with frustrated homicide". Article 48 of the Revised Penal Code40 requires the commission of at least two crimes, but the two or more grave or less grave felonies must be the result of a single act, or an offense must be a necessary means for committing the other.41 Negatively put, when two or more crimes are committed but (1) not by a single act or (2) one is not a necessary means for committing the others, there is no complex crime. In the instant case, accusedappellant committed separate crimes of rape and frustrated homicide. They do not constitute a complex crime of "rape with frustrated homicide." Neither does this case fall under Article 335 of The Revised Penal Code which provides for a special complex crime of rape with homicide. Pertinent portion of Article 335 reads: xxx

xxx

x x x.

"When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall likewise be death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death." Clearly, the law does not contemplate consummated rape with frustrated homicide as in the instant case. Nevertheless, while the three informations were captioned "rape with frustrated homicide" and alleged the elements of said crimes, it should be noted that the defense did not object to the information despite its imperfection. The defect of charging two offenses in one information, that is, rape and frustrated homicide, was deemed waived by accused-appellant’s failure to raise it in a motion to quash before he pleaded to the information.42 Hence, conviction for three separate counts of rape and three counts of frustrated homicide may lie.

Conviction for rape must be sustained considering that all the elements of rape under Article 335(1) of the Revised Penal Code were established beyond reasonable doubt. The accused had carnal knowledge of Jocelyn; and that coitus was done through the use of force and intimidation.43 Failure to shout or offer resistance did not make voluntary Jocelyn’s submission to the criminal acts of the accused. 44 Jocelyn pretended to be unconscious during the rape as she was subdued and cowed to submit in fear, having just witnessed the killing of her parents in the hands of her assailants. The use of deadly weapons (guns and bolos) as alleged in the information could not be appreciated as a qualifying circumstance absent evidence that the same were used to realize the crime of rape against Jocelyn. Conviction for frustrated homicide must likewise be sustained considering that the accused intended to kill the victim as shown by the weapon used and the parts of the victim’s body at which the weapon was aimed, as shown by the wounds inflicted. In fact, there is testimony to the effect that the accused left Jocelyn for dead. In fine, the accused performed all the acts of execution which could have produced the felony as a consequence, but did not on account of timely and adequate medical intervention.

the penalty of reclusion perpetua for each count; in Criminal Case Nos. 93-3341, 93-3342 and 93-3343, accused-appellant is found guilty of three counts of rape and is sentenced to suffer the penalty of reclusion perpetua for each count; accused-appellant is also found guilty of three counts of frustrated homicide and sentenced to suffer the indeterminate penalty of 4 years and 2 months of prision correccional as minimum up to 10 years of prision mayoras maximum for each count. In addition, accused-appellant Uldarico Honra, Jr. is ordered to PAY the following sums: (a) P100,000.00 to the heirs of Pacita and Rustico Jerao, as death indemnity; (b) P100,000.00 to the heirs of Pacita and Rustico Jerao as moral damages; (c) P150,000.00 to Jocelyn Jerao as civil indemnity;

Accused-appellant is liable for three counts of rape and three counts of frustrated homicide on account of a clear conspiracy among the three accused shown by their obvious concerted efforts to perpetrate, one after the other the crime of rape, and then the crime of homicide. Conspiracy was properly appreciated by the trial court because the individual acts of the accused when taken together as a whole showed that they were acting in concert and cooperating to achieve the same unlawful objective. 45 While accused-appellant was shooting Jocelyn’s parents, his co-accused were covering the latter’s mouth and lifting her up. While they took turns defiling her, the others stood guard. It has been held that in multiple rape, each of the defendants is responsible not only for the rape committed by him but also for those committed by the others.46 Accused-appellant, therefore, is responsible not only for the rape committed personally by him but also for the rape committed by the others as well.47 In the same vein, he is liable for three counts of frustrated homicide. In a conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim.48 Accused-appellant ordered which weapon to use and handed the same to a co-accused who delivered the stab wounds on Jocelyn which could have resulted in her death if not for immediate medical intervention. This is a clear manifestation of a common purpose or design as well as concerted action on their part to kill. Finding accused-appellant guilty beyond reasonable doubt of three counts of rape, this Court imposes upon him the penalty of reclusion perpetua for each count. Latest jurisprudence awards the victim in a rape case the minimum amount of P50,000.00 as moral damages. Moral damages may be awarded to the victim without need for pleading or proof of the basis thereof. 49 Accused-appellant is also ordered to pay Jocelyn the amount of P50,000.00 as civil indemnity for each count of rape. Civil indemnity is mandatory upon a finding of the fact of rape.50 Finding accused-appellant guilty beyond reasonable doubt of three counts of frustrated homicide, this Court imposes upon him the indeterminate penalty of 4 years and 2 months of prision correccional as minimum up to 10 years of prision mayor as maximum. WHEREFORE, in the light of the foregoing, accused-appellant Uldarico Honra, Jr. is found guilty of two counts of murder in Criminal Case Nos. 93-3333 and 93-3338 and is correspondingly sentenced to suffer

(d) P150,000.00 to Jocelyn Jerao as moral damages. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

12. G.R. No. 104285-86 May 21, 1993

The complaint and information were raffled off to two (2) different branches of the Manila RTC.3 Appellant Angeles entered a plea of not guilty to the complaint of rape before the Manila RTC, Branch 5, on 19 July 1989.4 A few months earlier, he had pleaded not guilty to the information for robbery before Branch 25 of the Manila RTC on 10 April 1989.5

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTOR ANGELES Y RAMOS, accused-appellant.

In an order dated 13 April 1989, Judge Felix B. Mintu of Branch 5, Manila RTC, upon the ground that the two (2) criminal cases were "intimately related," ordered that Criminal Case No. 89-70692 (the robbery case) be consolidated for joint trial with the lower numbered case (the rape case) then pending before his sala.6

The Solicitor General for plaintiff-appellee. Reynaldo Y. Sarmiento for accused-appellant.

Earlier, on 12 April 1989, Angeles filed a motion to quash the rape complaint in Criminal Case No. 8970961, upon the ground that the offense there charged was "the same offense" for which he had been arraigned just two (2) days earlier before Branch 25 of the Manila RTC in Criminal Case No. 89-70962, and that he would be exposed to "double jeopardy" if he were arraigned anew in Criminal Case No. 8970961.7

FELICIANO, J.: Victor Angeles appeals from a decision of the Regional Trial Court ("RTC") of Manila, Branch 25, convicting him of two (2) separate offenses: one of rape and the other of robbery against Analie Baltazar. Angeles was charged with rape in a complaint filed by Analie Baltazar dated 28 February 1989; he was also accused of robbery in an inhabited place in an information filed by Assistant Prosecutor Eufrocino A. Sulla, also dated 28 February 1989. These two (2) documents read as follows: That on or about February 24, 1989, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously, by means of force, violence and intimidation, to wit: by poking an ice pick against her person, dragging her outside the house and bringing her to the Three Bird Lodge located at Sales St., Sta. Cruz, in said City, threatening to kill her should she resist and accused succeed (sic) in having carnal knowledge of the undersigned complainant, against her will and consent. 1 xxx xxx xxx That on or about February 24, 1989, in the City of Manila, Philippines, the said accused, conspiring and confederating with two others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there, wilfully, unlawfully and feloniously break into and enter House No. 652 (along) Algeciras St., Sampaloc, in said City, which was then occupied as a dwelling place of one ANALIE BALTAZAR Y CORDON and other members of her family, by destroying the screen of the door of the said house and by passing through the said door, and once inside, with intent of gain and without the knowledge and consent of the owner thereof, took, robbed and carried away one (1) Betamax Sony valued at P10,500.00 and one Typewriter Merit valued at P5,000.00, or all valued at P15,500.00, belonging to said Analie Baltazar y Cordon to the damage and prejudice of said owner in the aforesaid sum of P15,500.00, Philippine currency.2

After hearing, Judge Mintu denied the motion to quash holding that two (2) distinct crimes of rape and of robbery were alleged to have been committed by appellant.8 Appellant moved for reconsideration of that order, without success. After joint trial of the rape and robbery cases, appellant was found guilty of both offenses in a decision dated 7 March 1991 of the Manila RTC, the dispositive portion of which states: WHEREFORE, the prosecution having proven the guilt of the accused VICTOR ANGELES Y RAMOS beyond reasonable doubt on both cases, sentences him to suffer the penalty of: Criminal Case No. 89-70961, Rape LIFE IMPRISONMENT and pay as damages complainant ANALIE BALTAZAR Y CORDON the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH COST; Criminal Case No. 89-70962, Robbery LIFE IMPRISONMENT, the stolen articles being not recovered, to pay as damages complainant ANALIE BALTAZAR Y CORDON the sum of FIFTEEN THOUSAND PESOS (P15,000.00) PESOS; WITH COST. 9 The basic facts as found and set out by the trial court in its decision are as follows: Analie Baltazar testified that on or about 1:30 in the morning of February 24, 1989, while she was sleeping at the sala of the second floor of their house in Ageceria (sic) Street, Sampaloc, Manila, she woke up to urinate. When she stood up, a person behind held and poked an icepick on her neck. According to her, she begged not to be killed; that she was dragged towards the rear door of their house. Aside from the person who dragged her, she also saw two persons on the ground floor carrying their typewriter and Sony Super

betamax. The typewriter, according to her cost about P10,000.00 to P11,000.00. She was dragged by the man at the railroad track towards Fermesa Street, (then) to de la Fuente Street, where she was made to board the (sic) taxi and brought to Dakota (St.) at Recto Avenue. That while she was being dragged by the person, whom she later identified as the accused Victor Angeles, the two other companions of the accused were on (sic) their back. According to her, the two persons placed themselves on (sic) a dark place and she was told not to shout. That everytime she talked with a loud voice, she was being (sic) slapped. Later, the two companions of the accused left. Accused Angeles, while still poking the ice pick on her neck, covered by the blanket she was carrying then, brought her to the Three Bird Lodge Motel, a few steps from Dakota Recto going towards Evangelista Street, Quiapo, Manila. At the Three Bird Lodge, accused Angeles talked with the roomboy while at that time the ice pick was still poked at her. She was brought to a room, where accused removed her t-shirt, short and underwear. Later, she was made to lie down on the bed and the accused removed also (sic) his clothes. The room, according to her, was well-lighted. The accused, after removing his clothes, started to kiss her on her neck, to her bust and her private parts. That the accused forced his penis to enter her private parts. That the penis, according to her, penetrated lightly on her private parts and thereafter, she was told to dress up and let (sic) her go home. The following day, the accused was again seen in complainant Analie's neighborhood. The accused, according to her, was even rubbing his shoes on the ground and looking at the direction of their house. She immediately informed her father about the presence of the accused. Her father, according to her, immediately went to the place where then accused was, but accused has (sic) already left and thus, was able that time to escape the wrath of her father. On February 26, 1989, at about 10:00 o'clock in the morning, again (sic), complainant Analie saw the accused in front of their house. She immediately pointed the accused to her father, who in turn went down the house and confronted the accused. While talking, her father gave the accused a fist blow and the people in the neighborhood chased the accused. After a brief chase, the accused was apprehended and mauled by her neighbors. Later, the accused was brought to the police station and charged for the present crime. Dr. Marcial Cenido, Medico-Legal Officer, Western Police District, testified that he made a physical and genital examination on the person of Analie Baltazar y Cordon, thru the request of Lt. Generoso Javier, Western Police District, and found her hymen with deep healing laceration at 6:00 o'clock position extending to the base at the forchette right of midline and slightly bled upon examination, Exhibit "3" (sic). Its cause, according to him, was entry of a penis inside it.10 Appellant submitted a different story to the trial court, which summed up his story in the following terms: Accused Victor Angeles denied emphatically the accusation against him. According to him, on February 23, 1989, at 9:00 in the evening, he was at his house asleep. he woke up at 6:30 in the morning of February 24, 1989. On said date, he was with his mother Isabel

Ramos. The mother of the accused, Isabel Ramos Angeles, collaborated (sic) the testimony of the accused that on the night of February 24, 1989, the accused was in his house asleep. He claimed that on February 26, 1989, he was looking for Ree, a fellow electrician near complainant Analie's house. After a brief talk with Analie's father, about the robbery being committed in the neighborhood, the people in the neighborhood suddenly attacked him. He ran away, but after a brief chase, was apprehended, and mauled and later brought to the police precinct. Later, he was examined by Dr. Marcial Cenido, WPD Medico Legal Officer. Dr. Cenido admitted having examined the accused, but aside from having found scally wounds on the person of the accused, he did not elaborate on any injury suffered by the accused.11 In this appeal, Victor Angeles claims that: 1. The trial court erred in not holding that the arraignment of the accused-appellant in Criminal case No. 89-70962, for robbery, bars the second prosecution of the same accused-appellant in Criminal Case No. 89-70961, for rape. 2. The trial court erred in not holding that the testimony of the accused-appellant is more credible and logical than the testimony of Analie Baltazar. 3. The trial court erred in not acquitting the accusedappellant.12 Two (2) principal issues are posed for the Court's consideration in this case: firstly, whether or not the trial court erred in holding that two (2) separate felonies of robbery and rape had been committed by appellant; and secondly, whether the trial court had erred in believing the testimony of Analie Baltazar to the effect that appellant Angeles had raped her. In respect of the first issue, we note preliminarily that appellant's argument that the prosecution for rape was barred by appellant's prosecution and arraignment for robbery, under the doctrine of "double jeopardy," is bereft of merit. That doctrine, in general, prohibits a second prosecution for the same offense as that charged in the first prosecution. In the case at bar, robbery and rape cannot properly be considered the same offense; neither is one included in the other. What appellant was apparently trying to say was that he was properly chargeable, not for two (2) separate offenses of robbery and rape, but rather of the special complex crime of "robbery with rape." In other words, appellant was probably trying to say that the charge for robbery should have been a charge for "robbery with rape" such that separate complaint for rape was, at least partially, a duplication of the first charge. Thus, the real issue is whether he was properly charged with and found guilty of two (2) separate offenses, or whether he should have been charged instead with "robbery with rape." In either case, of course, the prosecution must show the presence of all the elements of the crime of robbery, as well as all the elements of the crime of rape. This issue, however, is not an entirely academic one. In its practical consequences, it relates to whether only one penalty should have been imposed upon appellant under Article 294, paragraph 2 of the Revised Penal Code; or whether two (2) penalties are appropriately imposable upon appellant, one for robbery in an

inhabited house under Article 299 of the Revised Penal Code and another for rape under Article 335 of the Revised Penal Code as amended. Appellant contends that the case at bar is controlled by U.S. v. Tiongco,13 where the Court held that the offense committed was the special complex crime of robbery with rape. Appellant cites the following passages from U.S. v. Tiongco : xxx xxx xxx After the robbers had seized such things as they wished to carry off and when ready to go out, they took the three women below blindfolded. The band then headed fro the river near by to embark in the banca in which they had come. When they left the house, Cristeto Ledesma and Narciso Castano compelled two of the women, Juaneza and Eusula, to accompany them, and while the band was on its way to the banca these two men separated from the rest, took these two women with them to a place near a marsh not far from the river bank, and there raped them, employing force and intimidation to accomplish their purpose. Cristeto Ledesma raped Rosario Juaneza, and Narciso Castano, Nieves Eusula, after which Cristeto and Narciso went to the banca, where the other robbers were waiting for them, and all left. xxx xxx xxx As the crime of the robbery, with that of rape of said two women — a crime against chastity committed on the occasion of the robbery — was perpetrated by the malefactors in the said house of Catalino Balinon, both crimes should be punished as one single complex crime, as defined and qualified by paragraph 2 of article 503 of the Penal Code; for, besides the robbers seizing the money and the other effects they found in said house, two of them sullied the honor of the two women therein, and the companions of the two men who committed the rape made no opposition nor prevented these latter from consummating this other crime, apparently unconnected with and unrelated to that robbery, but which, as well as sanguinary crimes, is often committed on such occasions, and it is for this reason that the penal law, in odium of such offenses against property and chastity, has considered them complex and punished them by one single penalty.14 (Emphasis supplied) Close examination of the facts in Tiongco and of the facts in the case at bar lead us to believe that Tiongco does not control the case at bar. In the case at bar, the robbery carried out in the house where Analie Baltazar and her parents lived was consummated and completed; the taking of the goods from the house was completed and the three (3) robbers (including appellant Angeles) walked from Algeciras Street, Sampaloc, down the railroad track towards Fermesa street and then to Dela Fuente Street where they boarded a taxi which brought them to Recto Avenue. At Recto Avenue, the three (3) men and the victim Analie Baltazar got off the taxi and the two (2) co-felons of Angeles left and went their own way while appellant Angeles proceeded to a motel located in Dakota Street not far away from recto Avenue in the direction of Quiapo District.15 The acts constitutive of the robbery at the house of the Baltazars and the acts

comprising the rape inflicted upon Analie Baltazar were separated both by time and space. The conspiracy between the three (3) malefactors clearly covering the robbery had come to an end with the departure of two (2) of the conspirators. The rape was carried out after the completion of the robbery and after the break up of the malefactors. The situs of the rape was far away from the situs of the robbery. We believe and so hold that under the circumstances of this case, appellant Angeles was properly charged with two (2) distinct offenses of robbery and of rape, rather than with the special complex crime of robbery with rape under Article 294, paragraph 2 of the Revised Penal Code. Conceptually, the robbery had not been "accompanied by rape," neither was the rape committed "by reason or on [the] occasion of such robbery;" rather, the robbery and the rape were committed successively or in sequence. Appellant's next contention is that in respect of the conviction of rape, the trial court erred in finding Analie Baltazar to be a credible witness and that the trial court had misapprehended two (2) important facts of record which indicated that her testimony was incredible in itself. The two (2) facts submitted by appellant are: firstly, at the motel, Analie had failed to make an outcry which could have attracted intervention on the part of the roomboy; and secondly, Analie's declaration that appellant Angeles had returned to the vicinity of her family home a few hours after the robbery, at day break of 24 February 1989, was "highly suspicious" and improbable for then appellant would have been risking discovery, denunciation and arrest which in fact eventually came about.16 Once more, the Court is not persuaded. Private complainant's failure to scream for help or otherwise make an outcry must be evaluated in the context of all the surrounding circumstances of this case. When Analie woke up at her house after midnight to go to the bathroom, appellant grabbed hold of her and her sleeping blanket and threatened her with an ice pick on her neck. She was dragged from her family home, across the railroad tracks and across several streets by the appellant and his two (2) companions. Inside the taxi that the group boarded, Analie was put bedside the driver, with appellant's arm on her shoulder while appellant and the other two (2) malefactors were on their rear seat. The taxi driver did not notice that underneath the blanket draped over Analie's shoulder, appellant's ice pick remained threateningly poised at her. After alighting from the taxi at Dakota Street, Analie was brought to a dark and unlighted place where the three (3) malefactors slapped her on the face everytime she tried to raise her voice. At the motel, while talking to the roomboy, appellant continued to hold the ice pick against her neck or side underneath the blanket.17 Inside the motel room, Analie, 17 years of age at the time of the trial, did not physically resist being disrobed by appellant Angeles who had placed his ice pick nearby on top of the lavatory. She laid down on the bed when appellant threatened to kill her. She testified that she was then already weakened, tired and worn out and feared that she would be stabbed if she struggled with appellant. Neither could she seek to grab the icepick while appellant was on top of her on the bed, for appellant held her hands and continue to hold the icepick at her neck.18 This Court has many times held in the past that rape is committed when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapist's embrace because of the fear for life and personal safety.19 The reality of continuing intimidation used against Analie Baltazar is evident all through the record of this case. As to appellant's argument that Analie's testimony to the effect that he had returned to the scene of the robbery was improbable, it may be observed, firstly, that even if it is conceded (and it is not necessary so to concede) that this portion of Analie's testimony was improbable, that testimony did not relate to the material facts constitutive of the crime of rape. There is no rule of law which requires a court to disregard

the entirety of the testimony of a witness because a portion thereof may be doubtful.20 Analie declared before the trial court that she saw the appellant at the vicinity of her house at least three (3) times after the robbery and rape and that she had immediately informed her father of appellant's appearance. 21 On the third occasion, on 26 February 1989, Analie's father was able to chase down the appellant Angeles and confront him about his daughter's violation. A false sense of security born out of his having successfully eluded Analie's father twice before, would account for appellant's imprudent third visit to the scene of the robbery. Thus, appellant has failed to establish any significant fact which the trial court overlooked or misconstrued and which would change the result reached by the trial court. This Court is thus bound to affirm the factual conclusions of the trial court, more particularly on the credit worthiness of Analie's testimony, 22 since the trial court had the opportunity to observe carefully her demeanor and deportment in court while testifying.23 Appellant's defense of denial and alibi, it is firmly established doctrine, cannot prevail over the positive identification made by Analie Baltazar. Analie had expressly and positively stated that it was appellant Angeles who dragged her from her house in the company of two (2) other men who were carrying away her family's typewriter and video cassette recorder, and that it was appellant Angeles who had disrobed her at the motel and then copulated with her, with an icepick poised at her neck or within easy reach of the appellant.24 Finally, when appellant and his mother declared that appellant was sleeping at the latter's house at Araneta Street, Tatalon estate, Quezon City, on the evening of 23-24 February 1989,25 the Court notes that this location is only a few kilometers away from Baltazars' residence at Algeciras Street, Sampaloc, Manila, such that appellant could move from one location to the other within a short period of time, with public transportation. Appellant's defense of alibi cannot be sustained in view of his failure to show the physical impossibility of his being at the scene of the crime or about the time of the commission thereof. 26 There are, however, two (2) errors on the part of the trial court which need to be addressed. The first error relates to the penalty properly imposable on appellant for the crime of robbery in Criminal Case No.8970962. Under Article 299 of the Revised Penal Code, the penalty imposable for robbery in an inhabited place is reclusion temporal.Taking into account the provisions of the Indeterminate Sentence Law, considering that no modifying circumstances were alleged and proved and exercising the discretion of this Court, the penalty properly imposable upon appellant Angeles for the robbery is an indeterminate sentence, the minimum of which shall be eight (8) years and one (1) day of prision mayor and the maximum of which shall be fourteen (14) years, eight (8) months and one (1) day of reclusion temporal. The second error relates to the proper characterization of the offense with which appellant was charged and for which he was convicted in Criminal Case No. 89-70961. Analie had testified before the trial court that while at the motel, the appellant had told her that he and the other malefactors had been "tipped off that her family residence contained many appliances and that they had planned to carry away many of them but had changed their minds." Appellant decided to take her with him because she was "more important to (sic) these things."27 The information in Criminal Case No. 89-70961 had sufficiently alleged, and the prosecution shown at the trial, that before Analie was raped, she was taken from her house against her will and with lewd designs. Taking all these circumstances into account, it is clear to the Court that appellant Angeles committed the complex crime of forcible abduction with rape, defined and penalized under Article 342 (forcible abduction) and Article 335 (rape) of the Revised Penal Code in relation to the second clause of Article 48 (complex crimes) of the same Code. The forcible abduction was, in the circumstances of this

case, a necessary means to commit the rape.28 In the case variance between the caption of the information and the allegations set out in the body thereof, which allegations sufficiently described the offense(s) and its elements, the latter prevails over the former.29 Article 48 of the Revised Penal Code provides that in complex crimes, the penalty for the most serious crime shall be imposed in its maximum period. In the case at bar, the more serious of the two (2) crimes (forcible abduction and rape) established in Criminal Case No. 89-70961 was rape committed with a deadly weapon (here, the icepick) which is punishable with reclusion perpetua to death under paragraph 3 of Article 335 of the Revised Penal code. Since no modifying circumstances were either alleged or proved in Criminal Case No. 89-70961,30 and considering the non-enforceability of the death penalty, the penalty properly imposable on appellant is reclusion perpetua. The trial court's reference to "life imprisonment" is, of course, wrong. In line with recent case law, the indemnity for moral damages awarded to Analie Baltazar in Criminal Case No. 89-70961 should be increased to P30,000.00.31 WHEREFORE, the decision of the trial court dated 7 March 1991 is hereby MODIFIED so as to read as follows: Criminal Case No. 89-70961, Rape, Reclusion perpetua, and pay as moral damages complainant ANALIE BALTAZAR Y CORDON the sum of THIRTY THOUSAND (P30,000.00) PESOS; WITH COSTS. Criminal Case No. 89-70962, Robbery, Imprisonment for an indeterminate period ranging from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, the stolen articles being not recovered, to pay complainant ANALIE BALTAZAR Y CORDON, by way of reparation, the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH COST. As so modified, the decision of the trial court is hereby AFFIRMED. Costs against appellant. SO ORDERED. Bidin, Davide, Jr., Romero and Melo, JJ., concur.

13. G.R. No. 111124 June 20, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN SALVATIERRA, ENRIQUE CONSTANTINO, AGUSTIN TRINIDAD, WILLIE TRINIDAD, and ALVIN SANTOS, accused.

belonging to said Hichiro Kubota and Elizabeth Hammond, to the damage and prejudice of the latter in the aforementioned amount(s) of P800,000.00; 26,000.00 yen; US$2,400.00 and P7,000.00; that on the occasion of the said robbery, the said accused, conspiring and confederating together and mutually helping and aiding one another by means of force, threats and intimidation and one after the other, did then and there willfully, unlawfully and feloniously lie with and have carnal knowledge of Hazel Arjona, Hichiro Kubota's maid, against her will and consent.

ENRIQUE CONSTANTINO, accused-appellant. REGALADO, J.:p As the lone indictee who invoked this appellate review, accused-appellant Enrique Constantino seeks the reversal of the judgment of conviction1 rendered by the Regional Trial Court, Branch 56, of Makati, Metro Manila which found him guilty of the special complex crime of robbery with homicide together with another accused in the court a quo, Juan Salvatierra y Eguia, alias "Untoy."2 Appellant's main defense is grounded on the exempting circumstance that he had acted under the impulse of uncontrollable fear since he was allegedly coerced by his co-accused into committing the criminal offense for which they were all charged. He further attributes reversible errors to the findings of the trial court on questions respecting the credibility of the prosecution witnesses. In an amended information dated August 11, 1988, the prosecution initiated Criminal Case No. 359 in the court below charging Enrique Constantino; Agustin Trinidad, alias "Agos" Willie Trinidad, alias "Willie"; Alvin Santos, alias"Alvin"; and Juan Salvatierra y Eguia, alias "Untoy," with the so-called offense of "Robbery in Band with Rape and Double Homicide and Attempted Homicide," under the following allegations: That on or about the 15th day of May, 1988, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, while armed with handguns and knives, with intent to gain, entered the house of HICHIRO KUBOTA and ELIZABETH HAMMOND and once inside, the above-named accused, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away the following, to wit: a) Assorted jewelries valued at P800,000.00 b) 26,000.00 yen

That on the occasion of the said robbery, the said accused, conspiring and confederating together and mutually helping and aiding with (sic) one another with intent to kill with treachery, evident premeditation and abuse of superior strength did then and there willfully, unlawfully and feloniously stab with knives one Hichiro Kubota on the different parts of his body and stab one Hazel Arjona on her stomach, as a result (w)hereof, the said victims suffered mortal wounds which directly cause(d) their death, and also on the same occasion, with intent to kill, attacked, assaulted and stabbed with a knife one Marilyn Juguilon on the upper part of her right arm thereby commencing the commission of the crime of homicide directly by overt acts but (were) not able to perform all the acts of execution which should produce the felony by reason of some cause or accident other than their own spontaneous desistance and that the injuries sustained by her is not sufficient to cause her death.3 (Corrections in parentheses supplied.) At the trial of the case which commenced sometime in September, 1988, only three of the five accused were proceeded against, namely, Juan Salvatierra, Enrique Constantino and Agustin Trinidad. Willie Trinidad and Alvin Santos eluded arrest and have remained at large. As it was accused Juan Salvatierra who was initially apprehended, his arraignment was held ahead of the other two. He pleaded not guilty when arraigned on August 31, 1988 with the assistance of counsel de oficio.4 Trial then proceeded as to him, with the prosecution presenting as witnesses Elizabeth Hammond, Diosa Hammond, Marilyn Juguilon, Dr. Bienvenido Muñoz, and Pfc. Leonardo Timtim. Salvatierra himself testified in his defense and one Fe Maderazo was presented to corroborate his alibi. Accused Enrique Constantino and Agustin Trinidad, on the other hand, were arrested later and arraigned on March 15, 1990 and May 30, 1990, respectively, shortly after the prosecution had rested its case with regard to accused Juan Salvatierra. Both Constantino and Agustin likewise entered negative pleas with the assistance of their respective counsel.5 The prosecution anchored its case against the duo mainly upon the testimonies of Elizabeth Hammond, Epifania Hammond, Diosa Hammond, and Atty. Isidro Hildawa. As in the case of Salvatierra, Constantino and Agustin were their own defense witnesses. On January 22, 1993, the trial court pronounced a verdict of guilty as regards Enrique Constantino and Juan Salvatierra, and one of acquittal with respect to Agustin Trinidad, its judgment reading as follows:

c) US $2,400.00 and d) P7,000.00

WHEREFORE, finding accused Juan Salvatierra and Enrique Constantino guilty beyond reasonable doubt of the commission of robbery with homicide as defined and penalized under Art. 294, par. 1 of the Revised Penal Code, they are hereby sentenced to suffer the penalty of reclusion perpetua and to jointly and severally pay to the heirs of Hichiro

Kubota the amounts of P50,000.00 for the loss of his life, P50,000.00 for moral damages, P807,000.00, 26,000 yen and US$2,400.00 or their equivalent in pesos, corresponding to the stolen jewelries and cash money, and also to the heirs of Cecille (Hazel) Arjona the sum of P50,000.00 for the loss of her life and an additional sum of P30,000.00 for moral damages. The preventive imprisonment accused Juan Salvatierra and Enrique Constantino have undertaken (sic) shall be deducted from the term of imprisonment imposed herein to its full extent if they signed an agreement to abide by the same rules upon convicted prisoners while in confinement and only four-fifths (4/5) thereof if they have not signed said agreement, pursuant to Art. 29 of the Revised Penal Code, as amended by Republic Act No. 6127. For failure of the prosecution to prove his guilt beyond reasonable doubt, accused Agustin Trinidad is hereby acquitted of the crime charged in the information. The Municipal Warden of Makati is hereby ordered to release accused Agustin Trinidad from custody, unless he is being held or detained for any other cause.6 As borne out by the record, the residence of Hichiro Kubota, a Japanese national, and his Filipino commonlaw wife, Elizabeth Hammond, at 1668 Baler Street, Makati, Metro Manila was robbed in the evening of May 15, 1988 by five armed men. The robbery also resulted in the killing of Hichiro Kubota and one of the latter's housemaids, Hazel Arjona, both of whom died of fatal stab wounds. Another maid, Marilyn Juguilon, was attacked with a knife by one of the robbers during the incident but she luckily survived the assault. Elizabeth Hammond, her mother Epifania and sister Diosa escaped unhurt, as did the two young children of the Kubotas. A considerable amount of money and several pieces of jewelry were carted away by the robbers. From the start, the evidence clearly pointed to appellant as one of the malefactors and not surprisingly, for Constantino was a former driver of Hichiro Kubota and Elizabeth Hammond. Appellant was, by reason thereof, well known to prosecution eyewitnesses Elizabeth Hammond, Diosa Hammond, Epifania Hammond and Marilyn Juguilon.7 By his own account, as herein summarized,8 appellant admits having been with the group of Salvatierra which robbed the house of spouses Hichiro Kubota and Elizabeth Hammond in the evening of May 15, 1988. At the time of the incident, he was working as a driver for a Japanese friend of Kubota and it was in fact the latter who recommended him to that Japanese employer, a certain Kinawa. He recalls that he was invited by the group of Salvatierra for a drinking spree in Cubao in the afternoon of that day. Juan Salvatierra, Agustin Trinidad, Wilfredo Trinidad and Alvin Santos were his acquaintances whom he had met a few months earlier at an auto repair shop. After consuming some bottles of liquor, Salvatierra approached appellant and asked whether the latter could help him find employment under Kubota. When appellant declined, Salvatierra lost his temper and drew a knife which he pointed at appellant, saying, "Tarantado ka, Eric. Marunong ka pa sa boss mo, basta samahan mo kami ngayon."

Fearing for his life, appellant acceded. They hailed a taxicab and all of them proceeded to the residence of Kubota, with Salvatierra all the while poking his knife at appellant who was then at the backseat along with Salvatierra, Agustin Trinidad and Alvin Santos. When they reached the place, it was appellant who rang the doorbell at the prodding of Salvatierra who continued to poke the knife at his back. Appellant talked to Elizabeth Hammond and thereafter he, Salvatierra and Santos went inside the house. He proceeded to Kubota's room upstairs and told him about Salvatierra wanting to get a job. They then went down and Kubota conversed with the group. At this juncture Santos stood up and instantly brandished a gun at Elizabeth Hammond. Salvatierra followed suit by pulling out a knife and directed that the couple be brought upstairs. According to appellant, much as he wanted to prevent the robbery, he could not do anything supposedly by reason of extreme fear on his part. He had earlier heard Salvatierra utter these threatening words: "Pag kumilos ng masama si Eric, tirahin mo." Appellant nonetheless managed to plead with the three by saying. "Huwag naman kayong manakit ng tao dito so bahay." This, however, drew an angry reaction from Salvatierra who threatened him once more with bodily harm. Later, appellant saw Epifania Hammond, the mother of Elizabeth. Appellant tried to calm her down and led her back to her room when the old lady started to ask him what was going on. As soon as he got out of Epifania's room, he saw a bloodied Hichiro Kubota lying in the master's bedroom. Meanwhile, Salvatierra and Santos were already ransacking the place. After looting the house, Salvatierra ordered appellant to drive for them but Constantino replied that the vehicle was out of order. At around 2:00 A.M., appellant noticed that he was alone by himself, Salvatierra and the others having apparently left the place. Appellant proceeded to the comfort room to relieve himself and it was there that he saw the naked body of a woman covered with blood. He then sought out Elizabeth Hammond and found the latter in her bedroom gagged and blind folded. Appellant removed the cloth tied around her mouth and eyes and told her, "Ely, wala akong kinalaman sa pangyayari." Hammond told him not to worry. At around daybreak, the doorbell to the house rang. It was Hammond's "comadre," who left shortly after conferring with the former for twenty minutes. At 6:00 A.M., appellant allowed the children of Hammond to go out with Epifania and Diosa Hammond so the children could play. He then attended to the wounded Marilyn Juguilon. At 7:00 AM., he left the house and drove away in the car of Kubota. Appellant recollected that he thereafter saw Elizabeth Hammond and her driver at the corner of Baler and Pililla Streets in Makati. He asked Hammond to join him and the latter complied. Inside the car, he again repeated to Hammond that he had nothing to do with the crime. Hammond reassured him, saying, "Eric, huwag kang mag-alaala, hindi ka naman madadamay diyan," after which she alighted from the car and took a taxi. They crossed paths again along the South Superhighway, where he reiterated his innocence to Hammond and told her that he would just borrow her husband's car and leave it in a place where it could easily be recovered. Appellant then drove to the Quirino Highway towards Nagtahan Bridge and when he reached the Balic-Balic church in Sampaloc, Manila, he parked the car and left it there. He said that although he encountered a number of policemen along the way, he did not turn himself in for fear of his life.

Appellant now insists that the trial court erred in disbelieving his foregoing version and in affording more weight to that of the prosecution. The trouble with appellant's defense is that it is not only shot through and through with contradicted self-serving representations but it is inherently incredible. Verily, just as the court below refused to concede any evidentiary merit or probative value to such a defense, there could not be any way for this Court to accord credence to appellant's asseverations. The positive declarations of eyewitnesses Elizabeth Hammond, Epifania Hammond, Diosa Hammond and Marilyn Juguilon as to his participation in the incident all unerringly point to an active role on his part in the incident, sufficient to conclusively establish his complicity in the crime and belie his claim of having acted under duress. For, in order that duress may be validly availed of by an accused as a defense, it should actually be anchored on a real, imminent or reasonable fear for one's own life or limb and should not be speculative, fanciful, or imagined.9 It is based on the complete absence of freedom on the part of the accused and has its roots in the Latin maxim "Actus me invito factus non est meus actus," which translates to "An act done by me against my will is not my act." The compulsion employed upon the accused must have been of such character as to leave no opportunity for him to spring an escape or to himself foist any act of defense for self-preservation. Thus, duress has been held unavailing where the accused had every opportunity to run away if he had wanted to or to resist any possible aggression because he was also armed. 10 Appellant's account of the supposed employment of duress upon him by his cohorts falls far short of the requirements under which the same could have substantial value in evidence. Appellant could well have dissociated himself from the criminal escapade considering that when the group flagged down a taxicab, it did not appear at that point that appellant was being threatened at all by Salvatierra. It was only when the group was already in the vehicle that appellant, as he claims, was once more subjected to intimidation by Salvatierra. Again, upon reaching the residence of the victims, appellant had all the opportunity to escape from the time when he rang the doorbell and when they were allowed by Elizabeth Hammond to go inside the house, and especially thereafter. What is significant from the testimony of appellant is that, of his four co-accused, it was only Salvatierra who was actually armed with a knife and who had exhibited a threatening attitude towards him. 11 This fact should have sufficiently emboldened him to get hold of and rouse himself from the stupor of fear which supposedly gripped him. But he did not or, more plausibly, he chose not to do so. Appellant's defense is akin to a mere denial, a self-serving and negative device which judicial experience shows is conveniently conjured by felons to justify their participation in a crime. Hence, like a bare denial, it must fail if unsubstantiated by clear and convincing evidence and cannot be given greater evidentiary value than the testimony of credible witnesses who testify on affirmative matters. More worthy of acceptance, then, are the categorical and positive testimonies of the victims who survived the ordeal, particularly Elizabeth Hammond and Diosa Hammond, that appellant really had an active role in the criminal incident. Thus, to repeat, between the self-serving denial of appellant, on the one hand, and the categorical affirmation of the prosecution witnesses, on the other, the latter undoubtedly deserves greater credence.12 Further, appellant has not shown by any satisfactory degree of proof that these witnesses were impelled to testify against him by reason of false or ill motives. A recognized tenet of long standing in this jurisdiction is that in the absence of proof of any intent on the part of prosecution witnesses to falsely impute such a serious crime against the accused, the presumption must be upheld that these witnesses were

not actuated by any improper motive and their testimonies must accordingly be met with considerable, if not, conclusive favor under the rules of evidence.13 Accordingly, appellant's attempt to assail the credibility of Elizabeth Hammond must ineluctably fail, even assuming arguendo that the events he narrates and relies upon therefor did take place. Indeed, we cannot agree that it was absurd for Hammond to answer the call of her "comadre" at 4:00 A.M. of that day while appellant was still there, then later take out her children at 6:00 A.M. for a brief walk; and, upon returning shortly thereafter, ask appellant as he was driving away in their car, what had happened to Kubota. Hammond had to face her "comadre" precisely because she was allowed to do so by appellant himself in order to dispel suspicion. Nonetheless, Hammond did the natural thing when she told her visitor that they had been robbed although she did not disclose that appellant was still inside the house, evidently because of fear. As to her taking out her children for a walk which would have given her the chance to report the robbery, she must have labored under the fear that since appellant was close by, it would only invite harm upon her common-law husband and the rest of her family who were still inside the house and whose fate she did not yet know. She, in fact, made subsequent attempts to contact through the telephone a person whom she felt could help them but she failed.14 At any rate, the circumstance that really matters is that in her affidavit of May 17, 198815 and in her testimony in court, she unequivocally identified appellant and clearly established the details of his actual participation in the crime. Parenthetically, the full affirmative measure extended to said court declarations of said witnesses by the court a quoshould, in this appeal, be confirmed particularly in view of the absence of any perceptible error committed by said court. Appellate courts would not be bound by said findings of the trial court and could deviate therefrom only when that court has predicated its findings wrongly as when it overlooked or misinterpreted some facts or circumstances of weight and substance which could affect the outcome of the trial.16 Now, as succinctly laid out by the lower court, appellant's guilt is borne out by the following proven circumstances: As against accused Enrique Constantino, who was the former driver of Hichiro Kubota and Elizabeth Hammond, the established facts that implicate him are: 1. He admitted his presence in the house of the deceased Hichiro Kubota and Elizabeth Hammond at the time of the incident. 2. Elizabeth Hammond categorically declared the participations (sic) of Enrique Constantino as follows: a. It was Enrique Constantino who rang the doorbell, pretended to have a message to Hichiro Kubota from a Japanese, and falsely introduced his companions as his cousins, so that they were allowed by Elizabeth Hammond to come into the house.

b. While Constantino and Hichiro Kubota were talking with each other at the sala, she went upstairs to their bedroom. Constantino and a companion followed her. Constantino's companion poked a knife at her and Constantino told her not to make any noise because they only needed money. c. Constantino and one of his companions dragged her out of their bedroom and was instructed to seat (sic) beside her husband Hichiro Kubota at the top of the stairs. d. The companions of Constantino searched the rooms, the bags and the drawers and they found inside her bag the money amounting to $2,400.00, 26,000 yen and P7,000.00 which they took. Constantino was the one holding the bag. e. While she was covered with a blanket and pillow inside the room where she was brought back by Constantino and his companions, she could hear Constantino talking with his companions and he said "Sige pare, gulayin ninyo." After that, she heard a very loud moaning coming from a man being hurt, supposedly her husband Hichiro Kubota. f. When she went out of her room at dawn after she was able to free herself from being tied, she met Constantino who came from the comfort room upstairs holding a knife. Constantino brought her again inside the bedroom and he again tied her hands behind her back with the use of a handkerchief. g. When she was on the street near her house the following morning, she saw Constantino driving their car. She asked him what happened to her husband and he answered, "Pinatay na namin ang mister mo, nadamay ang katulong ninyo." She cried and went back to her house and she saw her husband already dead. She saw their maid Hazel Arjona also dead inside the comfort room. 3. Diosa Hammond who was familiar with Eric Constantino testified in particular that she saw Constantino with one of his companions inside the room opening the drawer and putting something inside his pocket. She was transferred to another room by Constantino and in the course of which, he told her "Tumahimik ka diyan, kung ayaw mong mamatay." She was again blindfolded by Constantino. The following morning after her blindfold had loosened and she could see with one eye, she saw Constantino inside the room beside the comfort room cleaning a knife about 6 inches long with a handkerchief. The foregoing acts performed by accused Enrique Constantino as narrated by the witnesses clearly indicate that he was in concert and in coordination with his other coaccused in the execution of their criminal design. 17 Appellant's immediate flight to and his months of sojourn in Sorsogon after the incident are likewise indicative of his guilt. To make matters worse, he even assumed a different identity, as one "Aeron A. Cortez" with a passport to boot,18 while staying in said province. It is but logical to conclude therefrom that he had precisely resorted to such a subterfuge in order to evade apprehension by the authorities. His

assertion that he had to hide in Sorsogon due to threats to his life by his co-accused deserves no consideration. As pointedly noted by the Solicitor General, appellant never alluded to such a situation in his testimony at the trial and he obviously is raising it in this appellate review out of sheer desperation. Evidence to be believed, it should once again be stressed, must not only proceed from the mouth of a credible witness but must be credible in itself.19 Finally, appellant contends that the acquittal of one of his co-accused, Agustin Trinidad, had the salutary effect of rendering inconsequential the allegation of conspiracy, in which case the accused should be correspondingly punished only for the acts individually perpetrated by each of them. This is an erroneous non sequitur for, as correctly urged by the People, the trial court should not have absolved Trinidad in this case. The evidence clearly shows that Trinidad was able to enter the residence of the Kubotas because he was introduced to Elizabeth Hammond by appellant as his cousin. However, it was in fact Agustin Trinidad and appellant who later opened the vault from where they took some valuables. 20 It would, therefore, be absurd for appellant to benefit from that unfortunate mistake of the court below. Conspiracy may be deduced from the acts of the appellants before, during, and after the commission of the crime which are indicative of a joint purpose, concerted action, and concurrence of sentiments. 21 All the five accused arrived at the same time at the residence of the Kubotas. Two remained outside, apparently as lookouts, while appellant and the two others proceeded inside. Appellant's act of misrepresenting to Elizabeth Hammond that they were there to ask for something from Hichiro Kubota, and by reason of which they were allowed to enter the house, is revelatory of their duplicitous plan from the start. Their original and principal intention was undoubtedly to rob the Kubotas, as is evident from the testimony of Elizabeth Hammond that appellant told her they were there simply for the money. As conspiracy had been established, all the conspirators are liable as co-principals regardless of the manner and extent of their participation since, in point of law, the act of one would be the act of all. 22 As the robbery resulted in the killing of Hichiro Kubota and Hazel Arjona, 23 the offense committed by the malefactors and for which they were properly pronounced guilty is the special complex crime of robbery with homicide punishable under Article 294 (1) of the Revised Penal Code, as amended. Said provision and the accepted jurisprudence thereon, dictate that whenever homicide is committed as a consequence or on the occasion of the robbery, all those who took part as principals in the conspiracy are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the killing, unless proof is presented that they had endeavored to prevent the same.24 In the case of appellant, he was heard telling his co-conspirators to finish off their victims,25 hence, his guilt is clear. Treachery, which thus absorbs abuse of superior strength, attended the killings as the victims were both hog-tied when stabbed repeatedly, but not all the elements of evident premeditation can be deduced from the evidence of the prosecution. No evidence was adduced showing when the accused hatched the murderous plan and the interval of time therefrom to its commission. The presence of alevosia, though, should not result in qualifying the offense to murder, for the correct rule is that when it obtains in the special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance, robbery with homicide being a case of a composite crime with its own definition and special penalty in the Revised Penal Code.26

The categorization by the prosecution of the crime as "Robbery in Band with Rape and Double Homicide and Attempted Homicide" is however, erroneous. The presence of a band and the rape of Hazel Arjona were not duly established, but even if the same had been proved the indictable offense would still be robbery with homicide under the aforestated Article 294 (1) of the Code. The same is equally true even if there be multiple homicides or murders, or attempts thereof, or physical injuries. 27 Band or cuadrilla, if present, would be considered as an aggravating circumstance. 28 In the case of rape on the occasion of the robbery, the rule at the time the crime subject of this case was committed was that when rape and homicide co-exist in the commission of robbery, it is Article 294 (1) which applies, the rape to be considered as an aggravating circumstance.29 In the instance wherein multiple killings are perpetrated con ocasion del robo, the rulings of the Court on the matter are that the composite crime of robo con homicidio is not to be multiplied by the number of persons killed.30 The legal concept of robbery with homicide, as enunciated in People vs. Madrid, 31 "does not limit the taking of human life to one single victim making the slaying of human beings in excess of that number punishable as separate, independent offense or offenses. All the homicides or murders are merged in the composite, integrated whole that is robbery with homicide so long as all the killings were perpetrated by reason or on the occasion of the robbery." In short, this special complex crime should not be multiplied and be made dependent on the number of persons killed. The multiplicity of victims slain, again, could only be appreciated as an aggravating circumstance.32 However, in the case at bar, the imposable penalty for herein appellant is still reclusion perpetua, as the imposition of the death penalty was then proscribed at the time of the commission of the crime.33 ACCORDINGLY, the judgment of the Regional Trial Court, Branch 56, of Makati, Metro Manila in Criminal Case No. 359 finding accused-appellant Enrique Constantino guilty of the special complex crime of robbery with homicide, and imposing on him the penalty of reclusion perpetua with the corresponding civil liability, is hereby AFFIRMED, with costs in both instances. SO ORDERED. Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

a — exists (sic) — irregular in shape 1.5 left iliac region.

14. G.R. No. L-41008 PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. ARTURO PECATO, ET AL., accused. FELIX PECATO AND ERENEO PERUDA, accusedappellants.

2.1. — umbilicus b — entrance — circular in shape located at the spinal column between the iliac crests. Internal examination:

SARMIENTO, J: Before us on automatic review is a decision 1 of the then Court of First Instance of Surigao del Norte, 15th Judicial District, Branch II, Surigao City, in Criminal Case No. 185, finding the accused Felix Pecato and Ereneo Peruda guilty beyond reasonable doubt of the crime of robbery with violence against or intimidation of persons as defined and penalized under Article 294 of the Revised Penal Code, sentencing them to suffer the supreme penalty of death by electrocution together with all the accessory penalties prescribed by law, to indemnify the heirs of Felix Larong in the sum of twelve thousand pesos, and to pay their proportionate share of the costs. In an Information 2 dated February 16, 1972, the lst Assistant Provincial Fiscal of Surigao del Norte accused Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda of the crime of robbery with homicide committed as follows: xxx

xxx

xxx

That on or about the lst day of November, 1971 in the municipality of Gigaquit, province of Surigao del Norte, Philippines and within the jurisdiction of this Honorable Court, the herein accused, Arturo Pecato, Felix Pecato, Victoriano Leyros and Ereneo Peruda, conspiring, confederating and helping one another, and armed with the following deadly weapons to wit: One revolver Cal. 22; two sharp pointed instruments; two shotguns, with intent of gain and by means of violence and intimidation on persons that is shooting Felix Larong and manhandling Uldarica Larong, his daughter, the latter sustained injuries in the different parts of her body, did then and there willfully, unlawfully, and feloniously take, from Felix Larong and Luciana Larong, husband and wife respectively, the amount of Three Hundred Fifty (P350.00) Pesos, Philippine Currency, belonging to Felix Larong, to the damage and prejudice of the latter in the amount aforestated. That on the occasion of said robbery and for the purpose of enabling them to take, steal and carry the amount of Three Hundred and Fifty (P350.00) Pesos, the herein accused in pursuance of their conspiracy, with intent to kill did then and there willfully, unlawfully and feloniously, with evident premeditation, taking advantage of superior strength, disregard of rank on account of age; in band, nighttime and treachery, attack, assault and shoot Felix Larong, with the use of firearms, thereby inflicting upon the latter, the following injuries, to wit: 1. Shotgun wounds —

a — Penetrated wounds small intestine, — large intestine, mesenteries. b — severed spinal column c — extracted pellets. 1.2. from the abdominal wall 2.1. from the spinal column. and as a consequence thereof cause the death of Felix Larong thereby causing moral damages to the heirs of the victim. Contrary to Art. 294 paragraph 1 of the Revised Penal Code with the generic aggravating circumstance of treachery and the aggravating circumstance of insult or disregard of rank, in band, use of superior strength and night time. xxx

xxx

xxx

Of the four accused, only three, Arturo Pecato, Felix Pecato, and Ereneo Peruda, were arrested. Victoriano Leyros went into hiding, evaded arrest, and has remained at large. Upon their arraignment on February 18, 1974 3 the three accused, Arturo Pecato, Felix Pecato, and Ereneo Peruda, pleaded not guilty. Whereupon, the trial court proceeded with the trial of the case. However, before the actual trial in the court below, specifically on June 23, 1974, the accused Arturo Pecato died, hence, "his criminal responsibility in the case whatever he may have, was extinguished." 4 However, the case proceeded and was decided against Felix Pecato and Ereneo Peruda. The dispositive portion of the 109-page decision dated February 4, 1975, now under review, states: xxx

xxx

xxx

WHEREFORE, in view of all the foregoing considerations, this Court hereby finds the accused FELIX PECATO and ERENEO PERUDA guilty beyond reasonable doubt of the crime of Robbery with Violence Against or Intimidation of Persons, defined and penalized under Article 294 of the Revised Penal Code, with the aggravating circumstances of treachery, disregard of rank, in band and abuse of superior strength and nighttime, with no mitigating circumstance to offset the same, and invoking the provisions of Article 294 of the same Code with respect to the aspect that the crime was committed in band, the Court hereby sentences the said two accused to suffer the supreme penalty of DEATH by electrocution together with all the accessories prescribed by law. The same accused are hereby ordered to indemnify, jointly and severally, the heirs of Felix Larong in the sum of P12,000.00 and to pay their proportionate share of the costs. The home-made shotgun, Exhibit "D," being one of the instruments of the crime, the same is hereby ordered forfeited in favor of the Government. Let this case, insofar as the accused Victoriano Leyros who is at large be archived without prejudice to its reinstatement as soon as said accused shall have been apprehended and brought to the jurisdiction of this Court. IT IS SO ORDERED. 5 xxx

xxx

After shooting Felix Larong, the intruders next turned their attention on Uldarica Larong and demanded money from her. 23 When she refused, she was manhandled and hit with gun butt on different parts of her body. 24 One even struck the side of her face. 25 Luciana Larong, seeing what the malefactors were doing to her daughter, ordered the latter to give them money.26 Uldarica Larong first gave the men P300.00, but when they still demanded for more, she gave an additional P50.00. 27 After a while, the intruders left. Fearful that the robbers-killers would come back, Uldarica Larong and Luciana Larong went out of their house and hid themselves among the bushes nearby.28 True enough, the robbers later returned but finding no one around, they did not tarry long. 29 After staying for only about an hour, they left. 30 On the following morning, November 2, 1971, the robbery killing was reported to the Police Department of Gigaquit .31 The Chief of Police upon learning of the incident dispatched several policemen to the scene of the crime to conduct an investigation. 32 The policemen on reaching Lahi went to the house of the Larongs and there asked Luciana Larong and her daughter Uldarica Larong who perpetrated the crime. The two women positively Identified and pointed to Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda as the criminals who robbed them and killed Felix Larong. 33 Based on the Identification made by the two Larong women, the policemen arrested on that same day Arturo Pecato and Felix Pecato at their separate residences which were also located at Lahi. 34 Ereneto Peruda was apprehended the following day, November 3, 1971, in the Poblacion of Gigaquit. 35 Victoriano Leyros was nowhere to be found and thus was never arrested. 36

xxx

The records of the case establish the following facts: At about nine o'clock in the evening of November 1, 1971, 6 in Lahi, Gigaquit, Surigao del Norte, while Felix Larong, about 70 years old, 7 and his family, consisting of his wife Luciana Larong, about 85 years of age,8 and his 31-year old unmarried daughter, 9 Uldarica Larong, were preparing to sleep, 10 several men called from outside their small house, a one-room affair, 4 1/2 by 5 meters (3 by 2 fathoms) in dimensions. 11 The said men after bidding the house occupants "good evening," requested that they be allowed to enter the Larongs' house.12 Hearing these, Felix Larong opened the door of their house 13 and thereupon, four men, each carrying a gun, entered. 14 Having thus gained entrance to and once inside the house, the four heavily armed men again greeted the house occupants 15 and with the use of flashlights they carried, illuminated the inside of the house. 16 This they did notwithstanding the presence of a lighted kerosene lamp inside the house. 17 The intruders then ordered the Larongs to he face down on the floor 18 and demanded money from Felix Larong.19 When the old man replied that he had no money, he was ordered to produce his pistol to which he answered that he had none. 20 At this point, Felix Larong was asked by one of the intruders whether he recognized them. 21 When he answered in the positive since he said they were still his relatives, and even while he was lying face down on the floor, one of the men, Arturo Pecato, shot him. 22 He died as a result of the shotgun wounds he sustained.

At the trial of the case, the prosecution presented five (5) witnesses, namely: Dominador Paray, one of the policemen who conducted the investigation on November 2, 1971; Judge Capistrano C. Navallo, the municipal judge of Gigaquit who conducted the preliminary examination of the accused; Nicasio Erazo, the Chief of Police of Gigaquit at the time the crime was committed; Dr. Bernardo Moran, who interpreted and explained the medical findings contained in the autopsy report on the victim Felix Larong submitted by Dr. Celso Valmores; 37 and Uldarica Larong. Incidentally, the widow of the victim, Mrs. Luciana Vda. de Larong, was not presented at the trial. However, her deposition dated January 16, 1973, which was taken with the express permission of the trial court, 38 was presented in evidence by the prosecution as Exhibit "C". 39 The defense on its part presented as witnesses Felicidario Bayla, Daniel Latorre, Encarnacion Peruda, Vicenta Pelajes Pecato, Francisco Gonzales, and the two remaining accused themselves, Felix Pecato and Ereneo Peruda. Against the positive Identification made by prosecution witnesses Uldarica Larong and the widow, the accused interposed alibi for their defense. Accused Felix Pecato claimed that he did not commit the crime as he was at his house on that night of November 1, 1971 and never at any instance went out. 40 He stated that on the date of the incident he was sick, suffering from fever and chilling, 41 and was very weak. 42 He swore that with him that night of November 1, 1971 were his wife, their child, and his mother , 43 who massaged him, 44 and spent the night with him and his family. 45

This alibi of appellant Felix Pecato was corroborated by his mother, Vicente Pelajes Pecato, who testified that she spent the night of November 1, 1971 in the house of her son, Felix Pecato. 46 She asserted that she was there to take care of her sick son and even massaged him.47 She further testified that her son Felix never left the house that night 48 as he was then very weak and still recuperating from fever and chills. 49 Appellant Ereneo Peruda, on the other hand, averred that he spent the whole night of November 1, 1971 at home with his family and several other guests. 50 He recounted that early on that night there was a small feast held in their house as it was then his younger sister's birthday. 51 According to him, he retired to sleep at about eleven o'clock that night 52 and even shared his bed with one of their guests who stayed and spent the night at their house. 53 From that time and until eight o'clock in the morning of the next day, November 2, 1971, when he woke up, he never went out of his house. 54 The narration made by the appellant Ereneo Peruda as to his whereabouts on the night of November 1, 1971 was supported by the testimonies of two of the defense witnesses, Felicidario Bayla and Daniel Latorre. Bayla testified that he met accused Ereneo Peruda late in the afternoon of that All Saints' Day after a cockfight, 55 and together they proceeded to the latter's house as there was a small party being held then at that place.56 He further said that he stayed at the Peruda's place for three more hours after his arrival at about seven o'clock in the evening 57 and Ereneo never left the house all the while that he was there. 58 Daniel Latorre testified that he also met the accused after the cockfight held that afternoon of November 1, 1971. 59Afterwards, Daniel Latorre declared that along with several others, he went to the house of Ereneo Peruda as there was a small feast there. 60 He narrated how he was with Ereneo Peruda the whole night of November 1, 1971. He added that he even spent that night in the Perudas' place and slept side by side with the accused, sharing a bed. 61He stated hat he never noticed the accused leave the house at any single moment the whole night of November 1, 1971. 62 Encarnacion Peruda, an older sister of accused Ereneo Peruda's father 63 and a witness for the defense, stated that she immediately went to the house of the Larongs on November 2, 1971 after hearing of the death of Felix Larong. 64 According to her, upon reaching the place, she inquired from Uldarica Larong what happened and who did it. 65Uldarica Larong allegedly told her (witness) that they, the Larongs, were not able to recognize the malefactors as their faces were covered or masked and they were wearing hats. 66 Francisco Gonzales, the Municipal Mayor of Gigaquit at the time the crime was committed, 67 was presented by the accused obviously to support their accusation that they were subjected to physical maltreatment by the policemen of Gigaquit while they were under detention. However, this witness only testified that he was approached by the mother of Arturo and Felix Pecato for help regarding her sons who were then already under police custody as she was afraid that they might be mauled by the policemen. 68 Responding to the entreaty, the mayor-witness said that he summoned the Chief of Police and ordered the latter to see to it that the detainees were taken good care of. 69 The crux of this review is the determination as to which prevails between the positive Identification of the two appellants and their alibi. As already mentioned, the trial court found that herein two accused, Felix Pecato and Ereneo Peruda, guilty beyond reasonable doubt of the crime of robbery with violence against or intimidation of persons, as defined and penalized in Article 294 of the Revised Penal Code, and sentenced

them to death. After a thorough review of all the evidence on record, we are constrained to affirm, as we hereby affirm, the judgment of the trial court. While indeed, "(T)he prosecution has the onus probandi of establishing the guilt of the accused beyond reasonable doubt and the weakness of the defense does not relieve it of its duty ...," 70 in the case at bar, we are fully satisfied that the prosecution has established a clear and positive Identification of the accused. Luciana Larong and Uldarica Larong, the two prosecution witnesses who were themselves victims of the crime complaint of and subject of this criminal case, and who Identified the two accused as among the perpetrators of the crime, never in the main, wavered in their testimonies. From as early as right after the incident, during the police investigation. in the lengthy and thorough preliminary investigation conducted by Municipal Judge Capistrano C. Navallo, and at the trial of the case, these two witnesses-victims readily, positively, and unequivocally Identified Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda as the four persons who entered their home, robbed them of P350.00, killed Felix Larong, and manhandled and pistol-whipped Uldarica Larong on that fateful night of November 1, 1971. They recognized these malefactors as there was a lighted kerosene lamp inside their house that night. The two women were certain of the Identity of the four men because the latter were not wearing masks, hats, or anything to hide their Identities.71 Moreover, these witnesses and the appellants are close relatives. 72 On the other hand, the defense tried to attribute the inculpatory testimonies and hostility of the Larongs against the appellants to the "bad blood" that allegedly exists between them. This "bad blood," which is now being foisted by the defense as the motive of the Larongs in falsely accusing the appellants and testifying against them, purportedly arose when one of the accused, Arturo Pecato, now deceased, brother of appellant Felix Pecato and a friend of appellant Ereneo Peruda, testified in a stabbing incident against Jose Escudo, a grandson of the victim Felix Larong. 73 Appellant Ereneo Peruda, on the other hand, claimed that his father was, at one time, hacked by Jose Escudo. 74 The proffered motive has not been proven satisfactorily. Indeed, considering that the two witnesses-victims, are closely related by blood to the appellants, it would take much more than just "bad blood," engendered in the way revealed by the defense, to constrain close blood relatives to impute falsely the commission of a capital offense to other relatives which would mean the imposition of the extreme penalty of death. The Filipino psyche abhors such an irreverent and false imputation, This abomination is especially true among rural and simple folks like the Larongs. It is more likely that the Larongs had been impelled to testify against their relatives as a concomitant of their quest for justice. We agree with the trial court that the socalled "bad blood" that allegedly exists between the accused and the Larongs appears as mere illusions, concocted by them in a desperate but vain effort to be extricated from the crushing wheels of justice. Even defense witness Vicenta Pelajes Pecato in her testimony admitted that if there was indeed an ill-will between them and the Larongs, the victim, Felix Larong, endeavored to patch things up by admonishing his grandson, who was allegedly the source of the rift. 75 Thus it is shown that the claim of the defense on this score is, at best, flimsy. It is a rule well-settled in this jurisdiction that alibi cannot prevail over the positive Identification by the prosecution's witnesses of the accused as the perpetrators of the crime especially when there was no physical impossibility for the accused to be at the scene of the crime at the time of its commission. 76 The

rule holds more true where the accused is positively Identified by one who has no reason to charge falsely the accused with an offense that is punishable with death. 77 The alibi presented by accused Felix Pecato is even more dubious and weak because it was attempted to be established mainly by the appellant himself and his mother, Vicente Pelajes Pecato, and not by third persons "who would, in the natural order of things, be best to support the tendered alibi. 78 In People v. Romero, 79 we ruled that the testimony of a mother corroborating her son's alibi scarcely merits any probative value. It is undeniably tainted with bias for it springs from the natural desire of a mother to exculpate her son from criminal liability. 80 Further, "alibi" is at best a weak defense and easy of fabrication especially between parents and children, relatives, and even those not so related. 81 More importantly, however, from the testimonies of the witnesses, both for the prosecution as well as for the defense, it has been proven that the two appellants, Felix Pecato and Ereneo Peruda, reside in places very near the scene of the crime.82 In fact, it would only take them less than a two- hour trek from either place to the house of the victims. 83 Thus, there was no physical impossibility for the appellants to be at the scene of the crime on the night of November 1, 1971. But above all, the defense was not able to rebut the positive Identification by Luciana Larong and Uldarica Larong of the two appellants as among the four heavily armed men who shot and killed Felix Larong, robbed them of P350.00, and mauled Uldarica, inflicting physical injuries in the different parts of her body. The crime committed by the accused is Robbery with Homicide as defined and penalized under Article 294 (1), of the Revised Penal Code. Felix Larong was shot to death during the robbery. We have repeatedly held that: (A)s long as homicide resulted during or because of, the robbery, even if the killing is by mere accident robbery with homicide is committed,- it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime that has to be taken into consideration 84 Further, whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the crime are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. 85 In this instance, the evidence on record is bereft of any showing that any of the accused tried to prevent the killing of Felix Larong. What is shown instead is that they merely stood watching and did nothing when one of their companions shot the victim. 86 Additionally, the term "homicide" in robbery with homicide should be understood as a generic term and includes murder. 87 To determine the propriety of the penalty imposed by the trial court on the accused for the crime they committed, the circumstances attendant to the commission of the crime must be considered. While the Information alleges the presence of the aggravating circumstances of treachery, insult or disregard of rank, in band, abuse of superior strength, and nighttime, the decision under review found the attendance of treachery, disregard of rank, in band, abuse of superior strength, and nighttime. The trial court is correct in ruling that there was treachery in the commission of the crime. Felix Larong was shot to death while he was lying face down on the floor, 88 without any warning and thus was not able to defend himself at all.

The aggravating circumstances of in band, abuse of superior strength, and nighttime were likewise present in the commission of the crime. The robbers, numbering four were all armed. 89 Felix Larong, who was already 70 years old on November 1, 1971, was shot and killed by one of the robbers all of whom were younger and physically stronger. The robbers likewise especially sought nocturnally in committing the crime. This is shown by their act of providing themselves with flashlights 90 which they used in illuminating the interior of the Larong's home after they had gained entrance therein. Additionally, the aggravating circumstance of dwelling is also present in this case inasmuch as the crime took place and was committed by the accused in the house of the victims. We have held that dwelling is an aggravating circumstance in the crime of robbery with homicide 91 as the authors thereof could have very well committed the crime without the need of violating the domicile of the victims. 92 The aggravating circumstance of disregard of rank cannot, however, be appreciated in this case. Disregard of rank finds no application in robbery with homicide, a crime primarily against property and not against persons. 93 The crime of robbery with homicide is punishable by reclusion perpetua to death. This case being attended by the generic aggravating circumstances of treachery, in band, abuse of superior strength, nocturnally, and dwelling, without any mitigating circumstance to offset the same, and observing the provisions of Article 63, second paragraph, of the Revised Penal Code, the penalty that must be imposed on the two appellants, Felix Pecato and Ereneo Peruda, should be, as correctly meted out by the trial court, death. However, pursuant to Section 19(l), Article III, Bill of Rights, of the 1987 Constitution, the death penalty has already been abolished. Thus, the penalty imposable on the accused is only reclusion perpetua. Parenthetically, the observation by the People in its Brief for the Appellee, 94 that the trial court should not have mentioned Article 296 of the Revised Penal Code in its decision, is well taken. As early as in the case of People vs. Apduhan 95 this Court had the occasion to state that the special aggravating circumstance of "use of unlicensed firearm" mentioned in Article 296, Revised Penal Code, is applicable only to cases of robbery committed by a band therein defined, which fall within the scope of and are punishable under Article 295 in relation to subdivisions (3), (4), and (5) of Article 294. 96 WHEREFORE, with the above MODIFICATIONS and the increase of the indemnity that must be paid to the heirs of the late Felix Larong to Thirty Thousand Pesos (P30,000.00), 97 the decision of the trial court is hereby AFFIRMED. With costs against the accused-appellants. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

15. PP V HONDUA SEPT 26, 2000 16. PP V ANGELES AND NBSP, 292 SCRA 451 17. G.R. No. L-28865 February 28, 1972 NICANOR NAPOLIS, petitioner, vs. COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents. Victor Arichea for petitioner. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Conrado T. Limcaoco for respondents.

CONCEPCION, C.J.:p Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming that of the Court of First Instance of Bataan, the dispositive part of which reads as follows: IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the accused Bonifacio Malana, Nicanor Napolis and Apolinario Satimbre guilty beyond reasonable doubt of the crime of robbery in band and sentences Bonifacio Malanaas an accessory after the fact to suffer imprisonment of from six (6) months, arresto mayor, as minimum to six (6) years, prision correccional, as maximum and to indemnify the offended party, Ignacio Peñaflor in the sum of P80.00 with subsidiary imprisonment in case of insolvency but not to exceed one-third (1/3)of the principal penalty and the accused Nicanor Napolis and Apolinario Satimbre to suffer imprisonment of from ten (10) years and one (1) day, prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day, reclusion temporal, as maximum, both to indemnify the spouses Ignacio Peñaflor and Casimira Lagman in the sum of Two Thousand Five Hundred FiftySeven Pesos (P2,557.00) without subsidiary imprisonment in case of insolvency and all three to pay the proportionate part of the costs. The main facts, on which there is no dispute, are set forth in the decision of the Court of Appeals, from which We quote: At about 1:00 o'clock in the early morning of October 1, 1956, Mrs. Casimira Lagman Peñaflor , 47-year old wife of Ignacio Peñaflor , the owner of a store located at the new highway, Hermosa, Bataan, after answering a minor call of nature, heard the barkings of the dog nearby indicating the presence of strangers around the vicinity. Acting on

instinct, she woke up husband Ignacio Peñaflor who, after getting his flashlight and .38 caliber revolver, went down the store to take a look. As he approached the door of the store, it suddenly gave way having been forcibly pushed and opened by 4 men, one of them holding and pointing a machinegun. Confronted by this peril, Ignacio Peñaflor fired his revolver but missed. Upon receiving from someone a stunning blow on the head, Ignacio fell down but he pretended to be dead. He was hogtied by the men. The fact, however, was that he did not lose consciousness (tsn. 5, I). The men then went up the house. One of the robbers asked Mrs. Casimira L. Peñaflor for money saying that they are people from the mountain. Mrs. Casimira L. Peñaflor , realizing the danger, took from under the mat the bag containing P2,000.00 in cash and two rings worth P350.00 and delivered them to the robber. Thereupon, that robber opened and ransacked the wardrobe. Then they tied the hands of Mrs. Casimira L. Peñaflor and those of her two sons. After telling them to lie down, the robbers covered them with blankets and left. The revolver of Ignacio, valued at P150.00, was taken by the robbers. The spouses thereafter called for help and Councilor Almario, a neighbor, came and untied Ignacio Peñaflor . The robbery was reported to the Chief of Police of Hermosa and to the Philippine Constabulary. Chief of Police Delfin Lapid testified that he went to the premises upon receiving the report of Councilor Almario and found owner Ignacio Peñaflor with a wound on the head (tsn. 23, I). The wardrobe was ransacked and things scattered around. It appears that the robbers bore a hole on the sidewall of the ground floor of the store and passed through it to gain entrance. According to Chief of Police Delfin Lapid, "they removed the adobe stone and that is the place where they passed through" (tsn. 24, I). In that same morning, policeman Melquiades Samaniego reported seeing suspicious characters passing through a nearby field and when the field was inspected, the authorities were able to locate a greasegun with 5 bullets and a pistol with 3 bullets (tsn. 24, I, testimony of Chief of Police)... It appears that, shortly after the occurrence, a criminal complaint for robbery in band was filed with the Justice of the Peace Court of Hermosa, Bataan. Named as defendants in the complaint, as subsequently amended, were Nicanor Napolis, Bonifacio Malana, Ben de la Cruz, Mauricio Anila, alias Mori, Jose Escabel, alias Pepe, Antonio Bededia, alias Toning, John Doe, alias Sommy Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and Casimiro having waived their right to a preliminary investigation, the case, insofar as they are concerned, was forwarded to the Court of First Instance of Bataan, where the corresponding information was filed. As subsequently amended, by the inclusion, as defendants therein, of Antonio Bededia alias Toning, Domingo Flores alias Eko, Ben de la Cruz, Jose Escabel alias Pepe, Apolinario Satimbre, Carlito Veloso and Paul Doe, it is alleged in said information: . That on or about 1:00 o'clock in the early morning of October 1, 1956, in the Municipality of Hermosa, Province of Bataan, Philippines, and within the jurisdiction of this Honorable Court, the herein accused Bonifacio Malana, Nicanor Napolis, Ben de la Cruz, Mauricio Anila, Alias Mori, Jose Escabel, Alias Pepe, Antonio Bededia, alias Toning, John Doe, Alias Sommy Casimiro, Apolinario Satimbre, Carlito Veloso, Domingo Flores, Alias Eko and Paul Doe, by conspiring, confederating and helping one another, with the intent to gain and armed with a Grease Gun, Three (3) caliber .45 pistols

and two (2) revolvers, did then and there willfully, unlawfully and feloniously, entered the dwelling of the spouses IGNACIO PEÑAFLOR and CASIMIRA L. PEÑAFLOR by boring a hole under the sidewall of the ground floor of the house and once inside, attack, assault and hit Ignacio Peñaflor with the handle of the Grease Gun causing him to fall on the ground and rendering him unconscious, tied his hands and feet and then leave him; that the same accused approached Casimira L. Peñaflor , threatened her at gun point and demanded money; that the same accused while inside the said house searched and ransacked the place and take and carry away the following cash money and articles belonging to said spouses Ignacio Peñaflor and Casimira L. Peñaflor , to wit: P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante) valued at P350.00, One (1) licensed Commando Colt Revolver, Serial No. 532132 and One (1) Flashlight, valued at P7.00, to the damage and prejudice of said spouses in the total sum of TWO THOUSAND FIVE HUNDRED FIFTY-SEVEN PESOS, (P2,557.00) Philippine Currency.". At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and Flores,1 the evidence for the prosecution consisted of the testimony of the offended parties, Ignacio Peñaflor and his wife Casimira Lagman Peñaflor , Provincial Fiscal Eleno L. Kahayon, Clerk of Court Pedro Aldea, Deputy Clerk of Court Eulogio C. Mina, Delfin Lapid, the Chief of Police of Hermosa, Bataan, and Lt. Luis Sacramento of the Constabulary and the affidavits, Exhibits A, B and C of defendants Napolis, Satimbre and Malana, respectively, admitting their participation in the commission of the crime charged. Mr. and Mrs. Peñaflor testified mainly on the robbery involved in the charge, whereas Fiscal Kahayon narrated the circumstances under which the affidavit Exhibit A was subscribed and sworn to before him by appellant Napolis; Police Chief Lapid and Lt. Sacramento dwelt on the investigations conducted by them and the circumstances under which said defendants made their aforementioned affidavits; and Clerk of Court Pedro Aldea and Deputy Clerk of Court Eulogio C. Mina explained how Exhibits B and C were subscribed and sworn to before them by defendants Satimbre and Malana, respectively. Upon the other hand, Napolis tried to establish an alibi. Testifying in his own defense, he would have Us believe that on October 1, 1956, he was in his house in Olongapo, Zambales, because of a tooth extracted from him by one Dr. Maginas. Defendant Satimbre, in turn, introduced his own testimony and that of his wife Engracia Mendoza. Satimbre claimed to be innocent of the crime charged and said that, although reluctant to sign Exhibit B, he eventually signed thereon, upon the advice of his wife Engracia Mendoza — who sought to corroborate him — and Mayor Guillermo Arcenas of Hermosa, in order that he may not be implicated in a robbery that took place in Balanga, Bataan, and that he could be sent back to his hometown, Hermosa, Bataan. Before the conclusion of the trial, the court of first instance of Bataan dismissed the case as against defendants Flores, Anila, Casimiro and De la Cruz. In due course, said court convicted Nicanor Napolis, Bonifacio Malana and Apolinario Satimbre, as above indicated. Said defendants appealed to the Court of Appeals which, however, dismissed Malana's appeal,

and affirmed the decision of the Court of First Instance, insofar as Napolis and Satimbre are concerned. Satimbre did not appeal from said decision of the Court of Appeals, whereas Napolis alleges that said court has erred — . I. In affirming in toto the conviction of petitioner herein, of the crime charged based upon a lurking error of identity. II. In affirming the conviction of petitioner based upon an extra-judicial confession extracted through duress. III. In affirming the decision of the court a quo based upon the evidence on record adduced during the trial. IV. In deciding the case not in accordance with the provision of law and jurisprudence on the matter. Under the first assignment of error, it is urged that appellant has not been sufficiently identified as one of those who perpetrated the crime charged. In support of this contention, it is argued that the identification made by Mrs. Peñaflor was due to a picture of appellant taken by Lt. Sacramento from the files of the police in Olongapo, Zambales, and then shown to her, before he (appellant) was apprehended and then brought to her presence for identification. It is thus implied that Mrs. Peñaflor identified him in consequence of the suggestion resulting from the picture she had seen before he was taken to her for said purpose. The defense further alleges that she could not have recognized appellant herein, in the evening of the occurrence, because the same was dark, and the flashlight used by the malefactors was then focused downward. Appellant's pretense is, however, devoid of factual basis. The record shows that the authorities were notified immediately after the occurrence; that, soon after, peace officers — Police Chief Lapid and PC Lt. Sacramento — repaired to the house of Mr. and Mrs. Peñaflor and investigated them; that based upon the description given by Mrs. Peñaflor , one individual was apprehended and then presented to Mrs. Peñaflor , who said that he was not one of the thieves; that another person subsequently arrested and taken to Mrs. Peñaflor was, similarly, exonerated by her; that in the course of the investigation conducted by the Philippine Constabulary, Lt. Sacramento later brought Mrs. Peñaflor to the offices of the police force in Olongapo and showed her the pictures of police characters on file therein; that among those pictures, she noticed that of appellant herein, who, she believed, was one of the culprits; and that appellant was, therefore, arrested and brought to Mrs. Peñaflor , who positively identified him as one of the malefactors. In other words, Lt. Sacramento did not suggest to Mrs. Peñaflor , through the aforementioned picture of appellant, that he was one of the thieves. It was she who told Lt. Sacramento that said picture was that of one of the thieves. Besides, the fact that Mrs. Peñaflor readily exonerated the first two suspects, arrested by the authorities, shows that appellant herein would not have been identified by her if she were not reasonably certain about it.

Then, again, she had ample opportunity to recognize appellant herein because it was he who demanded money from her and to whom she delivered P2,000 in cash and two (2) rings worth P350; it was, also, he who opened and ransacked her wardrobe; and it was he who tied her hands and those of her two sons. These series of acts, performed in her presence, consumed sufficient time — from 10 to 20 minutes — to allow her eyesight to be adjusted to existing conditions, and, hence, to recognize some of the robbers. The night was dark; but, there were two flashlights switched on, namely, that of her husband, and the one used by the thieves. Although the latter was, at times, focused downward, it had to be aimed, sometimes, in another direction, particularly when the money and rings were delivered to appellant herein, and when he opened and ransacked the wardrobe of Mrs. Peñaflor . Lastly, her testimony was confirmed by other circumstances presently to be mentioned, in connection with the consideration of the other alleged errors pointed out by appellant herein. The second assignment of error is based upon a wrong premise — that appellant's conviction was based upon his extra-judicial confession and that the same had been made under duress. Said extra-judicial confession was merely one of the factors considered by His Honor, the trial Judge, and the Court of Appeals in concluding that the evidence for the defense cannot be relied upon and that the witnesses for the prosecution had told the truth. Besides, appellant's confession was not tainted with duress. In this connection, the Court of Appeals had the following to say: . Apart from the reliability of Mrs. Casimira Lagman Peñaflor 's identification, we have the extra-judicial confession of appellant Nicanor Napolis, marked Exh. A, subscribed and sworn to by said accused on October 26, 1956, 25 days after the occurrence, before Provincial Fiscal Eleno L. Kahayon, the 64-year old prosecutor who, since July 18, 1946, was the Provincial Fiscal of Bataan up to the present. His testimony shows that he read the confession, Exh. A, to said accused in the Tagalog dialect; asked him whether he understood it to which appellant Napolis answered "yes"; inquired whether he was coerced to which he replied "No"; and then, required him to raise his hand in affirmation which he did (tsn. 14-15, I). Thereupon, appellant Napolis signed the confession in his (Fiscal's) presence. Provincial Fiscal Eleno L. Kahayon further testified that he saw no signs of physical violence on the person of the appellant who appeared normal in his appearance (tsn. 15, I). In this confession, Exh. A, appellant Napolis related that it was co-accused Antonio Bededia (still-at-large) who pointed the greasegun to husband Ignacio Peñaflor and who hit him (Peñaflor ) on the head and that it was co-accused Ben de la Cruz (whose case was dismissed) who wrested Peñaflor 's revolver. For his part, appellant Napolis admitted that it was he who talked to Mrs. Casimira L. Peñaflor and it was he who got the money bag. The loot, according to him, was split from which he received a share of P237.00 (Answer to Q. A, Exh. A). Among others, he mentioned appellant Bonifacio Malana as the owner of the greasegun and the one who got Peñaflor 's revolver from the hands of co-accused Ben de la Cruz. ... . It may not be amiss to advert to the fact that, on appeal from a decision of the Court of Appeals, the findings of fact made in said decision are final, except — .

(1) When the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. 2 and that the case at bar does not fall under any of the foregoing exceptions. The third assignment of error is predicated upon the theory that the evidence for the prosecution is contradictory and, hence, unworthy of credence. Counsel for the defense alleges that, whereas Ignacio Peñaflor said that the thieves had entered his house by forcing its door open, Mrs. Peñaflor testified that their entry was effected through an excavation by the side of the house, and the chief of police affirmed that the malefactors had removed a piece of wood and an adobe stone to get into said house. No such contradictions, however, exist. The house of Mr. and Mrs. Peñaflor consisted of two (2) parts, one of which was a store and the other the dwelling proper, adjoining the store, which had a door leading thereto (to the dwelling proper). Mrs. Peñaflor testified that the culprits had entered the store by removing an adobe stone from a wall thereof, and this was corroborated by the chief of police, although he added that the malefactors had, also, removed a piece of wood from said wall. Upon the other hand, the testimony of Mr. Peñaflor referred to a door, inside the store, leading to the dwelling proper, as distinguished from the store. In the light of the foregoing, and considering that the findings of fact made by the Court of Appeals are supported by those of His Honor, the trial Judge, who had observed the behaviour of the witnesses during the trial, it is clear to Us that the first three (3) assignments of error are untenable. The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. It should be noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis, Malana and Satimbre of the crime of robbery committed by armed persons, in an inhabited house, entry therein having been made by breaking a wall, as provided in Article 299 (a) of the Revised Penal Code, and, accordingly, sentencing Napolis and Satimbre to an indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, which is in accordance with said legal provision. In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peñaflor , and intimidation against his wife, thereby infringing Article 294 of the same Code, under conditions falling under sub-paragraph (5) of said article, which prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period, which is lighter than that prescribed in said Article 299, although, factually, the crime committed is more serious than that covered by the latter provision. This Court had previously ruled — . ... that where robbery, though committed in an inhabited house, is characterized by intimidation, this factor "supplies the controlling qualification," so that the law to apply is article 294 and not article 299 of the Revised Penal Code. This is on the theory that "robbery which is characterized by violence or intimidation against the person is

evidently graver than ordinary robbery committed by force upon things, because where violence or intimidation against the person is present there is greater disturbance of the order of society and the security of the individual." (U.S. vs. Turla, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89.) And this view is followed even where, as in the present case, the penalty to be applied under article 294 is lighter than that which would result from the application of article 299. ... . 3 Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, by breaking a wall, enters, with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence against or intimidation upon persons, is punishable under Art. 299 of the Revised Penal Code with reclusion temporal.4 Pursuant to the above view, adhered to in previous decision,5 if, aside from performing said acts, the thief lays hand upon any person, without committing any of the crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty -- under paragraph (5) thereof -- shall be much lighter.6 To our mind, this result and the process of reasoning that has brought it about, defy logic and reason. The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from sufficient to justify said result. We agree with the proposition that robbery with "violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things," but, precisely, for this reason, We cannot accept the conclusion deduced therefrom in the cases above cited — reductionof the penalty for the latter offense owing to the concurrence of violence or intimidation which made it a more serious one. It is, to our mind, more plausible to believe that Art. 294 applies only where robbery with violence against or intimidation of person takes place without entering an inhabited house, under the conditions set forth in Art. 299 of the Revised Penal Code. We deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that the crime is a complex one, calling for the imposition -- as provided in Art. 48 of said Code -of the penalty for the most serious offense, in its maximum period, which, in the case at bar, is reclusion temporal in its maximum period. This penalty should, in turn, be imposed in its maximum period -- from nineteen (19) years, one (1) month and eleven (11) days to twenty (20) years of reclusion temporal — owing to the presence of the aggravating circumstances of nighttime. In short, the doctrine adopted in U.S. v. De los Santos7 and applied in U.S. v. Manansala,8 U.S. v. Turla,9 People v. Baluyot, 10 Manahan v. People, 11 and People v. Sebastian, 12 is hereby abandoned and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years, and one (1) day of prision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal. Thus modified as to the penalty, the decision of the Court of Appeals is hereby affirmed in all other respects, with costs against herein appellant, Nicanor Napolis. It is so ordered. Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur. Makasiar, J., took part.

18. PP V TINO 19. PP V AGOMUO 20. G.R. No. 107898 December 19, 1995 MANUEL LIM and ROSITA LIM, petitioners, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.: MANUEL LIM and ROSITA LIM, spouses, were charged before the Regional Trial Court of Malabon with estafa on three (3) counts under Art. 315, par. 2 (d), of The Revised Penal Code, docketed as Crim. Cases Nos. 1696-MN to 1698-MN. The Informations substantially alleged that Manuel and Rosita, conspiring together, purchased goods from Linton Commercial Company, Inc. (LINTON), and with deceit issued seven Consolidated Bank and Trust Company (SOLIDBANK) checks simultaneously with the delivery as payment therefor. When presented to the drawee bank for payment the checks were dishonored as payment on the checks had been stopped and/or for insufficiency of funds to cover the amounts. Despite repeated notice and demand the Lim spouses failed and refused to pay the checks or the value of the goods. On the basis of the same checks, Manuel and Rosita Lim were also charged with seven (7) counts of violation of B.P. Blg. 22, otherwise known as the Bouncing Checks Law, docketed as Crim. Cases Nos. 1699-MN to 1705-MN. In substance, the Informations alleged that the Lims issued the checks with knowledge that they did not have sufficient funds or credit with the drawee bank for payment in full of such checks upon presentment. When presented for payment within ninety (90) days from date thereof the checks were dishonored by the drawee bank for insufficiency of funds. Despite receipt of notices of such dishonor the Lims failed to pay the amounts of the checks or to make arrangements for full payment within five (5) banking days. Manuel Lim and Rosita Lim are the president and treasurer, respectively, of Rigi Bilt Industries, Inc. (RIGI). RIGI had been transacting business with LINTON for years, the latter supplying the former with steel plates, steel bars, flat bars and purlin sticks which it uses in the fabrication, installation and building of steel structures. As officers of RIGI the Lim spouses were allowed 30, 60 and sometimes even up to 90 days credit. On 27 May 1983 the Lims ordered 100 pieces of mild steel plates worth P51,815.00 from LINTON which were delivered on the same day at their place of business at 666 7th Avenue, 8th Street, Kalookan City. To pay LINTON for the delivery the Lims issued SOLIDBANK Check No. 027700 postdated 3 September 1983 in the amount of P51,800.00.1

On 30 May 1983 the Lims ordered another 65 pieces of mild steel plates worth P63,455.00 from LINTON which were delivered at their place of business on the same day. They issued as payment SOLIDBANK Check No. 027699 in the amount of P63,455.00 postdated 20 August 1983. 2 The Lim spouses also ordered 2,600 "Z" purlins worth P241,800.00 which were delivered to them on various dates, to wit: 15 and 22 April 1983; 11, 14, 20, 23, 25, 28 and 30 May 1983; and, 2 and 9 June 1983. To pay for the deliveries, they issued seven SOLIDBANK checks, five of which were — Check No. Date of Issue Amount 027683 16 July 1983 P27,900.00 3 027684 23 July 1983 P27,900.00 4 027719 6 Aug. 1983 P32,550.005 027720 13 Aug. 1983 P27,900.00 6 027721 27 Aug. 1983 P37,200.00 7 William Yu Bin, Vice President and Sales Manager of LINTON, testified that when those seven (7) checks were deposited with the Rizal Commercial Banking Corporation they were dishonored for "insufficiency of funds" with the additional notation "payment stopped" stamped thereon. Despite demand Manuel and Rosita refused to make good the checks or pay the value of the deliveries. Salvador Alfonso, signature verifier of SOLIDBANK, Grace Park Branch, Kalookan City, where the Lim spouses maintained an account, testified on the following transactions with respect to the seven (7) checks: CHECK NO. DATE PRESENTED REASON FOR DISHONOR 027683 22 July 1983 Payment Stopped (PS)8 027684 23 July 1983 PS and Drawn Against Insufficient Fund (DAIF)9 027699 24 Aug. 1983 PS and DAIF10 027700 5 Sept. 1983 PS and DAIF11 027719 9 Aug. 1983 DAIF 12 027720 16 Aug. 1983 PS and DAIF13 027721 30 Aug. 1983 PS and DAIF14 Manuel Lim admitted having issued the seven (7) checks in question to pay for deliveries made by LINTON but denied that his company's account had insufficient funds to cover the amounts of the checks. He presented the bank ledger showing a balance of P65,752.75. Also, he claimed that he ordered SOLIDBANK to stop payment because the supplies delivered by LINTON were not in accordance with the specifications in the purchase orders. Rosita Lim was not presented to testify because her statements would only be corroborative.

On the basis of the evidence thus presented the trial court held both accused guilty of estafa and violation of B.P. Blg. 22 in its decision dated 25 January 1989. In Crim. Case No. 1696-MN they were sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum plus one (1) year for each additional P10,000.00 with all the accessory penalties provided for by law, and to pay the costs. They were also ordered to indemnify LINTON in the amount of P241,800.00. Similarly sentences were imposed in Crim. Cases Nos. 1697-MN and 1698-MN except as to the indemnities awarded, which were P63,455.00 and P51,800.00, respectively. In Crim. Case No. 1699-MN the trial court sentenced both accused to a straight penalty of one (1) year imprisonment with all the accessory penalties provided for by law and to pay the costs. In addition, they were ordered to indemnify LINTON in the amount of P27,900.00. Again, similar sentences were imposed in Crim. Cases Nos. 1700-MN to 1705-MN except for the indemnities awarded, which were P32,550.00, P27,900.00, P27,900.00, P63,455.00, P51,800.00 and P37,200.00 respectively. 15 On appeal, the accused assailed the decision as they imputed error to the trial court as follows: (a) the regional Trial Court of malabon had no jurisdiction over the cases because the offenses charged ere committed outside its territory; (b) they could not be held liable for estafa because the seven (7) checks were issued by them several weeks after the deliveries of the goods; and, (c) neither could they be held liable for violating B.P. Blg. 22 as they ordered payment of the checks to be stopped because the goods delivered were not those specified by them, besides they had sufficient funds to pay the checks. In the decision of 18 September 199216 respondent Court of Appeals acquitted accused-appellants of estafa on the ground that indeed the checks were not made in payment of an obligation contracted at the time of their issuance. However it affirmed the finding of the trial court that they were guilty of having violated B.P. Blg. 22.17 On 6 November 1992 their motion for reconsideration was denied. 18 In the case at bench petitioners maintain that the prosecution failed to prove that any of the essential elements of the crime punishable under B.P. Blg. 22 was committed within the jurisdiction of the Regional Trial Court of Malabon. They claim that what was proved was that all the elements of the offense were committed in Kalookan City. The checks were issued at their place of business, received by a collector of LINTON, and dishonored by the drawee bank, all in Kalookan City. Furthermore, no evidence whatsoever supports the proposition that they knew that their checks were insufficiently funded. In fact, some of the checks were funded at the time of presentment but dishonored nonetheless upon their instruction to the bank to stop payment. In fine, considering that the checks were all issued, delivered, and dishonored in Kalookan City, the trial court of Malabon exceeded its jurisdiction when it tried the case and rendered judgment thereon. The petition has no merit. Section 1, par. 1, of B.P. Blg. 22 punishes "[a]ny person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment . . ." The gravamen of the offense is knowingly issuing a worthless check.19 Thus, a fundamental element is knowledge on the part of the drawer of the insufficiency of his

funds in20 or credit with the drawee bank for the payment of such check in full upon presentment. Another essential element is subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.21 It is settled that venue in criminal cases is a vital ingredient of jurisdiction. 22 Section 14, par. (a), Rule 110, of the Revised Rules of Court, which has been carried over in Sec. 15, par. (a), Rule 110 of the 1985 Rules on Criminal Procedure, specifically provides: Sec. 14. Place where action is to be instituted. — (a) In all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or anyone of the essential ingredients thereof took place. If all the acts material and essential to the crime and requisite of its consummation occurred in one municipality or territory, the court therein has the sole jurisdiction to try the case. 23 There are certain crimes in which some acts material and essential to the crimes and requisite to their consummation occur in one municipality or territory and some in another, in which event, the court of either has jurisdiction to try the cases, it being understood that the first court taking cognizance of the case excludes the other. 24 These are the so-called transitory or continuing crimes under which violation of B.P. Blg. 22 is categorized. In other words, a person charged with a transitory crime may be validly tried in any municipality or territory where the offense was in part committed.25 In determining proper venue in these cases, the following acts material and essential to each crime and requisite to its consummation must be considered: (a) the seven (7) checks were issued to LINTON at its place of business in Balut, Navotas; b) they were delivered to LINTON at the same place; (c) they were dishonored in Kalookan City; and, (d) petitioners had knowledge of the insufficiency of their funds in SOLIDBANK at the time the checks were issued. Since there is no dispute that the checks were dishonored in Kalookan City, it is no longer necessary to discuss where the checks were dishonored. Under Sec. 191 of the Negotiable Instruments Law the term "issue" means the first delivery of the instrument complete in form to a person who takes it as a holder. On the other hand, the term "holder" refers to the payee or indorsee of a bill or note who is in possession of it or the bearer thereof. In People v. Yabut26 this Court explained — . . . The place where the bills were written, signed, or dated does not necessarily fix or determine the place where they were executed. What is of decisive importance is the delivery thereof. The delivery of the instrument is the final act essential to its consummation as an obligation. An undelivered bill or note is inoperative. Until delivery, the contract is revocable. And the issuance as well as the delivery of the check must be to a person who takes it as a holder, which means "(t)he payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof." Delivery of the check signifies transfer of possession, whether actual or constructive, from one person to another with intent to transfer titlethereto . . .

Although LINTON sent a collector who received the checks from petitioners at their place of business in Kalookan City, they were actually issued and delivered to LINTON at its place of business in Balut, Navotas. The receipt of the checks by the collector of LINTON is not the issuance and delivery to the payee in contemplation of law. The collector was not the person who could take the checks as a holder, i.e., as a payee or indorsee thereof, with the intent to transfer title thereto. Neither could the collector be deemed an agent of LINTON with respect to the checks because he was a mere employee. As this Court further explained in People v. Yabut27 — Modesto Yambao's receipt of the bad checks from Cecilia Que Yabut or Geminiano Yabut, Jr., in Caloocan City cannot, contrary to the holding of the respondent Judges, be licitly taken as delivery of the checks to the complainant Alicia P. Andan at Caloocan City to fix the venue there. He did not take delivery of the checks as holder, i.e., as "payee" or "indorsee." And there appears to be no contract of agency between Yambao and Andan so as to bind the latter for the acts of the former. Alicia P. Andan declared in that sworn testimony before the investigating fiscal that Yambao is but her "messenger" or "part-time employee." There was no special fiduciary relationship that permeated their dealings. For a contract of agency to exist, the consent of both parties is essential. The principal consents that the other party, the agent, shall act on his behalf, and the agent consents so as to act. It must exist as afact. The law makes no presumption thereof. The person alleging it has the burden of proof to show, not only the fact of its existence, but also its nature and extent . . . Section 2 of B.P. Blg. 22 establishes a prima facie evidence of knowledge of insufficient funds as follows — The making, drawing and issuance of a check payment of which is refused by the bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangement for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. The prima facie evidence has not been overcome by petitioners in the cases before us because they did not pay LINTON the amounts due on the checks; neither did they make arrangements for payment in full by the drawee bank within five (5) banking days after receiving notices that the checks had not been paid by the drawee bank. In People v. Grospe28 citing People v. Manzanilla29 we held that ". . . knowledge on the part of the maker or drawer of the check of the insufficiency of his funds is by itself a continuing eventuality, whether the accused be within one territory or another." Consequently, venue or jurisdiction lies either in the Regional Trial Court of Kalookan City or Malabon. Moreover, we ruled in the same Grospe and Manzanilla cases as reiterated in Lim v. Rodrigo30 that venue or jurisdiction is determined by the allegations in the Information. The Informations in the cases under

consideration allege that the offenses were committed in the Municipality of Navotas which is controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Malabon. 31 We therefore sustain likewise the conviction of petitioners by the Regional Trial Court of Malabon for violation of B.P. Blg. 22 thus — Accused-appellants claim that they ordered payment of the checks to be stopped because the goods delivered were not those specified by them. They maintain that they had sufficient funds to cover the amount of the checks. The records of the bank, however, reveal otherwise. The two letters (Exhs. 21 and 22) dated July 23, and August 10, 1983 which they claim they sent to Linton Commercial, complaining against the quality of the goods delivered by the latter, did not refer to the delivery of mild steel plates (6mm x 4 x 8) and "Z" purlins (16 x 7 x 2-1/2 mts) for which the checks in question were issued. Rather, the letters referred to B.1. Lally columns (Sch. #20), which were the subject of other purchase orders. It is true, as accused-appellants point out, that in a case brought by them against the complainant in the Regional Trial Court of Kalookan City (Civil Case No. C-10921) the complainant was held liable for actual damages because of the delivery of goods of inferior quality (Exh. 23). But the supplies involved in that case were those of B.I. pipes, while the purchases made by accused-appellants, for which they issued the checks in question, were purchases of mild steel plates and "Z" purlins. Indeed, the only question here is whether accused-appellants maintained funds sufficient to cover the amounts of their checks at the time of issuance and presentment of such checks. Section 3 of B.P. Blg. 22 provides that "notwithstanding receipt of an order to stop payment, the drawee bank shall state in the notice of dishonor that there were no sufficient funds in or credit with such bank for the payment in full of the check, if such be the fact." The purpose of this provision is precisely to preclude the maker or drawer of a worthless check from ordering the payment of the check to be stopped as a pretext for the lack of sufficient funds to cover the check. In the case at bar, the notice of dishonor issued by the drawee bank, indicates not only that payment of the check was stopped but also that the reason for such order was that the maker or drawer did not have sufficient funds with which to cover the checks. . . . Moreover, the bank ledger of accused-appellants' account in Consolidated Bank shows that at the time the checks were presented for encashment, the balance of accusedappellants' account was inadequate to cover the amounts of the checks.32 . . . WHEREFORE, the decision of the Court of Appeals dated 18 September 1992 affirming the conviction of petitioners Manuel Lim and Rosita Lim —

In CA-G.R. CR No. 07277 (RTC Crim. Case No. 1699-MN); CA-G.R. CR No. 07278 (RTC Crim. Case No. 1700-MN); CA-G.R. CR No. 07279 (RTC Crim. Case No. 1701MN); CA-G.R. CR No. 07280 (RTC Crim. Case No. 1702-MN); CA-G.R. CR No. 07281 (RTC Crim. Case No. 1703-MN); CA-G.R. CA No. 07282 (RTC Crim. Case No. 1704MN); and CA-G.R. CR No. 07283 (RTC Crim Case No. 1705-MN), the Court finds the accused-appellants MANUEL LIM and ROSITA LIM guilty beyond reasonable doubt of violation of Batas Pambansa Bilang 22 and are hereby sentenced to suffer a STRAIGHT PENALTY OF ONE (1) YEAR IMPRISONMENT in each case, together with all the accessory penalties provided by law, and to pay the costs. In CA-G.R. CR No. 07277 (RTC Crim. Case No. 1699-MN), both accused-appellants are hereby ordered to indemnify the offended party in the sum of P27,900.00. In CA-G.R. CR No. 07278 (RTC Crim. Case No. 1700-MN) both accused-appellants are hereby ordered to indemnify the offended party in the sum of P32,550.00. In CA-G.R. CR No. 07278 (RTC Crim. Case No. 1701-MN) both accused-appellants are hereby ordered to indemnify the offended party in the sum of P27,900.00. In CA-G.R. CR No. 07280 (RTC Crim. Case No. 1702-MN) both accused-appellants are hereby ordered to indemnify the offended party in the sum of P27,900.00. In CA-G.R. CR No. 07281 (RTC Crim. Case No. 1703-MN) both accused are hereby ordered to indemnify the offended party in the sum of P63,455.00. In CA-G.R CR No. 07282 (RTC Crim. Case No. 1704-MN) both accused-appellants are hereby ordered to indemnify the offended party in the sum of P51,800.00, and In CA-G.R. CR No. 07283 (RTC Crim. Case No. 1705-MN) both accused-appellants are hereby ordered to indemnify the offended party in the sum of P37,200.00 33 — as well as its resolution of 6 November 1992 denying reconsideration thereof, is AFFIRMED. Costs against petitioners. SO ORDERED. Padilla, Davide, Jr., Kapunan and Hermosisima, Jr., JJ., concur.

21. G.R. No. 130423

November 18, 2002

VIRGIE SERONA, petitioner, vs. HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

and with intent to defraud, did then and there willfully, unlawfully and feloniously misappropriate and convert the same for her own personal use and benefit and despite oral and written demands, she failed and refused to account for said jewelry or the proceeds of sale thereof, to the damage and prejudice of complainant Leonida E. Quilatan in the aforestated total amount of P567,750.00. CONTRARY TO LAW.5

DECISION Petitioner pleaded not guilty to the charge upon arraignment. 6 Trial on the merits thereafter ensued. YNARES-SANTIAGO, J.: During the period from July 1992 to September 1992, Leonida Quilatan delivered pieces of jewelry to petitioner Virgie Serona to be sold on commission basis. By oral agreement of the parties, petitioner shall remit payment or return the pieces of jewelry if not sold to Quilatan, both within 30 days from receipt of the items. Upon petitioner’s failure to pay on September 24, 1992, Quilatan required her to execute an acknowledgment receipt (Exhibit B) indicating their agreement and the total amount due, to wit: Ako, si Virginia Serona, nakatira sa Mother Earth Subd., Las Pinas, ay kumuha ng mga alahas kay Gng. Leonida Quilatan na may kabuohang halaga na P567,750.00 para ipagbili para ako magkakomisyon at ibibigay ang benta kung mabibili o ibabalik sa kanya ang mga nasabing alahas kung hindi mabibili sa loob ng 30 araw. Las Pinas, September 24, 1992.1 The receipt was signed by petitioner and a witness, Rufina G. Navarette. Unknown to Quilatan, petitioner had earlier entrusted the jewelry to one Marichu Labrador for the latter to sell on commission basis. Petitioner was not able to collect payment from Labrador, which caused her to likewise fail to pay her obligation to Quilatan. Subsequently, Quilatan, through counsel, sent a formal letter of demand 2 to petitioner for failure to settle her obligation. Quilatan executed a complaint affidavit3 against petitioner before the Office of the Assistant Provincial Prosecutor. Thereafter, an information for estafa under Article 315, paragraph 1(b) 4 of the Revised Penal Code was filed against petitioner, which was raffled to Branch 255 of the Regional Trial Court of Las Pinas. The information alleged: That on or about and sometime during the period from July 1992 up to September 1992, in the Municipality of Las Pinas, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused received in trust from the complainant Leonida E. Quilatan various pieces of jewelry in the total value of P567,750.00 to be sold on commission basis under the express duty and obligation of remitting the proceeds thereof to the said complainant if sold or returning the same to the latter if unsold but the said accused once in possession of said various pieces of jewelry, with unfaithfulness and abuse of confidence

Quilatan testified that petitioner was able to remit P100,000.00 and returned P43,000.00 worth of jewelriy;7 that at the start, petitioner was prompt in settling her obligation; however, subsequently the payments were remitted late;8that petitioner still owed her in the amount of P424,750.00.9 On the other hand, petitioner admitted that she received several pieces of jewelry from Quilatan and that she indeed failed to pay for the same. She claimed that she entrusted the pieces of jewelry to Marichu Labrador who failed to pay for the same, thereby causing her to default in paying Quilatan. 10 She presented handwritten receipts (Exhibits 1 & 2)11 evidencing payments made to Quilatan prior to the filing of the criminal case. Marichu Labrador confirmed that she received pieces of jewelry from petitioner worth P441,035.00. She identified an acknowledgment receipt (Exhibit 3)12 signed by her dated July 5, 1992 and testified that she sold the jewelry to a person who absconded without paying her. Labrador also explained that in the past, she too had directly transacted with Quilatan for the sale of jewelry on commission basis; however, due to her outstanding account with the latter, she got jewelry from petitioner instead. 13 On November 17, 1994, the trial court rendered a decision finding petitioner guilty of estafa, the dispositive portion of which reads: WHEREFORE, in the light of the foregoing, the court finds the accused Virgie Serona guilty beyond reasonable doubt, and as the amount misappropriated is P424,750.00 the penalty provided under the first paragraph of Article 315 of the Revised Penal Code has to be imposed which shall be in the maximum period plus one (1) year for every additional P10,000.00. Applying the Indeterminate Sentence Law, the said accused is hereby sentenced to suffer the penalty of imprisonment ranging from FOUR (4) YEARS and ONE (1) DAY of prision correccional as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor as maximum; to pay the sum of P424,750.00 as cost for the unreturned jewelries; to suffer the accessory penalties provided by law; and to pay the costs. SO ORDERED.14 Petitioner appealed to the Court of Appeals, which affirmed the judgment of conviction but modified the penalty as follows:

WHEREFORE, the appealed decision finding the accused-appellant guilty beyond reasonable doubt of the crime of estafa is hereby AFFIRMED with the following MODIFICATION:

offender.18 While the first, third and fourth elements are concededly present, we find the second element of misappropriation or conversion to be lacking in the case at bar.

Considering that the amount involved is P424,750.00, the penalty should be imposed in its maximum period adding one (1) year for each additional P10,000.00 albeit the total penalty should not exceed Twenty (20) Years (Art. 315). Hence, accused-appellant is hereby SENTENCED to suffer the penalty of imprisonment ranging from Four (4) Years and One (1) Day of Prision Correccional as minimum to Twenty (20) Years of Reclusion Temporal.

Petitioner did not ipso facto commit the crime of estafa through conversion or misappropriation by delivering the jewelry to a sub-agent for sale on commission basis. We are unable to agree with the lower courts’ conclusion that this fact alone is sufficient ground for holding that petitioner disposed of the jewelry "as if it were hers, thereby committing conversion and a clear breach of trust." 19

SO ORDERED.15 Upon denial of her motion for reconsideration,16 petitioner filed the instant petition under Rule 45, alleging that: I RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN CONCLUDING THAT THERE WAS AN ABUSE OF CONFIDENCE ON THE PART OF PETITIONER IN ENTRUSTING THE SUBJECT JEWELRIES (sic) TO HER SUB-AGENT FOR SALE ON COMMISSION TO PROSPECTIVE BUYERS. II RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN CONCLUDING THAT THERE WAS MISAPPROPRIATION OR CONVERSION ON THE PART OF PETITIONER WHEN SHE FAILED TO RETURN THE SUBJECT JEWELRIES (sic) TO PRIVATE COMPLAINANT. 17 Petitioner argues that the prosecution failed to establish the elements of estafa as penalized under Article 315, par. 1(b) of the Revised Penal Code. In particular, she submits that she neither abused the confidence reposed upon her by Quilatan nor converted or misappropriated the subject jewelry; that her giving the pieces of jewelry to a sub-agent for sale on commission basis did not violate her undertaking with Quilatan. Moreover, petitioner delivered the jewelry to Labrador under the same terms upon which it was originally entrusted to her. It was established that petitioner had not derived any personal benefit from the loss of the jewelry. Consequently, it cannot be said that she misappropriated or converted the same. We find merit in the petition. The elements of estafa through misappropriation or conversion as defined in Article 315, par. 1(b) of the Revised Penal Code are: (1) that the money, good or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (3) that such misappropriation or conversion or denial is to the prejudice of another; and (4) that there is a demand made by the offended party on the

It must be pointed out that the law on agency in our jurisdiction allows the appointment by an agent of a substitute or sub-agent in the absence of an express agreement to the contrary between the agent and the principal.20 In the case at bar, the appointment of Labrador as petitioner’s sub-agent was not expressly prohibited by Quilatan, as the acknowledgment receipt, Exhibit B, does not contain any such limitation. Neither does it appear that petitioner was verbally forbidden by Quilatan from passing on the jewelry to another person before the acknowledgment receipt was executed or at any other time. Thus, it cannot be said that petitioner’s act of entrusting the jewelry to Labrador is characterized by abuse of confidence because such an act was not proscribed and is, in fact, legally sanctioned. The essence of estafa under Article 315, par. 1(b) is the appropriation or conversion of money or property received to the prejudice of the owner. The words "convert" and "misappropriated" connote an act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right. 21 In the case at bar, it was established that the inability of petitioner as agent to comply with her duty to return either the pieces of jewelry or the proceeds of its sale to her principal Quilatan was due, in turn, to the failure of Labrador to abide by her agreement with petitioner. Notably, Labrador testified that she obligated herself to sell the jewelry in behalf of petitioner also on commission basis or to return the same if not sold. In other words, the pieces of jewelry were given by petitioner to Labrador to achieve the very same end for which they were delivered to her in the first place. Consequently, there is no conversion since the pieces of jewelry were not devoted to a purpose or use different from that agreed upon. Similarly, it cannot be said that petitioner misappropriated the jewelry or delivered them to Labrador "without right." Aside from the fact that no condition or limitation was imposed on the mode or manner by which petitioner was to effect the sale, it is also consistent with usual practice for the seller to necessarily part with the valuables in order to find a buyer and allow inspection of the items for sale. In People v. Nepomuceno,22 the accused-appellant was acquitted of estafa on facts similar to the instant case. Accused-appellant therein undertook to sell two diamond rings in behalf of the complainant on commission basis, with the obligation to return the same in a few days if not sold. However, by reason of the fact that the rings were delivered also for sale on commission to sub-agents who failed to account for the rings or the proceeds of its sale, accused-appellant likewise failed to make good his obligation to the complainant thereby giving rise to the charge of estafa. In absolving the accused-appellant of the crime charged, we held:

Where, as in the present case, the agents to whom personal property was entrusted for sale, conclusively proves the inability to return the same is solely due to malfeasance of a subagent to whom the first agent had actually entrusted the property in good faith, and for the same purpose for which it was received; there being no prohibition to do so and the chattel being delivered to the subagent before the owner demands its return or before such return becomes due, we hold that the first agent can not be held guilty of estafa by either misappropriation or conversion. The abuse of confidence that is characteristic of this offense is missing under the circumstances.23 Accordingly, petitioner herein must be acquitted. The lower courts’ reliance on People v. Flores 24 and U.S. v. Panes25 to justify petitioner’s conviction is misplaced, considering that the factual background of the cited cases differ from those which obtain in the case at bar. In Flores, the accused received a ring to sell under the condition that she would return it the following day if not sold and without authority to retain the ring or to give it to a sub-agent. The accused in Panes, meanwhile, was obliged to return the jewelry he received upon demand, but passed on the same to a sub-agent even after demand for its return had already been made. In the foregoing cases, it was held that there was conversion or misappropriation. Furthermore, in Lim v. Court of Appeals,26 the Court, citing Nepomuceno and the case of People v. Trinidad,27 held that: In cases of estafa the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in permitting another to take advantage or benefit from the entrusted chattel cannot constitute estafa under Article 315, paragraph 1-b, of the Revised Penal Code; unless of course the evidence should disclose that the agent acted in conspiracy or connivance with the one who carried out the actual misappropriation, then the accused would be answerable for the acts of his co-conspirators. If there is no such evidence, direct or circumstantial, and if the proof is clear that the accused herself was the innocent victim of her sub-agent’s faithlessness, her acquittal is in order.28 (Italics copied) Labrador admitted that she received the jewelry from petitioner and sold the same to a third person. She further acknowledged that she owed petitioner P441,035.00, thereby negating any criminal intent on the part of petitioner. There is no showing that petitioner derived personal benefit from or conspired with Labrador to deprive Quilatan of the jewelry or its value. Consequently, there is no estafa within contemplation of the law. Notwithstanding the above, however, petitioner is not entirely free from any liability towards Quilatan. The rule is that an accused acquitted of estafa may nevertheless be held civilly liable where the facts established by the evidence so warrant. Then too, an agent who is not prohibited from appointing a sub-agent but does so without express authority is responsible for the acts of the sub-agent.29 Considering that the civil action for the recovery of civil liability arising from the offense is deemed instituted with the criminal action,30 petitioner is liable to pay complainant Quilatan the value of the unpaid pieces of jewelry. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G.R. CR No. 17222 dated April 30,1997 and its resolution dated August 28, 1997 are REVERSED and SET ASIDE. Petitioner Virgie Serona is ACQUITTED of the crime charged, but is held civilly liable in the amount of P424,750.00 as actual damages, plus legal interest, without subsidiary imprisonment in case of insolvency.

SO ORDERED. Davide, Jr., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

22. G.R. No. L-63419 December 18, 1986 FLORENTINA A. LOZANO, petitioner, vs. THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch XX, Manila, and the HONORABLE JOSE B. FLAMINIANO, in his capacity as City Fiscal of Manila, respondents. G.R. No. L-66839-42 December 18, 1986 LUZVIMINDA F. LOBATON petitioner, vs. HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding Executive Judge, Branch V, Region IV, Regional Trial Court, sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF BATANGAS, and MARIA LUISA TORDECILLA, respondents. G.R No. 71654 December 18, 1986 ANTONIO DATUIN and SUSAN DATUIN, petitioners, vs. HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF QUEZON CITY, respondents. G.R. No. 74524-25 December 18, 1986 OSCAR VIOLAGO, petitioner, vs. HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon City, Branch LXXXVIII, HONORABLE CITY FISCAL OF QUEZON CITY, respondents. G.R. No. 75122-49 December 18, 1986 ELINOR ABAD, petitioner, vs. THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 139, Makati and FEDERICO L. MELOCOTTON JR., in his capacity as Trial Fiscal Regional Trial Court, Branch 139, Makati, respondents. G.R No. 75812-13 December 18, 1986 AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners, vs. HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but temporarily presided by HONORABLE ASAALI S. ISNANI Branch 153, Court of First Instance of Pasig, Metro Manila, respondent. G.R No. 75765-67 December 18, 1986 LUIS M. HOJAS, petitioner, vs. HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of Cagayan de Oro City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge, Regional Trial Court of Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City Fiscal of Cagayan de Oro City, respondents. G.R. No. 75789 December 18, 1986 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 52, Manila and THELMA SARMIENTO, respondents.

R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for respondent in G.R. No. 75789. Pio S. Canta for petitioner in G.R. Nos. 66839-42. Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654. Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49. The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654, G.R. Nos. 7452425, G.R. Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for petitioner in G.R. No. 75789. YAP, J.: The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by these petitions for decision. The question is definitely one of first impression in our jurisdiction. These petitions arose from cases involving prosecution of offenses under the statute. The defendants in those cases moved seasonably to quash the informations on the ground that the acts charged did not constitute an offense, the statute being unconstitutional. The motions were denied by the respondent trial courts, except in one case, which is the subject of G. R. No. 75789, wherein the trial court declared the law unconstitutional and dismissed the case. The parties adversely affected have come to us for relief. As a threshold issue the former Solicitor General in his comment on the petitions, maintained the posture that it was premature for the accused to elevate to this Court the orders denying their motions to quash, these orders being interlocutory. While this is correct as a general rule, we have in justifiable cases intervened to review the lower court's denial of a motion to quash. 1 In view of the importance of the issue involved here, there is no doubt in our mind that the instant petitions should be entertained and the constitutional challenge to BP 22 resolved promptly, one way or the other, in order to put to rest the doubts and uncertainty that exist in legal and judicial circles and the general public which have unnecessarily caused a delay in the disposition of cases involving the enforcement of the statute. For the purpose of resolving the constitutional issue presented here, we do not find it necessary to delve into the specifics of the informations involved in the cases which are the subject of the petitions before us. 2 The language of BP 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value. I BP 22 punishes a person "who makes or draws and issues any check on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of said check in full upon presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment." The penalty prescribed for the offense is imprisonment of not less than 30 days nor

more than one year or a fine or not less than the amount of the check nor more than double said amount, but in no case to exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. 3 The statute likewise imposes the same penalty on "any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. 4 An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment. Since this involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of such knowledge where payment of the check "is refused by the drawee because of insufficient funds in or credit with such bank when presented within ninety (90) days from the date of the check. 5 To mitigate the harshness of the law in its application, the statute provides that such presumption shall not arise if within five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays the holder the amount of the check. Another provision of the statute, also in the nature of a rule of evidence, provides that the introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal to pay "stamped or written thereon or attached thereto, giving the reason therefor, "shall constitute prima facie proof of "the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof ... for the reason written, stamped or attached by the drawee on such dishonored check." 6 The presumptions being merely prima facie, it is open to the accused of course to present proof to the contrary to overcome the said presumptions. II BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are worthless, i.e. checks that end up being rejected or dishonored for payment. The practice, as discussed later, is proscribed by the state because of the injury it causes to t public interests.

In 1926, an amendment was introduced by the Philippine Legislature, which added a new clause (paragraph 10) to Article 335 of the old Penal Code, this time referring in explicit terms to the issuance of worthless checks. The amendment penalized any person who 1) issues a check in payment of a debt or for other valuable consideration, knowing at the time of its issuance that he does not have sufficient funds in the bank to cover its amount, or 2) maliciously signs the check differently from his authentic signature as registered at the bank in order that the latter would refuse to honor it; or 3) issues a postdated check and, at the date set for its payment, does not have sufficient deposit to cover the same.8 In 1932, as already adverted to, the old Penal Code was superseded by the Revised Penal Code. 9 The above provisions, in amended form, were incorporated in Article 315 of the Revised Penal Code defining the crime of estafa. The revised text of the provision read as follows: Art. 315. Swindling (estafa).—Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: xxx xxx xxx 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commis sion of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits; xxx

xxx

xxx

(d) By postdating a check, or issuing a check in payment of an obligation the offender knowing that at the time he had no funds in the bank, or the funds deposited by him were not sufficient to cover the amount of the cheek without informing the payee of such circumstances.

Before the enactment of BP 22, provisions already existed in our statute books which penalize the issuance of bouncing or rubber checks. Criminal law has dealth with the problem within the context of crimes against property punished as "estafa" or crimes involving fraud and deceit. The focus of these penal provisions is on the damage caused to the property rights of the victim.

The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-existing obligations. 10 The rationale of this interpretation is that in estafa, the deceit causing the defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a check as payment for a pre-existing debt, the drawer does not derive any material benefit in return or as consideration for its issuance. On the part of the payee, he had already parted with his money or property before the check is issued to him hence, he is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him by the drawer of the check.

The Penal Code of Spain, which was in force in the Philippines from 1887 until it was replaced by the Revised Penal Code in 1932, contained provisions penalizing, among others, the act of defrauding another through false pretenses. Art. 335 punished a person who defrauded another "by falsely pretending to possess any power, influence, qualification, property, credit, agency or business, or by means of similar deceit." Although no explicit mention was made therein regarding checks, this provision was deemed to cover within its ambit the issuance of worthless or bogus checks in exchange for money. 7

With the intention of remedying the situation and solving the problem of how to bring checks issued in payment of pre-existing debts within the ambit of Art. 315, an amendment was introduced by the Congress of the Philippines in 1967, 11 which was enacted into law as Republic Act No. 4885, revising the aforesaid proviso to read as follows: (d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be puma facie evidence of deceit constituting false pretense or fraudulent act. However, the adoption of the amendment did not alter the situation materially. A divided Court held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act 4885, does not cover checks issued in payment of pre-existing obligations, again relying on the concept underlying the crime of estafa through false pretenses or deceit—which is, that the deceit or false pretense must be prior to or simultaneous with the commission of the fraud. Since statistically it had been shown that the greater bulk of dishonored checks consisted of those issued in payment of pre-existing debts, 13 the amended provision evidently failed to cope with the real problem and to deal effectively with the evil that it was intended to eliminate or minimize. With the foregoing factual and legal antecedents as a backdrop, the then Interim Batasan confronted the problem squarely. It opted to take a bold step and decided to enact a law dealing with the problem of bouncing or worthless checks, without attaching the law's umbilical cord to the existing penal provisions on estafa. BP 22 addresses the problem directly and frontally and makes the act of issuing a worthless check malum prohibitum. 14

Among the constitutional objections raised against BP 22, the most serious is the alleged conflict between the statute and the constitutional provision forbidding imprisonment for debt. It is contended that the statute runs counter to the inhibition in the Bill of Rights which states, "No person shall be imprisoned for debt or nonpayment of a poll tax." 16 Petitioners insist that, since the offense under BP 22 is consummated only upon the dishonor or non-payment of the check when it is presented to the drawee bank, the statute is really a "bad debt law" rather than a "bad check law." What it punishes is the non-payment of the check, not the act of issuing it. The statute, it is claimed, is nothing more than a veiled device to coerce payment of a debt under the threat of penal sanction. First of all it is essential to grasp the essence and scope of the constitutional inhibition invoked by petitioners. Viewed in its historical context, the constitutional prohibition against imprisonment for debt is a safeguard that evolved gradually during the early part of the nineteenth century in the various states of the American Union as a result of the people's revulsion at the cruel and inhumane practice, sanctioned by common law, which permitted creditors to cause the incarceration of debtors who could not pay their debts. At common law, money judgments arising from actions for the recovery of a debt or for damages from breach of a contract could be enforced against the person or body of the debtor by writ of capias ad satisfaciendum. By means of this writ, a debtor could be seized and imprisoned at the instance of the creditor until he makes the satisfaction awarded. As a consequence of the popular ground swell against such a barbarous practice, provisions forbidding imprisonment for debt came to be generally enshrined in the constitutions of various states of the Union. 17 This humanitarian provision was transported to our shores by the Americans at the turn of t0he century and embodied in our organic laws. 18 Later, our fundamental law outlawed not only imprisonment for debt, but also the infamous practice, native to our shore, of throwing people in jail for non-payment of the cedula or poll tax. 19

The question now arises: Is B P 22 a valid law? Previous efforts to deal with the problem of bouncing checks within the ambit of the law on estafa did not evoke any constitutional challenge. In contrast, BP 22 was challenged promptly. Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it contravenes the equal protection clause; (4) it unduly delegates legislative and executive powers; and (5) its enactment is flawed in that during its passage the Interim Batasan violated the constitutional provision prohibiting amendments to a bill on Third Reading. The constitutional challenge to BP 22 posed by petitioners deserves a searching and thorough scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of what has been described as "the highest and most delicate function which belongs to the judicial department of the government." 15 As we enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government, we need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that we approach our task with diffidence or timidity. Where it is clear that the legislature has overstepped the limits of its authority under the constitution we should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute. III

The reach and scope of this constitutional safeguard have been the subject of judicial definition, both by our Supreme Court 20 and by American State courts.21 Mr. Justice Malcolm speaking for the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt' intended to be covered by the constitutional guaranty has a welldefined meaning. Organic provisions relieving from imprisonment for debt, were intended to prevent commitment of debtors to prison for liabilities arising from actions ex contractu The inhibition was never meant to include damages arising in actions ex delicto, for the reason that damages recoverable therein do not arise from any contract entered into between the parties but are imposed upon the defendant for the wrong he has done and are considered as punishment, nor to fines and penalties imposed by the courts in criminal proceedings as punishments for crime." The law involved in Ganaway was not a criminal statute but the Code of Procedure in Civil Actions (1909) which authorized the arrest of the defendant in a civil case on grounds akin to those which justify the issuance of a writ of attachment under our present Rules of Court, such as imminent departure of the defendant from the Philippines with intent to defraud his creditors, or concealment, removal or disposition of properties in fraud of creditors, etc. The Court, in that case, declared the detention of the defendant unlawful, being violative of the constitutional inhibition against imprisonment for debt, and ordered his release. The Court, however, refrained from declaring the statutory provision in question unconstitutional. Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision which made illegal and punishable the refusal of an employer to pay, when he can do so, the salaries of his employees or laborers on the fifteenth or last day of every month or on Saturday every week, was challenged for being violative of the constitutional prohibition against imprisonment for debt. The constitutionality of the law in question was upheld

by the Court, it being within the authority of the legislature to enact such a law in the exercise of the police power. It was held that "one of the purposes of the law is to suppress possible abuses on the part of the employers who hire laborers or employees without paying them the salaries agreed upon for their services, thus causing them financial difficulties. "The law was viewed not as a measure to coerce payment of an obligation, although obviously such could be its effect, but to banish a practice considered harmful to public welfare. IV Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To answer the question, it is necessary to examine what the statute prohibits and punishes as an offense. Is it the failure of the maker of the check to pay a debt? Or is it the making and issuance of a worthless check in payment of a debt? What is the gravamen of the offense? This question lies at the heart of the issue before us. The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. Admittedly, the distinction may seem at first blush to appear elusive and difficult to conceptualize. But precisely in the failure to perceive the vital distinction lies the error of those who challenge the validity of BP 22. It may be constitutionally impermissible for the legislature to penalize a person for non-payment of a debt ex contractu But certainly it is within the prerogative of the lawmaking body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts which the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The state can do this in the exercise of its police power. The police power of the state has been described as "the most essential, insistent and illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. 24 It is a power not emanating from or conferred by the constitution, but inherent in the state, plenary, "suitably vague and far from precisely defined, rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of citizens to obstruct unreasonably the enactment of such salutary measures to ensure communal peace, safety, good order and welfare." 25 The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, the making and issuance of a worthless check is deemed public nuisance to be abated by the imposition of penal sanctions. It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a reasonable nexus exists between means and end. Considering the factual and legal antecedents that led to the adoption of the statute, it is not difficult to understand the public concern which prompted its enactment. It had been reported that the

approximate value of bouncing checks per day was close to 200 million pesos, and thereafter when overdrafts were banned by the Central Bank, it averaged between 50 minion to 80 million pesos a day. 26 By definition, a check is a bill of exchange drawn on a bank and payable on demand. 27 It is a written order on a bank, purporting to be drawn against a deposit of funds for the payment of all events, of a sum of money to a certain person therein named or to his order or to cash and payable on demand. 28 Unlike a promissory note, a check is not a mere undertaking to pay an amount of money. It is an order addressed to a bank and partakes of a representation that the drawer has funds on deposit against which the check is drawn, sufficient to ensure payment upon its presentation to the bank. There is therefore an element of certainty or assurance that the instrument wig be paid upon presentation. For this reason, checks have become widely accepted as a medium of payment in trade and commerce. Although not legal tender, checks have come to be perceived as convenient substitutes for currency in commercial and financial transactions. The basis or foundation of such perception is confidence. If such confidence is shakes the usefulness of checks as currency substitutes would be greatly diminished or may become nit Any practice therefore tending to destroy that confidence should be deterred for the proliferation of worthless checks can only create havoc in trade circles and the banking community. Recent statistics of the Central Bank show that one-third of the entire money supply of the country, roughly totalling P32.3 billion, consists of peso demand deposits; the remaining two. 29 These de deposit thirds consists of currency in circulation. ma deposits in the banks constitute the funds against which among others, commercial papers like checks, are drawn. The magnitude of the amount involved amply justifies the legitimate concern of the state in preserving the integrity of the banking system. Flooding the system with worthless checks is like pouring garbage into the bloodstream of the nation's economy. The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold, can very wen pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. As aptly stated — 30 The 'check flasher' does a great deal more than contract a debt; he shakes the pillars of business; and to my mind, it is a mistaken charity of judgment to place him in the same category with the honest man who is unable to pay his debts, and for whom the constitutional inhibition against' imprisonment for debt, except in cases of fraud was intended as a shield and not a sword. In sum, we find the enactment of BP 22 a valid exercise of the police power and is not repugnant to the constitutional inhibition against imprisonment for debt. This Court is not unaware of the conflicting jurisprudence obtaining in the various states of the United States on the constitutionality of the "worthless check" acts. 31 It is needless to warn that foreign jurisprudence must be taken with abundant caution. A caveat to be observed is that substantial differences exist between our statute and the worthless check acts of those states where the jurisprudence have evolved. One thing to remember is that BP 22 was not lifted bodily from any existing statute. Furthermore, we have to consider that judicial decisions must be read in the context of the facts and the law involved and, in a broader sense, of the social economic and political environment—in short, the milieu—under which they were made. We recognize the wisdom of the old saying that what is sauce for the goose may not be sauce for the gander.

As stated elsewhere, police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty. For example, there have been cases wherein we held that the constitutional provision on non-impairment of contracts must yield to the police power of the state. 32 Whether the police power may override the constitutional inhibition against imprisonment for debt is an issue we do not have to address. This bridge has not been reached, so there is no occasion to cross it. We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment for debt. V We need not detain ourselves lengthily in the examination of the other constitutional objections raised by petitioners, some of which are rather flimsy. We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. The freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts. Contracts which contravene public policy are not lawful. 33 Besides, we must bear in mind that checks can not be categorized as mere contracts. It is a commercial instrument which, in this modem day and age, has become a convenient substitute for money; it forms part of the banking system and therefore not entirely free from the regulatory power of the state. Neither do we find substance in the claim that the statute in question denies equal protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is contended that the payee is just as responsible for the crime as the drawer of the check, since without the indispensable participation of the payee by his acceptance of the check there would be no crime. This argument is tantamount to saying that, to give equal protection, the law should punish both the swindler and the swindled. The petitioners' posture ignores the wellaccepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is no unreasonable or arbitrary. 34 It is also suggested that BP 22 constitutes undue or improper delegation of legislative powers, on the theory that the offense is not completed by the sole act of the maker or drawer but is made to depend on the will of the payee. If the payee does not present the check to the bank for payment but instead keeps it, there would be no crime. The logic of the argument stretches to absurdity the meaning of "delegation of legislative power." What cannot be delegated is the power to legislate, or the power to make laws. 35 which means, as applied to the present case, the power to define the offense sought to be punished and to prescribe the penalty. By no stretch of logic or imagination can it be said that the power to define the crime and prescribe the penalty therefor has been in any manner delegated to the payee. Neither is there any provision in the statute that can be construed, no matter how remotely, as undue delegation of executive power. The suggestion that the statute unlawfully delegates its enforcement to the offended party is farfetched. Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973 Constitution was violated by the legislative body when it enacted BP 22 into law. This constitutional provision prohibits the introduction of amendments to a bill during the Third Reading. It is claimed that during its Third Reading, the bill which eventually became BP 22 was amended in that the text of the second paragraph of Section 1 of the bill as adopted

on Second Reading was altered or changed in the printed text of the bill submitted for approval on Third Reading. A careful review of the record of the proceedings of the Interim Batasan on this matter shows that, indeed, there was some confusion among Batasan Members on what was the exact text of the paragraph in question which the body approved on Second Reading. 36 Part of the confusion was due apparently to the fact that during the deliberations on Second Reading (the amendment period), amendments were proposed orally and approved by the body or accepted by the sponsor, hence, some members might not have gotten the complete text of the provisions of the bill as amended and approved on Second Reading. However, it is clear from the records that the text of the second paragraph of Section 1 of BP 22 is the text which was actually approved by the body on Second Reading on February 7, 1979, as reflected in the approved Minutes for that day. In any event, before the bin was submitted for final approval on Third Reading, the Interim Batasan created a Special Committee to investigate the matter, and the Committee in its report, which was approved by the entire body on March 22, 1979, stated that "the clause in question was ... an authorized amendment of the bill and the printed copy thereof reflects accurately the provision in question as approved on Second Reading. 37 We therefore, find no merit in the petitioners' claim that in the enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the 1973

Constitution were violated. WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and setting aside the order of the respondent Judge dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-42, 71654, 7452425, 75122-49, 75812-13 and 75765-67 are hereby dismissed and the temporary restraining order issued in G.R. Nos. 74524-25 is lifted. With costs against private petitioners. SO ORDERED. Teehankee, C.J., Feria, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur.

23. G.R. No. 137761

April 6, 2000

GABRIEL LAZARO and the heirs of FLORENCIA PINEDA and EVA VIERNES, petitioners, vs. COURT OF APPEALS and Spouses JOSE and ANITA ALESNA, respondents.

Before the Regional Trial Court (RTC) of Bayombong, Nueva Vizcaya (Branch 27), Spouses Jose and Anita Alesna, private respondents herein, filed a civil action for annulment of title, reconveyance and damages (with prayer for preliminary injunction) 4 against Petitioners Gabriel Lazaro and the heirs of Florencia Pineda and Eva Viernes.

PANGANIBAN, J.:

After trial, the RTC rendered judgment in favor of the petitioners. Thereafter, the private respondents filed a Notice of Appeal before the trial court.5

Failure to pay docket and other lawful fees within the prescribed period is a ground for the dismissal of an appeal. This rule cannot be suspended by the mere invocation of "the interest of substantial justice." Procedural rules may be relaxed only in exceptionally meritorious cases.

In a Resolution dated June 17, 1998, the CA6 dismissed the appeal for failure of herein private respondents to pay the required docket fees within the prescribed period. Thereafter, it issued its first assailed Resolution dated July 31, 1998 granting their Motion for Reconsideration and reinstating the appeal. Subsequently, the petitioners also filed their own Motion for Reconsideration assailing the said Resolution. As earlier stated, the CA denied their Motion.

The Case Before us is a Petition for Certiorari under Rule 65 assailing two Resolutions, dated July 31, 1998 and December 28, 1998, both promulgated by the Court of Appeals1 (CA) in CA-G.R. CV No. 60094. In the first Resolution, the CA ruled:

Hence, this Petition.7 Ruling of the Court of Appeals

For resolution is a motion to reconsider this Court's Resolution dismissing the appeal for failure of appellants [herein private respondents] to pay the prescribed docketing fees pursuant to Section 4, Rule 41 of the 1997 Rules on Civil Procedure. xxx

xxx

In reinstating the appeal despite the failure of herein private respondents to pay the docket fees within the prescribed period, the Court of Appeals invoked "the interest of substantial justice." It did not elaborate however. No specific circumstance or any other explanation was cited in support of its ruling.

xxx Issue

Copy of the judgment appealed from was received by appellants on December 16, 1997 and their notice of appeal was filed on December 19, 1997. The motion for reconsideration of this Court's Resolution was filed on time, but the attached official receipt No. 2768290 evidencing payment of the required docketing fees was dated June 26, 1998, almost six (6) months after the last day to file notice of appeal. However, appellants prayed that this Court's June 17, 1998 resolution be set aside, lifted, and this appeal reinstated, citing "interest of substantial justice." In the light of the foregoing, appellants' June 26, 1998 motion is hereby GRANTED.

2

In its second Resolution, the CA denied reconsideration in this wise: For all the foregoing, there being no cogent or compelling reason to warrant reconsideration of this court's resolution dated July 31, 1998, the motion of appellees is hereby DENIED. 3 The Facts

In their Memorandum, petitioners submit for the consideration of the Court this lone question: ". . . [H]as the respondent appellate court acted without or in excess of jurisdiction, and/or with grave abuse of discretion in issuing the questioned Resolutions dated July 31, 1998 and December 28, 1998"? 8 This Court's Ruling The Petition is meritorious. Main Issue: Timely Payment of CA Docket Fees The Rules of Court, as amended, specifically provides that appellate court docket and other lawful fees should be paid within the period for taking an appeal. Hence, Section 4 of Rule 41 reads: Sec. 4. Appellate court docket and other lawful fees. — Within the period for taking an appeal,9 the appellant shall pay to the clerk of the court which rendered the judgment or final order

appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. Contrary to the submission of private respondents that the aforecited rule is merely directory, the payment of the docket and other legal fees within the prescribed period is both mandatory and jurisdictional. Section 1 (c), Rule 50 of the Rules of Court provides: "Failure of the appellant to pay the docket and other fees as provided in Section 4 of Rule 41" is a ground for the dismissal of the appeal. Indeed, it has been held that failure of the appellant to conform with the rules on appeal renders the judgment final and executory. 10 Verily, the right to appeal is a statutory right and one who seeks to avail of that right must comply with the statute or the rule. 11 In the present case, the private respondents failed to pay the required docket fees within the reglementary period.1âwphi1In fact, the Court notes that they paid the fees only after the CA had dismissed the appeal, or six months after the filing of the Notice of Appeal. Clearly, existing jurisprudence and the Rules mandate that the appeal should be dismissed. The appellate court nonetheless reinstated the appeal "in the interest of substantial justice." But as earlier observed, it did not cite any specific circumstance or any other explanation in support of its ruling. For their part, private respondents failed to offer a satisfactory explanation why they paid the docket fees six months after the prescribed period. Indeed, neither they nor the Court of Appeals showed fraud, accident, mistake, excusable negligence, or any other reason to justify the suspension of the aforecited rule. 12 We must stress that the bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules. "Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed." 13 The Court reiterates that rules of procedure, especially those prescribing the time within which certain acts must be done, "have oft been held as absolutely indispensable to the prevention of needless delays and to the orderly and speedy discharge of business. . . . The reason for rules of this nature is because the dispatch of business by courts would be impossible, and intolerable delays would result, without rules governing practice . . . . Such rules are a necessary incident to the proper, efficient and orderly discharge of judicial functions." 14 Indeed, in no uncertain terms, the Court held that the said rules may be relaxed only in ''exceptionally meritorious cases." 15 In this case, the CA and the private respondents failed to show that this case is one such exception. WHEREFORE, the Petition is hereby GRANTED. The Court of Appeals' assailed Resolutions, dated July 31, 1998 and December 28, 1998, are SET ASIDE. The Decision of the Regional Trial Court of Bayombong, Nueva Vizcaya (Branch 27) in Civil Case No. 4058 is declared FINAL and EXECUTORY. No pronouncement as to costs.1âwphi1.nêt SO ORDERED.

Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

24. .R. No. 178300

March 17, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA and JOSELITO FLORES y VICTORIO, Accused-Appellants. DECISION CHICO-NAZARIO, J.: For review is the Decision,1 dated 14 August 2006, and Resolution,2 dated 18 October 2006, of the Court of Appeals in CA-G.R. CR-H.C. No. 02301 affirming with modifications the Decision,3 dated 26 February 2002, of the Regional Trial Court (RTC), Branch 12, Malolos, Bulacan, in Criminal Case No. 1611-M-99 finding herein accused-appellants Domingo Reyes y Paje (Reyes), Alvin Arnaldo y Avena (Arnaldo) and Joselito Flores y Victorio (Flores) guilty of the special complex crime of kidnapping for ransom with homicide and imposing upon each of them the capital punishment of death. The facts culled from the records are as follows: On 11 August 1999, an Information4 was filed before the RTC charging appellants with the special complex crime of kidnapping for ransom with homicide. The accusatory portion of the information reads: The undersigned State Prosecutor of the Department of Justice hereby accuses Domingo Reyes y Paje, Alvin Arnaldo y Avena and Joselito Flores y Victorio of the crime of kidnapping for ransom with homicide defined and penalized under Article 267 of the Revised Penal Code, as amended, committed as follows: That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin, barangay Sto. Cristo, San Jose del Monte, Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another and grouping themselves together with Juanito Pataray y Cayaban, Federico Pataray y Cabayan and Rommel Libarnes y Acejo, who are still at large, did then and there willfully, unlawfully and feloniously, by means of force and intimidation and with use of firearms, carry away and deprive Robert Yao, Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew Yao, Lennie Yao, Charlene Yao, Jona Abagatnan ang Josephine Ortea against their will and consent on board their Mazda MVP van for the purpose of extorting money in the amount of Five Million Pesos (₱5,000,000.00), that during the detention of Chua Ong Ping Sim and Raymong Yao, said accused with intent to kill, willfully and unlawfully strangled Chua Ong Ping Sim and Raymond Yao to death to the damage and prejudice of their heirs in such amount as may be awarded to them by this Honorable Court. During their arraignment,5 appellants, assisted by a counsel de oficio, pleaded "Not guilty" to the charge. Trial on the merits thereafter followed.

The prosecution presented as witnesses Jona Abagatnan (Abagatnan), Robert Yao (Robert), Yao San, Police Officer 3 (PO3) Alex Alberto, PO3 Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and Atty. Carlo Uminga (Atty. Uminga). Their testimonies, taken together, attest to the following: The Yao family is composed of Yao San (father), Chua Ong Ping Sim (mother), Robert and Raymond (children), Lenny (daughter-in-law, wife of Robert), Matthew and Charlene (grandchildren), and Jona Abagatnan and Josephine Ortea (housemaids). The Yao family owns and operates a poultry farm in Barangay Santo Cristo, San Jose del Monte, Bulacan. On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda MVP van, arrived at the their poultry farm in Barangay Sto. Cristo, San Jose del Monte, Bulacan. Yao San alighted from the van to open the gate of the farm. At this juncture, appellant Reyes and a certain Juanito Pataray (Pataray) approached, poked their guns at Yao San, and dragged him inside the van. Appellant Reyes and Pataray also boarded the van. Thereupon, appellants Arnaldo and Flores, with two male companions, all armed with guns, arrived and immediately boarded the van. Appellant Flores took the driver’s seat and drove the van. Appellants Reyes and Arnaldo and their cohorts then blindfolded each member of the Yao family inside the van with packaging tape.6 After about 30 minutes of traveling on the road, the van stopped. Per order of appellants and their cohorts, Chua Ong Ping Sim, Robert, Raymond and Jona Abagatnan (Abagatnan) stepped out of the van with appellants Reyes and Arnaldo, Pataray and one of their male companions. 7 Appellant Flores, with the other male companion, drove the van with the remaining members of the Yao family inside the vehicle. 8 Later, the van stopped again. Appellant Flores and his male companion told Yao San to produce the amount of five million pesos (₱5,000,000.00) as ransom in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Thereafter, appellant Flores and his male companion left the van and fled; while Yao San, Lenny, Matthew, Charlene and Josephine remained inside the van. Upon sensing that the kidnappers had already left, Yao San drove the van towards the poultry farm and sought the help of relatives.9 Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were taken on foot by appellants Reyes and Arnaldo, Pataray and one male companion to a safe-house situated in the mountainous part of San Jose Del Monte, Bulacan where they spent the whole night.10 On the morning of the following day, at around 4:00 a.m., appellants and their cohorts tried to contact Yao San regarding the ransom demanded, but the latter could not be reached. Thus, appellants instructed Abagatnan to look for Yao San in the poultry farm. Appellants Reyes and Arnaldo and one male companion escorted Abagatnan in proceeding to the poultry farm. Upon arriving therein, Abagatnan searched for Yao San, but the latter could not be found. Appellants Reyes and Arnaldo told Abagatnan to remind Yao San about the ransom demanded. Thereafter, appellants Reyes and Arnaldo and their male companion left Abagatnan in the poultry farm and went back to the safe-house.11 In the safe-house, appellants told Robert that they would release him so he could help Abagatnan in locating Yao San. Robert and appellants left the safe-house, and after 30 minutes of trekking, appellants

abandoned Robert. Robert then ran towards the poultry farm. Upon arriving at the poultry farm, Robert found Yao San and informed him about the ransom demanded by the appellants. Robert also told Yao San that Chua Ong Ping Sim and Raymond were still held by appellants and their cohorts. 12 On 18 July 1999, appellants called Yao San through a cellular phone and demanded the ransom of ₱5 million for Chua Ong Ping Sim and Raymond. Yao San acceded to appellants’ demand. Appellants allowed Yao San to talk with Chua Ong Ping Sim.13 On the morning of 19 July 1999, appellants again called Yao San via a cellular phone and threatened to kill Chua Ong Ping Sim and Raymond because of newspaper and radio reports regarding the incident. Yao San clarified to appellants that he did not report the incident to the police and also pleaded with them to spare the life of Chua Ong Ping Sim and Raymond. Appellants then instructed Yao San to appear and bring with him the ransom of ₱5 million at 3:00 p.m. in the Usan dumpsite, Litex Road, Fairview, Quezon City. Yao San arrived at the designated place of the pay-off at 4:00 p.m., but none of the appellants or their cohorts showed up. Yao San waited for appellant’s call, but none came. Thus, Yao San left. 14 On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were found at the La Mesa Dam, Novaliches, Quezon City.15 Both died of asphyxia by strangulation.16 On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-Organized Crime Task Force (PAOCTF) at Camp Crame, Quezon City. Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga, executed a written extra-judicial confession narrating his participation in the incident. Appellant Arnaldo identified appellants Reyes and Flores, Pataray and a certain Tata and Akey as his co-participants in the incident. Appellant Arnaldo also described the physical features of his cohorts and revealed their whereabouts.17 Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del Monte, Bulacan. Thereafter, appellants Arnaldo and Reyes were identified in a police line-up by Yao San, Robert and Abagatnan as their kidnappers.18 On 10 August 1999, agents of the PAOCTF arrested appellant Flores in Balayan, Batangas. Afterwards, appellant Flores, with the assistance of Atty. Rous, executed a written extra-judicial confession detailing his participation in the incident. Appellant Flores identified appellants Reyes and Arnaldo, Pataray and a certain Tata and Akey as his co-participants in the incident. Appellant Flores was subsequently identified in a police line-up by Yao San, Robert and Abagatnan as one of their kidnappers. 19 The prosecution adduced documentary evidence to bolster the aforesaid allegations, to wit: (1) Sinumpaang Salaysay of Abagatnan (Exhibit A);20 (2) Karagdagang Sinumpaang Salaysay of Abagatnan, Robert and Yao San (Exhibit B);21 (3) sketch made by Abagatnan (Exhibit C);22 (4) death certificates of Chua Ong Ping Sim and Raymond (Exhibits D & E);23 (5) Sinumpaang Salaysay of Robert (Exhibit F);24 (6) Sinumpaang Salaysay of Yao San (Exhibit H);25 (7) joint affidavit of Police Senior Inspector Loreto P. Delelis and PO3 Roberto Jabien (Exhibit I);26 (8) joint affidavit of PO3 Alex Alberto and PO3 Leonito Fermin (Exhibit J);27 (9) written extra-judicial confession of appellant Flores (Exhibit K);28 (10) written

extra-judicial confession of appellant Arnaldo (Exhibit L);29 and (11) sketch made by appellant Arnaldo (Exhibit M).30 For its part, the defense presented the testimonies of appellants, Marina Reyes, Irene Flores Celestino, Wilfredo Celestino, Jr., Rachel C. Ramos, and Isidro Arnaldo. Appellants denied any liability and interposed alibis and the defense of frame-up. Their testimonies, as corroborated by their witnesses, are as follows: Appellant Arnaldo testified that he was an "asset" of the PAOCTF. He narrated that on 25 July 1999, while he was at the tricycle terminal of Brgy. Sto. Cristo, San Jose del Monte, Bulacan, a police officer named Liwanag of the PAOCTF approached and invited him to go to Camp Crame to shed light on a kidnapping case allegedly committed by a certain Brgy. Captain Ramos and by members of the Aguirre and Bautista families. He accepted the invitation. Subsequently, he proceeded to Camp Crame and met therein Colonel Cesar Mancao III (Colonel Mancao) of the PAOCTF. Colonel Mancao told him that the PAOCTF would arrest Brgy. Capt. Ramos and certain persons named Gerry Bautista and Dadie Bautista. Colonel Mancao instructed him to identify said persons as responsible for the kidnapping of the Yao family. He refused to do so because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao called appellant Arnaldo to his office. Upon arriving thereat, the latter saw Yao San. Yao San promised him that if their kidnappers would be apprehended through his cooperation, he would give him ₱500,000.00. He accepted Yao San’s offer under the condition that he would identify a different set of suspects. Later, Colonel Mancao gave him ₱30,000.00.31 Subsequently, he pointed to appellants Reyes and Flores as his cohorts in kidnapping the Yao family. He implicated appellants Reyes and Flores to get even with them, since the two had previously mauled him after he sold their fighting cocks and failed to give them the proceeds of the sale. 32 He denied having met with Atty. Uminga. He was not assisted by the latter when he was forced by the PAOCTF to make a written extra-judicial confession on the kidnapping of the Yao family. Further, he claimed that while he was under the custody of PAOCTF, a certain Major Paulino utilized him as a drug pusher. Upon failing to remit the proceeds of the drug sale, he was beaten up by PAOCTF agents and thereafter included as accused with appellants Reyes and Flores for the kidnapping of the Yao family. 33 On the other hand, appellant Reyes testified that he slept in his house with his family from 6:00 p.m. of 16 July 1999 until the morning of the next day; that on the early morning of 26 July 1999, five policemen barged into his house and arrested him; that the policemen told him that he was a suspect in the kidnapping of the Yao family; that he was mauled by the policemen outside his house; that the policemen forcibly brought him to Camp Crame, where he was subsequently tortured; that he knew the Yao family because he worked as a carpenter in the family’s poultry farm at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he had no involvement in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the family because appellant Arnaldo held a grudge against him. 34 For his part, appellant Flores testified that he stayed in his sister’s house at Antipolo City from 12 July 1999 up to 30 July 1999; that he went to her house on 12 July 1999 because it was the birthday of her child; that he worked as a construction worker during his stay in his sister’s house; that he was arrested in Batangas

and thereafter brought to Camp Crame, where he was beaten up by policemen for refusing to admit involvement in the kidnapping of the Yao family; that after three days of beating, he was forced to sign a document which he later found out to be a written extra-judicial confession; that he never met nor did he know Atty. Rous; that he knew the Yao family because he lived near the family’s poultry farm, and he used to work therein as a welder; that he had no participation in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the family because he and appellant Reyes had mauled appellant Arnaldo several years ago.35

2) the award of civil indemnity ex delicto is hereby reduced to ₱100,000; and 3) accused-appellants are further ordered to pay private complainants the amount of ₱100,000.00 as exemplary damages.41 Appellants filed a motion for reconsideration of the Court of Appeals’ Decision but this was denied. Hence, appellants filed their Notice of Appeal on 25 August 2006.

The defense proffered documentary and object evidence to buttress their foregoing claims, to wit: (1) prayer booklet of appellant Arnaldo (Exhibit 1 for appellant Arnaldo);36 (2) calling card of Colonel Mancao (Exhibit 2 for appellant Arnaldo);37 and (3) pictures allegedly showing appellant Flores working as a carpenter in Antipolo City (Exhibits 1 & 2 for appellant Flores). 38

In their separate briefs,42 appellants assigned the following errors:

After trial, the RTC rendered a Decision dated 26 February 2002 convicting appellants of the special complex crime of kidnapping for ransom with homicide and sentencing each of them to suffer the supreme penalty of death. Appellants were also ordered to pay jointly and severally the Yao family ₱150,000.00 as civil indemnity, ₱500,000.00 as moral damages and the costs of the proceedings. The dispositive portion of the RTC Decision reads:

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES;

I.

II. THE TRIAL COURT ERRED IN FINDING A CONSPIRACY BETWEEN APPELLANTS;

WHEREFORE, finding herein three (3) accused DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA, and JOSELITO FLORES y VICTORIO guilty as principals beyond reasonable doubt of the crime of KIDNAPPING FOR RANSOM WITH (DOUBLE) HOMICIDE as charged, they are hereby sentenced each to suffer the supreme penalty of DEATH as mandated by law, to jointly and severally indemnify the heirs of deceased Chua Ong Ping Sim and Raymond Yao in the amount of One Hundred Fifty Thousand Pesos (₱150,000.00), and all the private offended parties or victims, including the heirs of the deceased, in the amount of Five Hundred Thousand Pesos (₱500,000.00) as moral damages, subject to the corresponding filing fee as a first lien, and to pay the costs of the proceedings. 39 By reason of the death penalty imposed on each of the appellants, the instant case was elevated to us for automatic review. However, pursuant to our ruling in People v. Mateo, 40 we remanded the instant case to the Court of Appeals for proper disposition. On 14 August 2006, the Court of Appeals promulgated its Decision affirming with modifications the RTC Decision. The appellate court reduced the penalty imposed by the RTC on each of the appellants from death penalty to reclusion perpetua without the possibility of parole. It also decreased the amount of civil indemnity from ₱150,000.00 to ₱100,000.00. Further, it directed appellants to pay jointly and severally the Yao family ₱100,000.00 as exemplary damages. The fallo of the Court of Appeals’ decision states: WHEREFORE, premises considered, the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 12, dated February 26, 2002, in Criminal Case No. 1611-M-99 convicting accused-appellants of the crime of Kidnapping For Ransom with (Double) Homicide, is hereby AFFIRMED with MODIFICATIONS in that: 1) accused-appellants are instead sentenced to suffer the penalty of reclusion perpetua;

III. THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE EXTRA-JUDICIAL CONFESSIONS OF APPELLANT ARNALDO AND APPELLANT FLORES; IV. THE TRIAL COURT ERRED IN TOTALLY IGNORING THE CORROBORATED EVIDENCE OF THE DEFENSE; V. THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAD PROVEN APPELLANTS’ GUILT BEYOND REASONABLE DOUBT.43 Anent the first assigned error, appellants assail the credibility of prosecution witnesses Abagatnan, Robert and Yao San. In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following wellsettled principles: (1) the reviewing court will not disturb the findings of the lower court, unless there is a showing that the latter overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that may affect the result of the case; (2) the findings of the trial court on the credibility of witnesses are entitled to great respect and even finality, as it had the opportunity to examine their demeanor

when they testified on the witness stand; and (3) a witness who testifies in a clear, positive and convincing manner is a credible witness.44

respective blindfolds loosened several times, giving them the opportunity to have a glimpse at the faces of appellants and their cohorts.52

After carefully reviewing the evidence on record and applying the foregoing guidelines to this case, we found no cogent reason to overturn the RTC’s ruling finding the testimonies of the prosecution witnesses credible. Prosecution witnesses Abagatnan, Robert, and Yao San positively identified appellants and their cohorts as their kidnappers during a police line-up and also during trial. Abagatnan specifically testified during the trial that after appellants and their cohorts forcibly entered the van where she and the Yao family were, appellant Flores drove the van away from the poultry farm; that appellants Reyes and Arnaldo were among the kidnappers who guarded her, Robert, Chua Ong Ping Sim and Raymond in the safe-house; and that appellants Reyes and Arnaldo accompanied her in going to the poultry farm to search for Yao San and remind him about the ransom demanded.45 Robert confirmed that appellants and their cohorts blindfolded them inside the van during the incident. He also recounted that appellants and their cohorts detained him and Chua Ong Ping Sim, Raymond and Abagatnan in a safe-house. He was later instructed by appellants to find Yao San and remind him about the ransom.46 Yao San declared that during the incident, appellant Reyes and Pataray approached him, poked their guns at him, and dragged him into the van. Appellant Flores took the driver’s seat and drove the van. Appellant Flores and his male companion told him to produce ₱5 million as ransom money in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan.47

Abagatnan, Robert and Yao San testified that even though the heads of appellants and their cohorts were covered by T-shirts, their faces were, nonetheless, exposed and uncovered, allowing them to see their faces.53 Robert and Yao San also declared that they recognized the faces of appellants during the incident because the latter resided near the poultry farm of the Yao family, which used to hire them several times in the farm as carpenters/welders.54 Appellants, however, insist that the testimonies of Abagatnan, Robert and Yao San that they were able to recognize the kidnappers -- because although the kidnappers’ heads were covered with T-shirts, their faces were nevertheless exposed or uncovered -- are incredible. Appellants argue that it is against human nature and experience that kidnappers would cover only their heads and not their faces in concealing their identities.

Abagatnan, Robert and Yao San testified in a clear and candid manner during the trial. Their respective testimonies were consistent with one another. They were steadfast in recounting their ordeal despite the grueling cross examination of the defense. Moreover, their testimonies were in harmony with the documentary evidence adduced by the prosecution. The RTC and the Court of Appeals found their testimonies credible and trustworthy. Both courts also found no ill motive for Abagatnan, Robert and Yao San to testify against appellants.

It is not illogical or against human nature for appellants and their cohorts to cover their heads with T-shirts, while leaving their faces exposed and uncovered when they kidnapped the Yao family. Perhaps, appellants and their cohorts thought that putting T-shirts on their heads without covering their faces was sufficient to conceal their identities. Regardless of their reason, the fact remains that Abagatnan, Robert and Yao San positively identified appellants as their kidnappers, and their said identification and testimonies were found by the RTC, the Court of Appeals and by this Court to be credible. In People v. Barredo, 55 the victim testified that he was able to identify the accused as his assailants because the latter took off their masks during the assault. The accused argued that the victim’s testimony was incredible because persons who wore masks would not take them off so casually in the presence of their victims, as doing so would reveal their identities. The trial court, nonetheless, ruled that the victim’s testimony was credible and truthful. We sustained such ruling of the trial court and ratiocinated:

Appellants, nonetheless, maintain that Abagatnan, Robert and Yao San could not have identified their kidnappers, because (1) the incident occurred in the darkness of the night; (2) they were blindfolded then; and (3) the heads of the kidnappers were covered by T-shirts.

Appellants dispute the plausibility of Enrico Cebuhano’s claim that he was able to identify the assailants because they took off their masks. Persons who wear masks would not take them off so casually in the presence of their victims, as doing so would thereby reveal their identities. x x x.

It appears that the crime scene was well-lighted during the incident. At that time, there was a light from a fluorescent bulb hanging above the gate of the poultry farm wherein Yao San was held at gunpoint by appellant Reyes and Pataray.48 The headlights of the van were also turned on, making it possible for Abagatnan and Robert to see the faces of appellant Reyes and Pataray as the two approached and poked their guns at Yao San.49 Further, there was a bulb inside the van, which turned on when the door’s van was opened. This bulb lighted up when appellants and their cohorts forcibly boarded the van, thus, allowing Abagatnan, Robert and Yao San to glance at the faces of appellants and their cohorts. 50

The above arguments are untenable. In his testimony, Enrico Cebuhano clearly stated that the men who entered his home removed their masks when he was brought downstairs. Why they did so was known only to them. It is possible that they thought that there was no one in the vicinity who could identify them, or that they wanted Enrico to see who they were so as to intimidate him. It is also possible that they felt secure because there were 14 of them who were all armed. In any event, what is important is that the trial court found Enrico Cebuhano’s testimony to be both credible and believable, and that he was able to positively identify appellants herein, because the men who entered his home removed their masks, x x x.

Although the Yao family was blindfolded during the incident, it was, nevertheless, shown that it took appellants and their cohorts about 10 minutes before all members of the Yao family were blindfolded.51 During this considerable length of time, Abagatnan, Robert and Yao San were able to take a good look at the faces of appellants and their cohorts. In addition, Abagatnan and Robert narrated that their

It is significant to note that Chua Ong Ping Sim and Raymond were brutally killed as a result of the kidnapping. It is difficult to believe that Robert and Yao San would point to appellants and their cohorts as their kidnappers if such were not true. A witness’ relationship to the victim of a crime makes his testimony more credible as it would be unnatural for a relative interested in vindicating a crime done to their family to accuse somebody other than the real culprit.56 Relationship with a victim of a crime would deter a witness

from indiscriminately implicating anybody in the crime. His natural and usual interest would be to identify the real malefactor and secure his conviction to obtain true justice for the death of a relative. 57

their cohorts demonstrated their unity of purpose and design in kidnapping the Yao family for the purpose of extorting ransom.

Appellants put in issue the failure of Robert and Yao San to immediately report the incident and identify appellants to authorities despite their common claim that they recognized appellants, as the latter used to work in the poultry farm.

Appellants, however, challenge the legality and admissibility of the written extra-judicial confessions.

Robert and Yao San cannot be blamed for not immediately reporting the incident to the authorities. Chua Ong Ping Sim and Raymond were still held by appellants and their cohorts when the ransom was demanded for their release. Appellants and their cohorts were armed and dangerous. Appellants and their cohorts also threatened to kill Chua Ong Ping Sim and Raymond if Yao San and Robert would report the incident to the authorities.58 Understandably, Yao San and Robert were extremely fearful for the safety of their loved ones, and this caused them to refrain from reporting the incident. Robert and Yao San cannot also be blamed for not reporting the incident to the police even after the corpses of Chua Ong Ping Sim and Raymond had already been found, and appellants and their cohorts had cut their communication with them. Certainly, the killings of Chua Ong Ping Sim and Raymond had a chilling/paralyzing effect on Robert and Yao San. Also, appellants and their cohorts were still at large then, and the possibility that they would harm the remaining members of the Yao family was not remote, considering that appellants and their cohorts were familiar with the whereabouts of the Yao family. At any rate, we have held that failure to immediately report the kidnapping incident does not diminish the credibility of the witnesses. 59 The lapse of a considerable length of time before a witness comes forward to reveal the identities of the perpetrators of the crime does not taint the credibility of the witness and his testimony where such delay is satisfactorily explained. 60 Apropos the second assigned error, appellants contend that the prosecution failed to prove that they conspired in kidnapping the Yao family. Under Article 8 of the Revised Penal Code, there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy presupposes unity of purpose and unity in the execution of the unlawful objective among the accused.61 When the accused by their acts aimed at the same object, one performing one part and the other performing another part as to complete the crime, with a view to the attainment of the same object, conspiracy exists.62 As can be gleaned from the credible testimonies and sworn statements of Abagatnan, Robert and Yao, appellant Reyes and Pataray63 approached and poked their guns at Yao San, and thereafter dragged the latter into the van. Appellant Flores then took the driver’s seat and drove the van, while each member of the Yao family was blindfolded by appellants Reyes and Arnaldo and their cohorts inside the van. Thereafter, appellant Flores instructed Yao San to produce the amount of ₱5 million as ransom money in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Appellant Reyes and appellant Arnaldo were among the kidnappers who guarded Abagatnan, Robert, Chua Ong Ping Sim and Raymond in the safe-house. They also accompanied Abagatnan and Robert in going to the poultry farm to search for and remind Yao San about the ransom demanded. Further, appellants Arnaldo and Flores narrated in their respective extra-judicial confessions64 how they planned and executed the kidnapping of the Yao family. Their extra-judicial confessions also detailed the particular role/participation played by each of appellants and their cohorts in the kidnapping of the family. Clearly, the foregoing individual acts of appellants and

Appellant Reyes claims that his alleged participation in the kidnapping of the Yao family was based solely on the written extra-judicial confessions of appellants Arnaldo and Flores. He maintains, however, that said extra-judicial confessions are inadmissible in evidence, because they were obtained in violation of his coappellants’ constitutional right to have an independent counsel of their own choice during custodial investigation. Appellant Reyes alleges that the agents of the PAOCTF did not ask his co-appellants during the custodial investigation whether they had a lawyer of their own choice, and whether they could afford to hire a lawyer; that the agents of the PAOCTF suggested the availability of Atty. Uminga and Atty. Rous to his co-appellants; and that Atty. Uminga and Atty. Rous were associates of the PAOCTF. Appellant Reyes also asseverates that the extra-judicial confessions of appellants Arnaldo and Flores cannot be utilized against him. Appellant Flores argues that his written extra-judicial confession is inadmissible in evidence, because it was obtained in violation of his constitutional right to have an independent counsel of his own choice during custodial investigation. He insists that his written extra-judicial confession was elicited through force, torture and without the assistance of a lawyer. He avers that he was not assisted by any lawyer from the time he was arrested until he was coerced to sign the purported confession; that he was forced to sign it because he could not anymore endure the beatings he suffered at the hands of the PAOCTF agents; and that he never met or knew Atty. Rous who, according to the PAOCTF, had assisted him during the custodial investigation. Appellant Arnaldo contends that his written extra-judicial confession should be excluded as evidence, as it was procured in violation of his constitutional right to have an independent counsel of his own choice during custodial investigation. He claims that he was not given freedom to choose his counsel; that the agents of the PAOCTF did not ask him during the custodial investigation whether he had a lawyer of his own choice, and whether he could afford to hire a lawyer; and that the agents of the PAOCTF suggested the availability of Atty. Uminga to him. An extra-judicial confession is a declaration made voluntarily and without compulsion or inducement by a person under custodial investigation, stating or acknowledging that he had committed or participated in the commission of a crime.65 In order that an extra-judicial confession may be admitted in evidence, Article III, Section 12 of the 1987 Constitution mandates that the following safeguards be observed 66: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.1awphi.zw+

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. Thus, we have held that an extra-judicial confession is admissible in evidence if the following requisites have been satisfied: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.67 The mantle of protection afforded by the above-quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody.68 The right of an accused to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.69 Such right contemplates effective communication which results in the subject understanding what is conveyed.70 The right to counsel is a fundamental right and is intended to preclude the slightest coercion as would lead the accused to admit something false.71 The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused.72 The lawyer called to be present during such investigation should be, as far as reasonably possible, the choice of the accused. If the lawyer is one furnished in behalf of accused, he should be competent and independent; that is, he must be willing to fully safeguard the constitutional rights of the accused.73 A competent and independent counsel is logically required to be present and able to advice and assist his client from the time the latter answers the first question asked by the investigator until the signing of the confession. Moreover, the lawyer should ascertain that the confession was made voluntarily, and that the person under investigation fully understood the nature and the consequence of his extra-judicial confession vis-a-vis his constitutional rights. 74 However, the foregoing rule is not intended to deter to the accused from confessing guilt if he voluntarily and intelligently so desires, but to protect him from admitting what he is being coerced to admit although untrue. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him; but, rather, it was adopted in our Constitution to preclude the slightest coercion on the accused to admit something false. The counsel should never prevent an accused from freely and voluntarily telling the truth.75 We have gone over the records and found that the PAOCTF investigators have duly apprised appellants Arnaldo and Flores of their constitutional rights to remain silent and to have competent and independent counsel of their own choice during their respective custodial investigations.

The Pasubali76 of appellants Arnaldo and Flores’s written extra-judicial confessions clearly shows that before they made their respective confessions, the PAOCTF investigators had informed them that the interrogation about to be conducted on them referred to the kidnapping of the Yao family. Thereafter, the PAOCTF agents explained to them that they had a constitutional right to remain silent, and that anything they would say may be used against them in a court of law. They were also told that they were entitled to a counsel of their own choice, and that they would be provided with one if they had none. When asked if they had a lawyer of their own, appellant Arnaldo replied that he would be assisted by Atty. Uminga, while appellant Flores agreed to be represented by Atty. Rous. Thereafter, when asked if they understood their said rights, they replied in the affirmative. The appraisal of their constitutional rights was done in the presence of their respective lawyers and in the Tagalog dialect, the language spoken and understood by them. Appellants Arnaldo and Flores and their respective counsels, Atty. Uminga and Atty. Rous, also signed and thumbmarked the extra-judicial confessions. Atty. Uminga and Atty. Rous attested to the veracity of the afore-cited facts in their respective court testimonies.77 Indeed, the appraisal of appellants’ constitutional rights was not merely perfunctory, because it appeared certain that appellants had understood and, in fact, exercised their fundamental rights after being informed thereof. Records reflect that appellants Arnaldo and Reyes were likewise accorded their right to competent and independent counsel during their respective custodial investigations. As regards appellant Arnaldo, Atty. Uminga testified that prior to the questioning of appellant Arnaldo about the incident, Atty. Uminga told the PAOCTF investigators and agents to give him and appellant Arnaldo space and privacy, so that they could freely converse. After the PAOCTF investigators and agents left them, he and appellant Arnaldo went to a cubicle where only the two of them were present. He interviewed appellant Arnaldo in the Tagalog language regarding the latter’s personal circumstances and asked him why he was in the PAOCTF office and why he wanted a lawyer. Appellant Arnaldo replied that he wanted to make a confession about his participation in the kidnapping of the Yao family. Thereupon, he asked appellant Arnaldo if the latter would accept his assistance as his lawyer for purposes of his confession. Appellant Arnaldo agreed. He warned appellant Arnaldo that he might be sentenced to death if he confessed involvement in the incident. Appellant Arnaldo answered that he would face the consequences because he was bothered by his conscience. He inquired from appellant Arnaldo if he was harmed or intimidated into giving self-incriminating statements to the PAOCTF investigators. Appellant Arnaldo answered in the negative. He requested appellant Arnaldo to remove his shirt for him to check if there were torture marks on his body, but he found none. He also observed that appellant Arnaldo’s appearance and movements were normal. His conference with appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the PAOCTF investigators to question appellant Arnaldo. 78 Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and listened to the latter’s entire confession. After the taking of appellant Arnaldo’s confession, Atty. Uminga requested the PAOCTF investigators to give him a copy of appellant Arnaldo’s confession. Upon obtaining such copy, he read it entirely and thereafter gave it to appellant Arnaldo. He instructed appellant Arnaldo to read and comprehend the same carefully. He told appellant Arnaldo to ask him for clarification and comment if he did not agree or understand any part of his written confession. Appellant Arnaldo read his entire written confession and handed it to him. Atty. Uminga asked him if he had objections to it. Appellant Arnaldo replied in the negative. He then reminded appellant Arnaldo that the latter could still change his mind, and

that he was not being forced to sign. Appellant Arnaldo manifested that he would sign his written confession. Later, he and appellant Arnaldo affixed their signatures to the written confession. 79 With respect to appellant Flores, Atty. Rous declared that before the PAOCTF investigators began questioning appellant, Atty. Rous interviewed him in Tagalog inside a room, where only the two of them were present. He asked appellant Flores about his personal circumstances. Appellant Flores replied that he was a suspect in the kidnapping of the Yao family, and he wanted to give a confession regarding his involvement in the said incident. He asked appellant Flores whether he would accept his assistance as his lawyer. Appellant Flores affirmed that he would. He asked appellant Flores why he wanted to give such confession. Appellant Flores answered that he was bothered by his conscience. Atty. Rous warned appellant Flores that his confession would be used against him in a court of law, and that the death penalty might be imposed on him. Appellant Flores told him that he wanted to tell the truth and unload the burden on his mind. He requested appellant Flores to lift his shirt for the former to verify if there were torture marks or bruises on his body, but found none. Again, he cautioned appellant Flores about the serious consequences of his confession, but the latter maintained that he wanted to tell the truth. Thereafter, he permitted the PAOCTF investigators to question appellant Flores.80 Additionally, Atty. Rous stayed with appellant Flores while the latter was giving statements to the PAOCTF investigators. After the taking of appellant Flores’ statements, he instructed appellant Flores to read and check his written confession. Appellant Flores read the same and made some minor corrections. He also read appellant Flores’ written confession. Afterwards, he and appellant Flores signed the latter’s written confession.81 It is true that it was the PAOCTF which contacted and suggested the availability of Atty. Uminga and Atty. Rous to appellants Arnaldo and Flores, respectively. Nonetheless, this does not automatically imply that their right to counsel was violated. What the Constitution requires is the presence of competent and independent counsel, one who will effectively undertake his client’s defense without any intervening conflict of interest.82 There was no conflict of interest with regard to the legal assistance rendered by Atty. Uminga and Atty. Rous. Both counsels had no interest adverse to appellants Arnaldo and Flores. Although Atty. Uminga testified that he was a former National Bureau of Investigation (NBI) agent, he, nevertheless, clarified that he had been separated therefrom since 1994 83 when he went into private practice. Atty. Uminga declared under oath that he was a private practitioner when he assisted appellant Arnaldo during the custodial investigation.84 It appears that Atty. Uminga was called by the PAOCTF to assist appellant Arnaldo, because Atty. Uminga’s telephone number was listed on the directory of his former NBI officemates detailed at the PAOCTF. Atty. Rous, on the other hand, was a member of the Free Legal Aid Committee of the Integrated Bar of the Philippines, Quezon City at the time he rendered legal assistance to appellant Flores.85Part of Atty. Rous’ duty as member of the said group was to render legal assistance to the indigents including suspects under custodial investigation. There was no evidence showing that Atty. Rous had organizational or personal links to the PAOCTF. In fact, he proceeded to the PAOCTF office to assist appellant Flores, because he happened to be the lawyer manning the office when the PAOCTF called. 86 In People v. Fabro,87 we stated: The Constitution further requires that the counsel be independent; thus, he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly

adverse to that of the accused. Atty. Jungco does not fall under any of said enumeration. Nor is there any evidence that he had any interest adverse to that of the accused. The indelible fact is that he was president of the Zambales Chapter of the Integrated Bar of the Philippines, and not a lackey of the lawmen. Further, as earlier stated, under Section 12(1), Article III of the 1987 Constitution, an accused is entitled to have competent and independent counsel preferably of his own choice. The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. Otherwise, the tempo of custodial investigation would be solely in the hands of the accused who can impede, nay, obstruct, the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.88While the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel – or where the preferred lawyer is not available – is naturally lodged in the police investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection to the counsel’s appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer.89 Appellants Arnaldo and Flores did not object to the appointment of Atty. Uminga and Atty. Rous as their lawyers, respectively, during their custodial investigation. Prior to their questioning, appellants Arnaldo and Flores conferred with Atty. Uminga and Atty. Rous. Appellant Arnaldo manifested that he would be assisted by Atty. Uminga, while appellant Flores agreed to be counseled by Atty. Rous. Atty. Uminga and Atty. Rous countersigned the written extra-judicial confessions of appellants Arnaldo and Flores, respectively. Hence, appellants Arnaldo and Flores are deemed to have engaged the services of Atty. Uminga and Atty. Rous, respectively. Since the prosecution has sufficiently established that the respective extra-judicial confessions of appellant Arnaldo and appellant Flores were obtained in accordance with the constitutional guarantees, these confessions are admissible. They are evidence of a high order because of the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime, unless prompted by truth and conscience.90 Consequently, the burden of proving that undue pressure or duress was used to procure the confessions rests on appellants Arnaldo and Flores.91 In the case at bar, appellants Arnaldo and Flores failed to discharge their burden of proving that they were forced or coerced to make their respective confessions. Other than their self-serving statements that they were maltreated by the PAOCTF officers/agents, they did not present any plausible proof to substantiate their claims.lawphil.net They did not submit any medical report showing that their bodies were subjected to violence or torture. Neither did they file complaints against the persons who had allegedly beaten or forced them to execute their respective confessions despite several opportunities to do so. Appellants Arnaldo and Flores averred that they informed their family members/relatives of the alleged maltreatment, but the latter did not report such allegations to proper authorities. On the contrary, appellants Arnaldo and Flores declared in their respective confessions that they were not forced or harmed in giving their sworn statements, and that they were not promised or given any award in consideration of the same. Records also bear out that they were physically examined by doctors before they made their confessions. 92Their physical examination reports certify that no external signs of physical injury or any form of trauma were noted during their examination.93 In People v. Pia,94 we held that the following factors indicate voluntariness of an extra-judicial confession: (1) where the accused failed to present credible evidence of compulsion or

duress or violence on their persons; (2) where they failed to complain to the officers who administered the oaths; (3) where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; (4) where there appeared to be no marks of violence on their bodies; and (5) where they did not have themselves examined by a reputable physician to buttress their claim. It should also be noted that the extra-judicial confessions of appellants Arnaldo and Flores are replete with details on the manner in which the kidnapping was committed, thereby ruling out the possibility that these were involuntarily made. Their extra-judicial confessions clearly state how appellants and their cohorts planned the kidnapping as well as the sequence of events before, during and after its occurrence. The voluntariness of a confession may be inferred from its language if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused.95 With respect to appellant Reyes’s claim that the extra-judicial confessions of appellants Arnaldo and Flores cannot be used in evidence against him, we have ruled that although an extra-judicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his co-accused.96 In People v. Alvarez,97 we ruled that where the confession is used as circumstantial evidence to show the probability of participation by the coconspirator, that confession is receivable as evidence against a co-accused. In People v. Encipido98 we elucidated as follows: It is also to be noted that APPELLANTS’ extrajudicial confessions were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latter’s actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. Appellants Arnaldo and Flores stated in their respective confessions that appellant Reyes participated in their kidnapping of the Yao family. These statements are, therefore, admissible as corroborative and circumstantial evidence to prove appellant Reyes’ guilt. Nevertheless, even without the extra-judicial confessions of appellants Arnaldo and Flores, evidence on record is sufficient to sustain a finding of culpability of appellant Reyes. As earlier found, Abagatnan, Robert and Yao positively identified appellant Reyes as one of their kidnappers. They specifically testified that during the incident, appellant Reyes (1) approached and pointed a gun at Yao San and dragged the latter inside the van; and (2) accompanied Abagatnan and Robert in going to the poultry farm to search for and remind Yao San about the ransom demanded. The RTC, Court of Appeals and this Court found such testimonies credible.

Appellants argue that their alibis cast reasonable doubt on their alleged guilt. Appellant Reyes avers that he could not have been one of those who kidnapped the Yao family on the night of 16 July 1999 at around 11:00 p.m., because he was sleeping with his family in their residence during such time and date. Likewise, appellant Flores asseverates that he could not have been present at the crime scene on such date and time, as he was already sleeping in his sister’s house at Antipolo City. For his part, appellant Arnaldo asserts that he is a victim of a police frame-up. He alleges that he was an asset of the PAOCTF, but was later utilized as a drug pusher by the said agency. Upon failing to remit the proceeds of a shabu sale to the PAOCTF officers, he was beaten up and included as accused in the kidnapping of the Yao family. Alibi is the weakest of all defenses, for it is easy to contrive and difficult to prove. Alibi must be proved by the accused with clear and convincing evidence; otherwise it cannot prevail over the positive testimonies of credible witnesses who testify on affirmative matters. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.99 The defense of frame-up, like alibi, has been invariably viewed by this Court with disfavor, for it can easily be concocted but is difficult to prove. In order to prosper, the defense of frame-up must be proved by the accused with clear and convincing evidence.100 It should be observed that the family residence/house of appellant Reyes where he claimed to have slept when the incident occurred is located within Brgy. Sto. Cristo, San Jose del Monte, Bulacan. 101 This is the same barangay where the Yao family’s poultry farm is situated. Appellant Reyes, in fact, admitted that the poultry farm is near his residence.102 There is a huge possibility that appellant Reyes slept for a while, woke up before 11:00 p.m., and thereafter proceeded to the Yao family’s poultry farm to participate in the kidnapping of the family. The same is true with appellant Flores. Wilfredo, appellant Flores’ nephew, testified that he and appellant went to bed and slept together in the house of appellant’s sister in Antipolo City at about 8:00 p.m. of 16 July 1999. 103 It is greatly possible that Wifredo did not notice when appellant Flores woke up later at 9:00 p.m. and immediately proceeded to the Yao family’s poultry farm to participate in the kidnapping of the family, arriving therein at about 11:00 p.m. It is a fact that a person coming from Antipolo City may reach San Jose del Monte, Bulacan in two hours via a motor vehicle, considering that there was no more heavy traffic at that late evening. Obviously, appellants Reyes and Flores failed to prove convincingly that it was physically impossible for them to be at the crime scene during the incident. Appellant Flores submitted two pictures which, according to him, show that he worked as a construction worker from 12 July 1999 up to 30 July 1999 while staying in his sister’s house at Antipolo City. These pictures, however, do not clearly and convincingly support such claim, because (1) the pictures were undated; (2) the shots were taken from a far distance; and (3) the face of the man in the pictures which appellant Flores claims as his is blurred, unrecognizable and almost hidden, as such person is wearing a cap and is in a position where only the right and back portions of his head and body are visible. Appellant Arnaldo also failed to prove with convincing evidence his defense of frame-up. Aside from his self-serving testimony that he was a former PAOCTF agent and that he was beaten and included as accused

in the kidnapping of the Yao family by the PAOCTF agents because he failed to remit to the PAOCTF officers the proceeds of his sale of shabu, he did not present convincing proof to support said allegations. He submitted the calling card of Colonel Mancao, which appears to have been signed by the latter at the back portion, but there is nothing on it which indicates or verifies that appellant Arnaldo was indeed a former PAOCTF agent. He also submitted a prayer book containing his handwritten narration of torture he allegedly experienced at the hands of the PAOCTF agents, but this does not conclusively show that he was beaten by the PAOCTF agents. As we earlier found, appellant Arnaldo did not produce any medical records/certificates or file any complaint against the PAOCTF agents to bolster his claim of maltreatment. It is true that the alibis of appellants Reyes and Flores and the defense of frame-up of appellant Arnaldo were corroborated on some points by the testimonies of some of their relatives/friends. We have, however, held that alibi and the defense of frame-up become less plausible when they are corroborated only by relatives and friends because of perceived partiality.104 Indeed, the positive and credible testimonies of Abagatnan, Robert and Yao San prevail over the alibis and defense of frame-up of appellants.105 We shall now determine the propriety of appellants’ conviction for the special complex crime of kidnapping for ransom with homicide and the corresponding penalties imposed. Under Article 267 of the Revised Penal Code, the crime of kidnapping is committed with the concurrence of the following elements: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping is illegal; and (4) in the commission of the offense, any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer. 106 All of the foregoing elements were duly establish by the testimonial and documentary evidences for the prosecution in the case at bar. First, appellants and their cohorts are private individuals. Second, appellants and their cohorts kidnapped the Yao family by taking control of their van and detaining them in a secluded place. Third, the Yao family was taken against their will. And fourth, threats to kill were made and the kidnap victims include females. Republic Act No. 7659 provides that the death penalty shall be imposed if any of the two qualifying circumstances is present in the commission of the kidnapping: (1) the motive of the kidnappers is to extort ransom for the release of the kidnap victims, although none of the circumstances mentioned under paragraph four of the elements of kidnapping were present. Ransom means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity.107 Whether or not the ransom is actually paid to or received by the perpetrators is of no moment.108 It is sufficient that the kidnapping was committed for the purpose of exacting ransom; 109 and (2) the kidnap victims were killed or died as a consequence of the kidnapping or was raped, or subjected to torture or dehumanizing acts. Both of these qualifying circumstances are alleged in the information and proven during trial.

As testified to by Abagatnan, Robert and Yao San, appellants and their cohorts demanded the amount of ₱5 million for the release of Chua Ong Pong Sim and Raymond. In fact, Yao San went to the Usan dumpsite, Litex Road, Fairview, Quezon City, to hand over the ransom money to appellants and their cohorts, but the latter did not show up. It was also apparent that Chua Ong Ping Sim and Raymond were killed or died during their captivity. Yao San declared that appellants and their cohorts called up and told him that they would kill Chua Ong Ping Sim and Raymond who were still under their custody, because they heard the radio report that the incident was already known to the police. True to their threats, the corpses of Chua Ong Ping Sim and Raymond were later found dumped in La Mesa Dam. Their respective death certificates show that they died of asphyxia by strangulation. Withal, the death penalty cannot be imposed on the appellants in view of the passage of Republic Act No. 9346 on 24 June 2006 prohibiting the imposition of death penalty in the Philippines. In accordance with Sections 2 and 3 thereof, the penalty that should be meted out to the appellants is reclusion perpetua without the possibility of parole. The Court of Appeals, therefore, acted accordingly in imposing the penalty of reclusion perpetua without the possibility of parole on each of the appellants. The Court of Appeals was also correct in ordering appellants to jointly and severally pay civil indemnity and exemplary damages to the Yao family. Nonetheless, their corresponding amounts should be modified. In People v. Quiachon,110 we explained that even if the death penalty was not to be imposed on accused because of the prohibition in Republic Act No. 9346, the civil indemnity of ₱75,000.00 was still proper, as the said award was not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As earlier stated, both the qualifying circumstances of demand for ransom and the double killing or death of two of the kidnap victims were alleged in the information and proven during trial. Thus, for the twin deaths of Chua Ong Ping Sim and Raymond, their heirs (Yao San, Robert, Lenny, Matthew and Charlene) are entitled to a total amount of ₱150,000.00 as civil indemnity. Exemplary damages are imposed by way of example or correction for the public good. 111 In criminal offenses, exemplary damages may be recovered when the crime was committed with one or more aggravating circumstances, whether ordinary or qualifying.112 Since both the qualifying circumstances of demand for ransom and the killing or death of two of the kidnap victims (Chua Ong Ping Sim and Raymond) while in captivity were alleged in the information and proven during trial, and in order to deter others from committing the same despicable acts, the award of exemplary damages is proper. The total amount of ₱100,000.00 as exemplary damages should be modified. In several cases,113 we awarded an amount of ₱100,000.00 to each of the kidnap victims. As in this case, the amount of ₱100,000.00 as exemplary damages should be awarded each to Yao San, Robert, Lenny, Matthew, Charlene, Abagatnan and Ortea. This makes the total amount of exemplary damages add up to ₱700,000.00. The appellate court aptly held that the award of moral damages is warranted. Under Article 2217 of the New Civil Code, moral damages include physical suffering, mental anguish, fright, serious anxiety, wounded feelings, moral shock and similar injury. Article 2219 of the same Code provides that moral damages may be recovered in cases of illegal detention. There is no doubt that each member of the Yao family suffered physical and/or psychological trauma because of the ordeal, especially because two of the family members were ruthlessly killed during their captivity. Pursuant to prevailing jurisprudence, 114 Yao San, Robert, Lenny, Matthew, Charlene, Abagatnan and Ortea should each receive the amount of

₱100,000.00 as moral damages. Per computation, the total amount of moral damages is ₱700,000.00 and not ₱500,000.00 as fixed by the RTC and the Court of Appeals. Finally, we observed that the RTC and the Court of Appeals denominated the crime committed by appellants in the present case as the special complex crime of kidnapping for ransom with double homicide since two of the kidnap victims were killed or died during the kidnapping. The word "double" should be deleted therein. Regardless of the number of killings or deaths that occurred as a consequence of the kidnapping, the appropriate denomination of the crime should be the special complex crime of kidnapping for ransom with homicide. WHEREFORE, the Decision, dated 14 August 2006, and Resolution, dated 18 October 2006, of the Court of Appeals in CA-G.R. CR-H.C. No. 02301 is hereby AFFIRMED with the following MODIFICATIONS: (1) the total amount of civil indemnity is ₱150,000.00; (2) the total amount of exemplary damages is ₱700,000.00; (3) the total amount of moral damages is ₱700,000.00; and (4) the appropriate denomination of the crime committed by appellants is the special complex crime of kidnapping for ransom with homicide. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice