Crim2 Second Set Of Cases.docx

EN BANC G.R. No. 39085

September 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle, vs. ANTONIO YABUT, defendant-appellant. Felipe S. Abeleda for appellant. Office of the Solicitor-General Hilado for appellee. BUTTE, J.: This is an appeal from the judgment of the Court of First Instance of Manila, convicting the appellant of the crime of murder and assessing the death penalty. The appellant, Yabut, was charged in the Court of First Instance of Manila with the crime of murder upon the following information: That on or about the 1st day of August, 1932, in the City of Manila, Philippine Islands, the accused Antonio Yabut, then a prisoner serving sentence in the Bilibid Prison, in said city, did then and there, with intent to kill, wilfully, unlawfully, feloniously and treacherously, assault, beat and use personal violence upon one Sabas Aseo, another prisoner also serving sentence in Bilibid, by then and there hitting the said Sabas Aseo suddenly and unexpectedly from behind with a wooden club, without any just cause, thereby fracturing the skull of said Sabas Aseo and inflicting upon him various other physical injuries on different parts of the body which caused the death of the latter about twenty-four (24) hours thereafter. That at the time of the commission of this offense, the said Antonio Yabut was a recidivist, he having previously been convicted twice of the crime of homicide and once of serious physical injuries, by virtue of final sentences rendered by competent tribunals. Upon arraignment, the accused plead not guilty. The court below made the following findings of fact which, from an independent examination of the entire testimony, we are convinced, are supported by the evidence beyond reasonable doubt: La brigada de presos, conocida como Brigada 8-A Carcel, el 1.º de agosto de 1932, estaba compuesta de unos 150 o mas penados, de largas condenas, al mando del preso Jose Villafuerte, como Chief Squad Leader, y del preso Vicente santos, como su auxiliar. forman parte de esta brigada el occiso Sabas Aseo, o Asayo, el acusado Antonio Yabut y los presos llamados Apolonio Saulo, Isaias Carreon, Melecio Castro, Mateo Bailon y los moros Taladie y Hasan. Entre siete y media y ocho de la noche de la fecha de autos, estando ya cerrado el pabellon de la brigada, pues se aproximaba la hora del descanso y silencio dentro de la prision, mientras el jefe bastonero Villafuerte se hallaba sentado sobre su mesa dentro de la brigada, vio al preso Carreon cerca de el, y en aquel instante el acusado Yabut, dirigiendose a Carreon, le dijo que, si no cobrada a uno que la debia, el (Yabut) le abofetearia. El jefe bastonero Villafuerte trato de imponer silencio y dijo a los que hablaban que se apaciguaran; pero, entre tanto, el preso Carreon se encaro con el otro preso Saulo cobrandole dos cajetillas de cigarillos de diez centimos cada una que le debia. Saulo contesto que ya le pagaria, pero Carreon, por toda contestacion, pego en la cara a saulo y este quedo desvanecido. En vista de esto, el jefe bastonero se dirigio a su cama para sacar la porra que estaba autorizado a llevar. Simultaneamente Villafuerte vio que el preso Yabut pegaba con un palo (Exhibit C) al otro preso Sabas Aseo, o Asayo, primeramente en la nuca y despues en la cabeza, mientras estaba de espaldas el agregido Sabas, quien, al recibir el golpe en la nuca, se inclino hacia delante, como si se agachara, y en ese momento el acusado Yabut dio un paso hacia delante y con el palo de madera que portaba dio otro golpe en la cabeza a Sabas Aseo, quien cayo al suelo. El jefe bastonero Villafuerte se acerco al agresor Yabut para desarmarle, pero este le dijo: "No te acerques; de otro modo, moriras." No obstante la actitud amenazadora de Yabut, Villafuerte se acerco y Yabut quiso darle un golpe que iba dirigido a la cabeza, pero Villafuerte lo pudo desviar pcon la porra que Ilevaba. Los dos lucharon y Ilegaron a abrazarse hasta que se le deslizo a Villafuerte la porra que llevaba. Continuaron luchando ambos y el acusado Yabut llego a soltar el palo Exhibit C con que acometia a Villafuerte y habia malherido al preso Sabas Aseo. Despues de aquello, Yabut consiguio zafarse de Villafuerte y se dirigio al otro extremo de la brigada, escondiendose dentro del baño y alli fue cogido inmediatamente despues del suceso por el preso Proceso Carangdang, que desempenaba el cargo de sargento de los policias de la prision. We reject, as unworthy of belief, the testimony of Yabut that it was Villafuerte, not he, who gave the fatal blow to the deceased Aseo. The testimonies of Santiago Estrada, resident physician of the Bureau of Prisons and Dr. Pablo Anzures of the Medico Legal Department of the University of the Philippines, clearly establish that the death of Aseo was caused by subdural and cerebral hemorrhages following the fracture of the skull resulting from the blow on the head of Aseo. They further confirm the testimony of the four eyewitnesses that the deceased was struck from behind.

On appeal to this court, the appellant advances the following assignments of error: 1. The lower court erred in applying article 160 of the Revised Penal Code. 2. The lower court erred in holding that the evidence of the defense are contradictory and not corroborated. 3. The lower court erred in holding that the crime of murder was established by appreciating the qualifying circumstance of alevosia. 4. The lower court erred in finding the accused guilty of the crime of murder beyond reasonable doubt. In connection with the first assignment of error, we quote article 160 of the Revised Penal Code, in the Spanish text, which is decisive: Comision de un nuevo delito durante el tiempo de la condena por otro anterior — Pena. — Los que comentieren algun delito despues de haber sino condenados por sentencia firme no empezada a cumpir, o durante el tiempo de su condena, seran castigados con la pena señalada por la ley para el nuevo delito, en su grado maximo, sin perjuicio de lo dispuesto en la regla 5.a del articulo 62. El penado conprendidoen este articulo se no fuere un delincuente habitual sera indultado a los setenta años, si hubiere ya cumplido la condena primitiva, o cuando llegare a cumplirla despues de la edad sobredicha, a no ser que por su conducta a por otras circunstancias no fuere digno de la gracia. The English translation of article 160 is as follows: Commission of another crime during service of penalty imposed for another previous offense — Penalty. — Besides the provisions of rule 5 of article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of seventy years if he shall have already served out his original sentence, or when he shall complete it after reaching said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency. The appellant places much stress upon the word "another" appearing in the English translation of the headnote of article 160 and would have us accept his deduction from the headnote that article 160 is applicable only when the new crime which is committed by a person already serving sentence is different from the crime for which he is serving sentence. Inasmuch as the appellant was serving sentence for the crime of homicide, the appellant contends the court below erred in applying article 160 in the present case which was a prosecution for murder (involving homicide). While we do not concede that the appellant is warranted in drawing the deduction mentioned from the English translation of the caption of article 160, it is clear that no such deduction could be drawn from the caption. Apart from this, however, there is no warrant whatever for such a deduction (and we do not understand the appellant to assert it) from the text itself of article 160. The language is plain and unambiguous. There is not the slightest intimation in the text of article 160 that said article applies only in cases where the new offense is different in character from the former offense for which the defendant is serving the penalty. It is familiar law that when the text itself of a statute or a treaty is clear and unambiguous, there is neither necessity nor propriety in resorting to the preamble or headings or epigraphs of a section of interpretation of the text, especially where such epigraphs or headings of sections are mere catchwords or reference aids indicating the general nature of the text that follows. (Cf. In re Estate of Johnson, 39 Phil., 156, 166.) A mere glance at the titles to the articles of the Revised Penal code will reveal that they were not intended by the Legislature to be used as anything more than catchwords conveniently suggesting in a general way the subject matter of each article. Being nothing more than a convenient index to the contents of the articles of the Code, they cannot, in any event have the effect of modifying or limiting the unambiguous words of the text. Secondary aids may be consulted to remove, not to create doubt. The remaining assignments of error relate to the evidence. We have come to the conclusion, after a thorough examination of the record, that the findings of the court below are amply sustained by the evidence, except upon the fact of the existence of treachery (alevosia). As some members of the court entertain a reasonable doubt that the existence of treachery (alevosia) was established, it results that the penalty assessed by the court below must be modified. We find the defendant guilty of homicide and, applying article 249 of the Revised Penal Code in connection with article 160 of the same, we sentence the defendant- appellant to the maximum degree of reclusion temporal, that is to say, to twenty years of confinement and to indemnify the heirs of the deceased Sabas Aseo (alias Sabas Asayo), in the sum of P1,000. Costs de oficio. Avanceña, C.J., Street, Malcolm, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur. FIRST DIVISION

January 11, 2018 G.R. No. 212448 AAA, Petitioner vs. BBB, Respondent DECISION TIJAM, J.: May Philippine courts exercise jurisdiction over an offense constituting psychological violence under Republic Act (R.A.) No. 9262,1 otherwise known as the Anti-Violence Against Women and their Children Act of 2004, committed through marital infidelity, when the alleged illicit relationship occurred or is occurring outside the country? The above question is addressed to this Court in the present Petition2 for the issuance of a writ of certiorari under Rule 45 of the Rules of Court, to nullify the Resolutions dated February 24, 2014 3 and May 2, 20144 of the Regional Trial Court (RTC) of Pasig City, Branch 158, in Criminal Case No. 146468. The assailed resolutions granted the motion to quash the Information 5 which charged respondent BBB under Section 5(i) of R.A. No. 9262, committed as follows: On or about April 19, 2011, in Pasig City, and within the jurisdiction of this Honorable Court, [BBB], being then legally married to [AAA], caused herein [AAA] mental and emotional anguish by having an illicit relationship with a certain Lisel Mok as confirmed by his photograph with his purported paramour Lisel Mok and her children and the e-mailed letter by his mother mentioning about the said relationship, to the damage and prejudice of [AAA], in violation of the aforecited law. Contrary to law. We briefly recount the antecedents. Petitioner AAA and BBB were married on August 1, 2006 in Quezon City. Their union produced two children: CCC was born on March 4, 2007 and DDD on October 1, 2009.6 In May of 2007, BBB started working in Singapore as a chef, where he acquired permanent resident status in September of 2008. This petition nonetheless indicates his address to be in Quezon City where his parents reside and where AAA also resided from the time they were married until March of 2010, when AAA and their children moved back to her parents' house in Pasig City. 7 AAA claimed, albeit not reflected in the Information, that BBB sent little to no financial support, and only sporadically. This allegedly compelled her to fly extra hours and take on additional jobs to augment her income as a flight attendant. There were also allegations of virtual abandonment, mistreatment of her and their son CCC, and physical and sexual violence. To make matters worse, BBB supposedly started having an affair with a Singaporean woman named Lisel Mok with whom he allegedly has been living in Singapore. Things came to a head on April 19, 2011 when AAA and BBB had a violent altercation at a hotel room in Singapore during her visit with their kids. 8 As can be gathered from the earlier cited Information, despite the claims of varied forms of abuses, the investigating prosecutor found sufficient basis to charge BBB with causing AAA mental and emotional anguish through his alleged marital infidelity. 9 The Information having been filed, a warrant of arrest was issued against BBB. AAA was also able to secure a Hold-Departure Order against BBB who continued to evade the warrant of arrest. Consequently, the case was archived. 10 On November 6, 2013, an Entry of Appearance as Counsel for the Accused With Omnibus Motion to Revive Case, Quash Information, Lift Hold Departure Order and Warrant of Arrest11 was filed on behalf of BBB. Granting the motion to quash on the ground of lack of jurisdiction and thereby dismissing the case, the trial court reasoned: Here, while the Court maintains its 28 October 2011 ruling that probable cause exists in this case and that [BBB] is probably guilty of the crime charged, considering, however, his subsequent clear showing that the acts complained of him had occurred in Singapore, dismissal of this case is proper since the Court enjoys no jurisdiction over the offense charged, it having transpired outside the territorial jurisdiction of this Court. xxxx The Court is not convinced by .the prosecution's argument that since [AAA] has been suffering from mental and emotional anguish "wherever she goes'', jurisdiction over the offense attaches to this Court notwithstanding that the acts resulting in said suffering had happened

outside of the Philippines. To the mind of the Court, with it noting that there is still as yet no jurisprudence on this score considering that Republic Act 9262 is relatively a new law, the act itself which had caused a woman to suffer mental or emotional anguish must have occurred within the territorial limits of the Court for it to enjoy jurisdiction over the offense. This amply explains the use of the emphatic word "causing" in the provisions of Section 5(i), above, which denotes the bringing about or into existence of something. Hence, the mental or emotional anguish suffered by a woman must have been brought about or into existence by a criminal act which must logically have occurred within the territorial limits of the Court for jurisdiction over the offense to attach to it. To rule otherwise would violate or render nugatory one of the basic characteristics of our criminal laws - territoriality. In the listing provided in the law itself - "repeated verbal and emotional abuse, and denial of financial support or custody of minor children of (sic) access to the woman's child/children" - it becomes clear that there must be an act which causes the "mental or emotional anguish, public ridicule or humiliation", and it is such act which partakes of a criminal nature. Here, such act was the alleged maintenance of "an illicit relationship with a certain Liesel Mok" - which has been conceded to have been committed in Singapore. Granting, without conceding, that the law presents ambiguities as written, quashal of the Information must still be ordered following the underlying fundamental principle that all doubts must be resolved in favor of [BBB]. At best, the Court draws the attention of Congress to the arguments on jurisdiction spawned by the law. 12 (Emphasis in the original) Aggrieved by the denial of the prosecution's motion for reconsideration of the dismissal of the case, AAA sought direct recourse to this Court via the instant petition on a pure question of law. AAA posits that R.A. No. 9262 is in danger of becoming transmogrified into a weak, wobbly, and worthless law because with the court a quo's ruling, it is as if husbands of Filipino women have been given license to enter into extra-marital affairs without fear of any consequence, as long as they are carried out abroad. In the main, AAA argues that mental and emotional anguish is an essential element of the offense charged against BBB, which is experienced by her wherever she goes, and not only in Singapore where the extra-marital affair takes place; thus, the RTC of Pasig City where she resides can take cognizance of the case. In support of her theory, AAA draws attention to Section 7 of R.A. No. 9262, which provides: Sec. 7. Venue - The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant. (Emphasis ours) As to the ambiguity in the law hypothetically referred to in the assailed order, AAA directs us to: Section 4. Construction.- This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. In his Comment13 filed on January 20, 2015, BBB contends that the grant of the motion to quash is in effect an acquittal; that only the civil aspect of a criminal case may be appealed by the private offended party; and. that this petition should be dismissed outright for having been brought before this Court by AAA instead of the Office of the Solicitor General (OSG) as counsel for the People in appellate proceedings. BBB furthermore avers that the petition was belatedly filed. We tackle first the threshold issue of whether or not this Court should entertain the petition. It must be stated beforehand that BBB is plainly mistaken in asserting that the instant petition was belatedly filed. The date erroneously perceived by BBB as the date of AAA's Motion for Extension14 was filed - June 2, 2014 - refers to the date of receipt by the Division Clerk of Court and not the date when the said motion was lodged before this Comi. The motion was in fact filed on May 27, 2014, well within the period that AAA had under the Rules of Court to file the intended petition. Thus, considering the timeliness of the motion, this Comi in a Resolution15 dated June 9, 2014, granted AAA an additional period of thirty (30) days or until June 26, 2014 to file a petition for review. In AAA's motion for extension of time, it was mentioned that she was awaiting the OSG's response to her Letter16dated May 26, 2014 requesting for representation. Since, the OSG was unresponsive to her plea for assistance in filing the intended petition, AAA filed the present petition in her own name before the lapse of the extension given her by this Court or on June 25, 2014. We find that under the circumstances, the ends of substantial justice will be better served by entertaining the petition if only to resolve the question of law lodged before this Court. In Morillo v. People of the Philippines, et al., 17 where the Court entertained a Rule 45 petition which raised only a question of law filed by the private offended party in the absence of the OSG's participation, we recalled the instances when the Court permitted an offended party to file an appeal without the intervention of the OSG. One such instance is when the interest of substantial justice so requires.18 Morillo, 19 also differentiated between dismissal and acquittal, thus:

Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond a reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the proceeding, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. The only case in which the word dismissal is commonly but not correctly used, instead of the proper term acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such case the dismissal is in reality an acquittal because the case is decided on the merits. If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted before the court of competent jurisdiction; and it is elemental that in such case, the defendant may again be prosecuted for the same offense before a court of competent jurisdiction.20(Citation omitted and emphasis in the original) The grant of BBB's motion to quash may not therefore be viewed as an acquittal, which in limited instances may only be repudiated by a petition for certiorari under Rule 65 upon showing grave abuse of discretion lest the accused would be twice placed in jeopardy. 21 Indubitably, "the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case only questions of law are raised or involved."22 "There is a question of law when the issue does not call for an examination of the probative value of the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the c01Tect application of law and jurisprudence on the matter."23 Further, the question of whether or not the RTC has jurisdiction in view of the peculiar provisions of R.A. No. 9262 is a question of law. Thus, in Morillo,24 the Court reiterated that: [T]he jurisdiction of the court is determined by the averments of the complaint or Information, in relation to the law prevailing at the time of the filing of the complaint or Information, and the penalty provided by law for the crime charged at the time of its commission. Thus, when a case involves a proper interpretation of the rules and jurisprudence with respect to the jurisdiction of courts to entertain complaints filed therewith, it deals with a question of law that can be properly brought to this Court under Rule 45. 25 (Citations omitted) We are not called upon in this case to determine the truth or falsity of the charge against BBB, much less weigh the evidence, especially as the case had not even proceeded to a full-blown trial on the merits. The issue for resolution concerns the correct application of law and jurisprudence on a given set of circumstances, i.e., whether or not Philippine courts are deprived of territorial jurisdiction over a criminal charge of psychological abuse under R.A. No. 9262 when committed through marital infidelity and the alleged illicit relationship took place outside the Philippines. The novelty of the issue was even recognized by the RTC when it opined that there is still as yet no jurisprudence on this score, prompting it to quash the Information even as it maintained its earlier October 28, 2011 ruling that probable cause exists in the case. 26 Calling the attention of Congress to the arguments on jurisdiction spawned by the law, 27 the RTC furnished copies of the assailed order to the House of Representatives and the Philippine Senate through the Committee on Youth, Women and Public Relations, as well as the Committee on Justice and Human Rights.28 The issue acquires special significance when viewed against the present economic reality that a great number of Filipino families have at least one parent working overseas. In. April to September 2016, the number of overseas Filipino workers who worked abroad was estimated at 2.2 million, 97.5 percent of which were comprised of overseas contract workers or those with existing work contract while 2.5 percent worked overseas without contract.29 It is thus necessary to clarify how R.A. No. 9262 should be applied in a question of territorial jurisdiction over a case of psychological abuse brought against the husband when such is allegedly caused by marital infidelity carried on abroad. Ruling of the Court There is merit in the petition. "Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common."30 In this regard, Section 3 of R.A. No. 9262 made it a point to encompass in a non-limiting manner the various forms of violence that may be committed against women and their children: Sec. 3. Definition of Terms. - As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts: A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: xxxx C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or .unwanted deprivation of the right to custody and/or visitation of common children. D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: xxxx As jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information, threshing out the essential elements of psychological abuse under R.A. No. 9262 is crucial. In Dinamling v. People,31 this Court already had occasion to enumerate the elements of psychological violence under Section 5(i) of R.A. No. 9262, as follows: Section 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children is committed through any of the following acts: xxxx (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or access to the woman's child/children. From the aforequoted Section 5(i), in relation to other sections of R[.]A[.] No. 9262, the elements of the crime are derived as follows: (1) The offended paiiy is a woma.J.1 and/or her child or children; (2) The woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender has a common child. As for the woman's child or children, they may be legitimate or illegitimate, or living within or without the family abode; (3) The offender causes on the woman and/or child mental or emotional anguish; and (4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and emotional abuse, denial of financial support or custody of minor children or access to the children or similar· such acts or omissions. xxxx It bears emphasis that Section 5(i) penalizes some forms of psychological violence that are inflicted on victims who are women and children. Other forms of psychological violence, as well as physical, sexual and economic violence, are addressed and penalized in other subparts of Section 5. xxxx Psychological violence is an. element of violation of Section 5(i) just like the mental or emotional anguish caused on the victim. Psychological violence is the means employed by the perpetrator, while mental or emotional anguish is the effect caused to or the damage sustained by the offended party. To establish psychological violence as an element of the crime, it is necessary to show proof of commission of any of the acts enumerated in Section 5(i) or similar such acts. And to establish mental or emotional anguish, it is necessary to present the testimony of the victim as such experiences are personal to this party. x x x. 32 (Citations omitted and emphasis ours) Contrary to the interpretation of the RTC, what R.A. No. 9262 criminalizes is not the marital infidelity per se but the psychological violence causing mental or emotional suffering on the wife. Otherwise stated, it is the violence inflicted under the said circumstances that the law seeks to outlaw. Marital infidelity as cited in the law is only one of the various acts by which psychological violence may be committed. Moreover, depending on the circumstances of the spouses and for a myriad of reasons, the illicit relationship may or may not even be causing mental or emotional anguish on the wife. Thus, the mental or emotional suffering of the victim is an essential and distinct element in the commission of the offense.

In criminal cases, venue is jurisdictional. Thus, in Trenas v. People,33 the Court explained that: The place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.1âwphi1 It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.34 (Emphasis in the original) In Section 7 of R.A. No. 9262, venue undoubtedly pertains to jurisdiction. As correctly pointed out by AAA, Section 7 provides that the case may be filed where the crime or any of its elements was committed at the option of the complainant. Which the psychological violence as the means employed by the perpetrator is certainly an indispensable element of the offense, equally essential also is the element of mental or emotional anguish which is personal to the complainant. The resulting mental or emotional anguish is analogous to the indispensable element of damage in a prosecution for estafa, viz: The circumstance that the deceitful manipulations or false pretenses employed by the accused, as shown in the vouchers, might have been perpetrated in Quezon City does not preclude the institution of the criminal action in Mandaluyong where the damage was consummated. Deceit and damage are the basic elements of estafa. The estafa involved in this case appears to be a transitory or continuing offense. It could be filed either in Quezon City or in Rizal. The theory is that a person charged with a transitory offense may be tried in any jurisdiction where the offense is in part committed. In transitory or continuing offenses in which some acts material and essential to the crime and requisite to its consummation occur in one province and some in another, the court of either province has jurisdiction to try the case, it being understood that the first court taking cognizance of the case will exclude the others x x x[.] 35 What may be gleaned from Section 7 of R.A. No. 9262 is that the law contemplates that acts of violence against women and their children may manifest as transitory or continuing crimes; meaning that some acts material and essential thereto and requisite in their consummation occur in one municipality or territory, while some occur in another. In such cases, the court wherein any of the crime's essential and material acts have been committed maintains jurisdiction to try the case; it being understood that the first court taking cognizance of the same excludes the other. Thus, a person charged with a continuing or transitory crime may be validly tried in any municipality or territory where the offense was in part committed.36 It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or act of violence under Section 5(i) of R.A. No. 9262 in relation to Section 3(a), Paragraph (C) was committed outside Philippine territory, that the victim be a resident of the place where the complaint is filed in view of the anguish suffered being a material element of the offense. In the present scenario, the offended wife and children of respondent husband are residents of Pasig City since March of 2010. Hence, the RTC of Pasig City may exercise jurisdiction over the case. Certainly, the act causing psychological violence which under the information relates to BBB's marital infidelity must be proven by probable cause for the purpose of formally charging the husband, and to establish the same beyond reasonable doubt for purposes of conviction. It likewise remains imperative to acquire jurisdiction over the husband. What this case concerns itself is simply whether or not a complaint for psychological abuse under R.A. No. 9262 may even be filed within the Philippines if the illicit relationship is conducted abroad. We say that even if the alleged extra-marital affair causing the offended wife mental and emotional anguish is committed abroad, the same does not place a prosecution under R.A. No. 9262 absolutely beyond the reach of Philippine courts. IN VIEW OF THE FOREGOING, the petition is GRANTED. The Resolutions dated February 24, 2014 and May 2, 2014 of the Regional Trial Court of Pasig City, Branch 158, in Criminal Case No. 146468 are SET ASIDE.Accordingly, the Information filed in Criminal Case No. 146468 is ordered REINSTATED. SO ORDERED. NOEL GIMENEZ TIJAM THIRD DIVISION G.R. No. 199522

June 22, 2015

RICKY DINAMLING, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION

PERALTA, J.: Before the Court is a Petition for Review on certiorari, under Rule 45 of the Rules of Court, assailing the Decision 1dated August 11, 2011 and Resolution2 dated November 25, 2011 of the Court of Appeals, in CA-G.R. CR No. 32912, which affirmed with modification the conviction of petitioner for violation of Section 5(i), in relation to Section 6(f) of Republic Act (RA) No. 9262, otherwise known as the AntiViolence Against Women and their Children Act of 2004 . The facts of the case follow. On the night of March 14, 2007,petitioner Ricky Dinamling and a friend came from a drinking session and went to the boarding house of AAA.3 At that time, Dinamling and the woman AAA were in an ongoing five-year relationship and they had two common children (then aged four and two years old). Dinamling and his friend arrived as AAA was putting the two children to bed. Suddenly, Dinamling started to evict AAA and the children, ordering AAA to pack her things in a trash bag and a carton box for ducklings. His reason for the eviction was that she was allegedly using the place as a "whore house" wherein she "brought (her) partners." AAA initially did not want to leave as she could not carry the children and their things, but she left when Dinamling threw a baby's feeding bottle outside the house, causing it to break. She then went to the house of BBB and requested the latter to fetch her children. When BBB and another friend went for the children, Dinamling already had left with the older child and only the baby was left. The baby was brought by the friends back to AAA. In the past, there were similar incidents that happened between Dinamling and AAA. Dinamling would hit AAA's head, pull her hair and kick her. When AAA went to the police, she was merely told that it was a family problem that could be talked over. Dinamling was, at that time, a policeman himself.4 Six days later, or on March 20, 2007, at around 9:00 p.m., another incident occurred. AAA was at the house of CCC when Dinamling arrived. He shouted and counted down for AAA to come out. When she came out, Dinamling punched her at the left ear, which subsequently bled. When AAA asked him why he kept on following her when she already had left him, Dinamling shouted her family name and told her she was "good-for-nothing." AAA left for the barangay captain's house, but Dinamling caught up with her and kicked her until she fell to the ground. On the road, Dinamling pulled down AAA's pants and panty and shouted at her while people looked on. Dinamling then threw the pants and panty back at AAA and shouted her family name. Dinamling, then intoxicated, left on a motorcycle. 5 AAA stayed at her friend's home until she felt some back pain in the next morning. She found out she was bleeding and about to miscarry so she was immediately brought to the hospital. There, she was told that she was 19 weeks pregnant and had an incomplete abortion. She was hospitalized for four days. Dinamling visited her but showed no remorse over his acts. 6 As a result of the above incidents, petitioner Ricky Dinamling was charged in two (2) criminal Informations in the Regional Trial Court (RTC) for violation of Section 5(i), in relation to Section 6(f)7 of RA No. 9262. The two Informations against him read: Criminal Case No. 1701: That on or about the evening of March 14, 2007, at XXX, Ifugao, the above-named accused did then and there willfully, unlawfully and feloniously inflict psychological violence upon AAA, a woman with whom he has two common children, resulting to mental and emotional anguish and public ridicule or humiliation by repeated verbal and emotional abuse consisting of several bad and insulting utterances directed against the victim and a feeding bottle being thrown against the latter in anger. CONTRARY TO LAW, with the offense being attended by the special qualifying aggravating circumstance of the victim being pregnant at the time. Criminal Case No. 1702: That on or about the evening of March 20, 2007 at XXX, Ifugao, the above-named accused did then and there willfully, unlawfully and feloniously inflict psychological violence upon AAA, a woman with whom he has two common children, resulting to mental and emotional anguish and public ridicule or humiliation by boxing the victim on the head, kicking her at the back and removing her pant(sic) and panty (sic). CONTRARY TO LAW, with the offense being attended by the special qualifying aggravating circumstance of the victim being pregnant at the time. Upon arraignment, Dinamling pleaded Not Guilty to both charges. Thereafter, the cases were tried jointly. 8 For the prosecution, AAA, her mother DDD and Dr. Mae Codamon Diaz testified. For the accused, only petitioner testified for and in his own defense. His defense was denial and alibi, claiming that he was on duty at the town's police station at the time that the offenses were committed.9

After trial, the RTC rendered its decision on August 4, 2009 finding Dinamling guilty of both charges. For Criminal Case No. 1701, the court sentenced him to suffer imprisonment of from ten (10) years and one (1) day to twelve (12) years of prision mayor. 10 For Criminal Case No. 1702, the court ordered him to suffer imprisonment of from ten (10) years and one (1) day to twelve (12) years of prision mayor in its maximum period. On appeal to the Court of Appeals, the decision in Criminal Case No. 1701 was affirmed and the one in Criminal Case No. 1702 was affirmed with the modification on the penalty, by applying the Indeterminate Sentence Law, such that Dinamling was sentenced to imprisonment of nine (9) years, four (4) months and one (1) day of prision mayor, as minimum, to twelve (12) years of prision mayor, as maximum. Hence, the present petition. The petition assails the findings of the Court of Appeals for allegedly disregarding his defenses of denial and alibi as well as in discounting the supposedly exculpatory nature of a part of a prosecution witness' testimony. Allegedly, the witness, Dr. Diaz, testified that she was unsure if the abortion was a result of the mauling that AAA suffered or could have been caused by an infection or other factors. 11 This Court resolves to deny the petition for lack of merit, but will modify some of the penalties imposed by the appellate court. The petition raises issues that call for an examination of the factual findings of the trial court and the appellate court. As a general rule, under Rule 45, no questions of fact but only questions of law may be raised in a petition for review brought before this Court. 12 Time and again, the Court has consistently declared that questions of facts are beyond the pale of a petition for review.13 Factual findings of the trial court, particularly when affirmed by the appellate courts, are generally binding on this Court.14 But there are recognized exceptions to the rule that questions of fact may not be entertained by this Court in a petition for review, to wit: (1) When the factual findings of the Court of Appeals and the trial court are contradictory; (2) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (3) When the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) When there is grave abuse of discretion in the appreciation of facts; (5) When the appellate court, in making its findings, went beyond the issues of the case, and such findings are contrary to the admissions of both appellant and appellee; (6) When the judgment of the Court of Appeals is premised on a misapprehension of facts; (7) When the Court of Appeals failed to notice certain relevant facts which, if properly considered, would justify a different conclusion; (8) When the findings of fact are themselves conflicting; (9) When the findings of fact are conclusions without citation of the specific evidence on which they are based; and (10) When the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record,15 None of the above-mentioned exceptions, however, are cited by the petitioner as a ground to grant his petition. But even assuming arguendo, and in the interest of substantial justice, that any of the exceptions above were indeed invoked, as the petition alleges that the appellate court failed to give weight to petitioner's defenses of denial and alibi as well as to his stance that the testimony of Dr. Diaz exculpates him from the crime, this Court, upon a close examination of the case records, still found no error in the appellate court's finding of guilt in petitioner. On its face, there is no reason to doubt the veracity and truthfulness of the victim AAA's evidence. In particular, AAA's testimony narrating the specific incidents which gave rise to the charges was clear, categorical and straightforward and, therefore, worthy of credence. Herein below are excerpts of her testimony: Q. Specifically inviting your attention to that incident in the evening of March 14, 2007, could you please tell the court what transpired? A. In the evening of March 14, 2007, somewhere around seven or eight o'clock in the evening, I was letting my kids sleep (w)hen (Dinamling) came with a friend. They had a drinking spree and x x x he started to evict us from that boarding house because according to

him, I (was) using that boarding house as a whore house (by) bringing in partners, et cetera to that boarding house. That (was) why he was letting us out of it. And he even told me that if I (had) no travelling bag, I (could) use the basura (garbage) bag outside and I (could) use the carton where he placed the ducklings to pack our things and leave the place. That night, I (did) not know how to carry them out and I was waiting for him to stop talking and leave but he never left us up to the time he threw the feeding bottle of my baby outside that caused it to break and that was also the time I decided to go to the house of BBB because it is the place where my landlady (was) staying. xxxx Q. You mentioned of a feeding bottle. A. He threw it outside, Sir. Q. How did you feel as regards these actuations of the accused that evening? A. That is worst. He was inflicting pain (on) me but that time it was directed (at an) innocent individual and that is very painful. Q. Personally, did you feel distressed or stressed or fearful at the time the accused was acting that way? A. When he started acting that way, I fear(ed) he would again inflict those pain (on) us. Q. So when you went to the house of BBB, what happened next? A. x x x He (BBB) went to fetch the kids and came home with one of the kids but to my dismay, even the milk of my baby was not there any more; that night because it was around 11:00 o'clock, we had to use the feeding bottle of BBB's son together with the milk because when they went to fetch the kids, the milk was gone. Q. Was the incident on March 14, 2007 the first time or it happened (sic) previously? A. It happened previously. Those were the time(s) that (I was) prompted to go back home and to my relatives for protection but he (came, followed) us where we (went). Q. In those previous incidents before March 14, 2007, what did he do, if any? A. There are times he did that in public. He usually starts hitting my head, pulls my hair kicks me and there was a time I went to the police station but they said that (it) is some kind of family problem that we could talk xxx over and so it was left that way. I thought leaving him would be the best thing to do but he kept on following us. 16 xxxx Q. I am inviting your attention to that incident of March 20, 2007. Will you please tell the court what happened that late afternoon or early evening? A. I was at the house of CCC waiting for a friend because of what happened on March 14, 2007 when we left the boarding house. xxxx Q. What transpired thereat, when you were at that place? A. After sometime, around 9 o'clock, (Dinamling) came and shouted words that (on) final count, (I) should be out of that place. Q. And what else happened? A. After shouting, he boxed me at the left ear. Q. What transpired next? A. (T)hen I felt there was blood in my ear. I followed him outside and I inquired (as to) why he (kept on) following us when we (already) left the boarding house and then he started shouting at me, shouting my family name, x x x x that I (was) good for nothing and that I (could) sue him (in) court and he (would) pay me. So I said "I thought when we already left, you were at peace with yourself already." When I was going

down, going to the barangay captain's house, he followed me. When I tried to go back, he kicked me. He pulled my pants down and pulled even my panty and he said x x x he (did) that to me because I was worthless. Q. (At) what particular spot did the accused pull down your pants and your panty? A. Front of CCC. Q. What was that spot, road or backyard? A. Road. Q. Could you describe the place? Were there houses nearby, that road, that spot where he pulled down your pants and panty? A. There is a small store and people were looking at us. There are houses above and then one of them told me he saw but he is afraid to come out. Q. Was it already dark (at) that time? A. Dark but then there was a street light near the residence. Q. Was it still early evening? A. Yes, sir. Q. About what time? A. Around 9 o'clock. Q. After pulling down your pants and your panty along that road, what else happened? A. He threw my pants and panty back tome and he left shouting at me, my family name. It is very hurting because my family (had) nothing to do with this. xxxx Q. And what happened the following day? A. I stayed at my friend's house then at 5:00 o'clock early morning of March 21, there was pain at my back. That night when he kicked me, there was pain at my back. I said I (would) just go tomorrow for medication but I did not reach the day because I was bleeding. When I went to the bathroom, there (was) blood so I said I think I am going to abort. There (was) blood already so I decided to go to bath before I (went) to the hospital but when I went to take a bath, I already had profuse bleeding so they (had) to carry me with the use of a blanket to the hospital.17 AAA also stated that the baby that she claims was aborted would have been her third child with Dinamling. She also testified about always being afraid of Dinamling, even fearing the sound of his motorcycle as that signalled that she or her children would be abused. She previously filed with the police a complaint for physical injuries but nothing came of it. Later, she learned from Dinamling that he had been discharged as a policeman.18 The trial court specifically ascribed credibility on the said testimony of AAA which the Court of Appeals has affirmed. Under such circumstances, this Court has little option but to accord said findings with great respect, if not finality. The findings off act of the trial court, as regards the credibility of a witness, when affirmed by the Court of Appeals and supported by the evidence on record are accorded finality.19 In addition to AAA's testimony, her mother DDD also testified that her daughter was "like a corpse" because of Dinamling's maltreatment. DDD narrated the history of maltreatment of her daughter, including the times that she saw her with "bluish spots" and when AAA had a miscarriage from all the boxing and kicking that she had received from Dinamling.20 She knew that Dinamling was a married man when he had his relationship with AAA21 and she knew for a fact that Dinamling did not live with AAA and the children because he always went home to his own wife.22

The above testimonies suffice to establish the elements of the crime as defined in Section 5(i) of RA No. 9262 and as alleged in the two Informations filed against petitioner. The provision of the law states: Section 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: xxxx (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or access to the woman's child/children. From the aforequoted Section 5(i), in relation to other sections of RA No. 9262, the elements of the crime are derived as follows: (1) The offended party is a woman and/or her child or children; 23 (2) The woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender has a common child. As for the woman's child or children, they may be legitimate or illegitimate, or living within or without the family abode; 24 (3) The offender causes on the woman and/or child mental or emotional anguish; and (4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and emotional abuse, denial of financial support or custody of minor children or access to the children or similar such acts or omissions. 25 As for the first case, Criminal Case No. 1701, filed against petitioner Dinamling, the elements have been proven and duly established. It is undisputed that AAA, as the victim, is a woman who was then in a five-year ongoing relationship with petitioner Dinamling. At that time, AAA and Dinamling had two common children. AAA was often in fear of petitioner due to the latter's physical and verbal abuse. In the evening of March 14, 2007, an incident occurred in which she and her children were actually evicted by Dinamling from a boarding house. Dinamling, in the presence of his own friend and the children, accused AAA of using the boarding house as a "whore-house" and alleged that AAA brought sexual partners in that place. Dinamling further humiliated AAA by telling her to pack her clothes in a trash bag and in a carton box used to pack ducklings. He then threw a baby bottle outside and broke it. This forced AAA to hastily leave even without her children. Dinamling also left and took with him the elder child and left the baby behind. AAA had to ask for her friends to fetch the children but the latter found only the baby. According to AAA and her mother DDD, that incident was not an isolated one, as similar incidents had happened previously. As for the second case, Criminal Case No. 1702, the crime's elements were likewise proven. In addition to the first two elements of the victim being a woman and in a relationship with the offender, the prosecution was able to prove another incident of mental or emotional anguish through public ridicule or humiliation when it showed Dinamling acting in the following manner: a) by calling and counting down on AAA for the latter to come out of the house where she was staying; b) by punching AAA at the left ear upon seeing her; c) by shouting AAA's family name and calling her "good-for-nothing;" d) by saying that AAA could sue him but he would just pay her; e) by kicking AAA to the ground and then pulling off her pants and underwear (panty) and calling her worthless; f) by throwing the pants and panty back at AAA while shouting AAA's family name as he left. All such acts were committed while in full view and hearing of the public, highlighting the public ridicule and humiliation done on AAA and causing her mental and emotional pain. AAA's suffering is so much that even the sound of petitioner's motorcycle would put fear in her. All the above, as established during trial, lead to no other conclusion than the commission of the crime as prescribed in the law. It matters not that no other eyewitness corroborated AAA's testimony of the actual incidents. The testimony of the complainant as a lone witness to the actual perpetration of the act, as long as it is credible, suffices to establish the guilt of the accused because evidence is weighed and not counted.26 If, in criminal cases of rape27 or homicide,28 the positive, categorical and credible testimony of a lone witness is deemed enough to support a conviction, then, in the case at bar, involving a case of violation of Section 5(i) of RA No. 9262, this Court shall treat in the same manner the testimony of a single but credible witness for the prosecution. Especially if the testimony bears the earmarks of truth

and sincerity and was delivered spontaneously, naturally and in a straightforward manner, corroborative testimony is not needed to support a conviction.29 It bears emphasis that Section 5(i) penalizes some forms of psychological violence that are inflicted on victims who are women and children. Other forms of psychological violence, as well as physical, sexual and economic violence, are addressed and penalized in other sub-parts of Section 5. The law defines psychological violence as follows: Section 3(a) xxxx C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. Psychological violence is an element of violation of Section 5(i) just like the mental or emotional anguish caused on the victim. Psychological violence is the means employed by the perpetrator, while mental or emotional anguish is the effect caused to or the damage sustained by the offended party. To establish psychological violence as an element of the crime, it is necessary to show proof of commission of any of the acts enumerated in Section 5(i) or similar such acts. And to establish mental or emotional anguish, it is necessary to present the testimony of the victim as such experiences are personal to this party. 30 All of this was complied with in the case at bar. In the face of the strong and credible testimony of AAA, petitioner Dinamling relies on a defense of denial and alibi. On the nights of March 14 and 20, 2007, he claimed that he was on duty at XXX Police Station.31 He denied seeing AAA on those dates.32 However, on cross examination, he admitted that it takes only two to three minutes to go from the police station to AAA's boarding house. 33 Denial and alibi, as defenses of an accused in a criminal case, have been consistently held as inherently weak34 and which, unless supported by clear and convincing evidence, cannot prevail over the positive declarations of the victim. 35 In general, a plea of denial and alibi is not given much weight relative to the affirmative testimony of the offended party. 36 The only exception to this rule is where there is no effective identification, or where the identification of the accused has been fatally tainted by irregularity and attendant inconsistencies.37 In the case at bar, nothing in Dinamling's defense overcomes the clear, straightforward, unequivocal and positive declarations of AAA. For one, the positive identification of Dinamling as the perpetrator is not an issue. It is not disputed that he and AAA knew each other very well as, in fact, they were at that time carrying on a five-year relationship which had borne two common children. Then, as for alibi, such a defense would prosper only if the accused was able to prove that not only was heat some other place when the crime was committed, but also that he could not have been physically present at the place of the crime, or in its immediate vicinity, during its commission.38 Using such standards, Dinamling's alibi holds no water. Not only was his alleged location at the time of commission, that is, the XXX Police Station where he was on duty, in the same municipality as the crimes' place of commission, Dinamling himself also admited that this police station is just "two to three minutes" away from AAA's boarding house. Where the accused admits that he was in the same municipality as the place where the offense occurred, it cannot be said that it was physically impossible for him to have committed the crime, and his defense of alibi cannot prosper.39 Therefore, the trial and appellate courts correctly found petitioner Dinamling guilty beyond reasonable doubt and such conviction must be upheld. To reiterate, the denial of the accused is a negative assertion that is weaker than the affirmative testimony of the victim.40 It almost has no probative value and may be further discarded in the absence of any evidence of ill motives on the part of the witness to impute so grave a wrong against the accused.41As for alibi, it is not given weight if the accused failed to demonstrate that he was so far away and could not have been physically present at the scene of the crime and its immediate vicinity when the crime was committed. 42 But petitioner Dinamling also harps on the allegedly exculpatory testimony of Dr. Diaz, the substance of which allegedly frees him from responsibility for the incomplete abortion of AAA's unborn child. By way of background, a witness, who is an officer of the Ifugao Provincial Hospital, brought a copy of a medical certificate issued by a Dr. Johan Baguilat stating that: a) AAA was hospitalized at the said hospital from March 21 to March 24, 2007; b) AAA had an incomplete abortion secondary to the mauling, and;

c) AAA had anemia, contusion, hematoma and abrasion of the left elbow.43 The witness testified that she herself typed the medical certificate and had it signed by Dr. Baguilat. 44 Dr. Baguilat, however, was unable to testify, due to the alleged distance of the court from his current place of work. 45 Instead of Dr. Baguilat, it was Dr. Mae Codamon-Diaz, an obstetrician-gynecologist of the Ifugao Provincial Hospital, who testified that the medical certificate indicated that AAA was pregnant, but that her incomplete abortion might or might not have been caused by her "mauling." 46 Dr. Diaz added that the anemia was caused by profuse bleeding, while the contusion and hematoma were caused by a fall, trauma, blow or impact to the patient's body. 47 When cross-examined, Dr. Diaz stated that other possible causes of abortion include infection of the reproductive organ or urinary tract infection and intake of strong medicines, while another cause of anemia is malnutrition.48 Petitioner Dinamling's position is that such testimony of Dr. Diaz, which expresses an uncertainty as to whether the mauling of AAA caused her abortion, exculpates him from the crime. The Court disagrees. Petitioner barks up the wrong tree because the fact of AAA's physical injuries from the mauling, including her abortion, do not constitute an element of the crime with which he is charged. Such injuries are likewise not alleged in the two informations against him. Therefore, the testimony of Dr. Diaz or any physician as to the fact or existence of such physical injuries is not indispensable to petitioner's conviction or acquittal. Simply put, AAA's physical condition is not an element of the crime that petitioner was charged with, hence, proof of the same is, strictly speaking, unnecessary. In fact, neither the physical injuries suffered by the victim nor the actual physical violence done by the perpetrator are necessary to prove the essential elements of the crime as defined in Section 5(i) of RA 9262. The only exception is, as in the case at bar, when the physical violence done by the accused is alleged to have caused the mental and emotional suffering; in which case, such acts of physical violence must be proven. In this instance, the physical violence was a means of causing mental or emotional suffering. As such, whether or not it led to actual bodily injury, the physical violence translates to psychological violence since its main effect was on the victim's mental or emotional wellbeing. In the case at bar, petitioner Dinamling's acts of publicly punching, kicking and stripping AAA of her pants and underwear, although obvious acts of physical violence, are also instances of psychological violence since it was alleged and proven that they resulted in AAA's public ridicule and humiliation and mental or emotional distress. The clear, unrebutted testimony of the victim AAA, as to the physical violence done on her as well as to the mental and emotional suffering she experienced as a result thereof, suffices to prove such facts. The victim's resulting actual bodily injuries are immaterial unless such injuries are also alleged to have led to her mental or emotional anguish. There was no such allegation in the information in the case at bar. Thus, proof of physical injuries is not needed for conviction. Likewise, proof of the absence thereof or lack of proof of such injuries would not lead to an acquittal. Physical violence or physical injuries, in isolation, are not elements of this particular crime. As earlier discussed, the focus of this particular criminal act is the causation of non-physical suffering, that is, mental or emotional distress, or even anxiety and social shame or dishonor on the offended party, and not of direct bodily harm or property damage which are covered by the other subsections of the law's provision. The use of physical violence, whether or not it causes physical or property harm to the victim, falls under Section 5(i) only if it is alleged and proven to have caused mental or emotional anguish. Likewise, the physical injuries suffered are similarly covered only if they lead to such psychological harm. Otherwise, physical violence or injuries, with no allegation of mental or emotional harm, are punishable under the other provisions of the law. As to the alleged miscarriage or incomplete abortion, the allegedly exculpatory testimony of Dr. Diaz, or even the complete disregard of any evidence surrounding such fact does not lead to petitioner Dinamling's acquittal. Like the physical injuries that was discussed above, the fact of AAA's miscarriage or incomplete abortion is not essential to proving the elements of the crime, unless it is alleged to have caused mental or emotional suffering. It is not among the crime's elements. In fact, it is not abortion but the mere fact of pregnancy of the victim at the time of commission which is an aggravating circumstance, not an element, of the offense. Section 6 of RA 9262 reads: SECTION 6. Penalties.- The crime of violence against women and their children, under Section 5 hereof shall be punished according to the following rules: xxxx (f) Acts falling under Section 5(h) and Section 5(i) shall be punished by prision mayor. If the acts are committed while the woman or child is pregnant or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in the section. In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (₱100,000.00) but not more than three hundred thousand pesos (₱300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court.49

For this crime, pregnancy or the presence of the woman's child are aggravating circumstances which increase the imposable penalty, thus, they must be alleged and proven with competent evidence for the penalty to be properly imposed. 50 It is true that the fact of AAA's incomplete abortion or miscarriage does not establish any of the crime's elements, as indeed the information itself did not allege the same. However, from the fact of miscarriage one may logically derive the fact of AAA's pregnancy, which is an aggravating circumstance for the crime and which is alleged as such in the information. The pregnancy is proven by AAA's unrebutted testimony as well as by the medical certificate that she presented in the course of such testimony to show that she was indeed hospitalized and suffered an "incomplete abortion secondary to the mauling." Although petitioner Dinamling, up to this stage of the case, denies having caused the incomplete abortion or miscarriage, he does not deny the fact of pregnancy itself. He did not present contradictory evidence during trial to controvert the prosecution's assertions and proof of pregnancy. The pregnancy was never put in issue during trial and on appeal. Neither is the same in question in this petition. Therefore, it may be safely concluded that the fact of AAA's pregnancy has been established and it may be taken account of and considered as a circumstance that aggravates Dinamling's criminal liability. Therefore, given such finding, this Court will now accordingly modify the penalties imposed by the trial court and appellate court.51 As for Criminal Case No. 1701, no mitigating and only one (1) aggravating circumstance attends the crime.1âwphi1Although it was stated during trial that the offense was committed in the presence of AAA's children, such fact was not alleged in the information and therefore will not be taken into consideration.52 Nighttime, though alleged, is not considered aggravating because it neither facilitated the commission of the offense nor was it shown to have been purposely sought by the offender. 53 The fact of AAA's pregnancy during the crime's commission, however, has been alleged and established. This single circumstance aggravates the accused's liability and automatically raises his penalty to the maximum period of the penalty prescribed, per Section 6 of RA 9262 and also Article 64(3) of the Revised Penal Code. Hence, petitioner Dinamling should be sentenced to a maximum penalty that is derived from prision mayor in its maximum period, which is imprisonment of ten (10) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law, 54 the minimum penalty should come from the penalty one degree lower than prision mayor which is prision correccional, whose range is from six (6) months and one (1) day to six (6) years.55 Therefore, this Court modifies the trial court's Order dated September 17, 2009, 56 which was affirmed by the Court of Appeals, and imposes on petitioner Dinamling an indeterminate sentence of imprisonment of two (2) years, four (4) months and one (1) day of prision correccional as minimum to eleven (11) years of prision mayor as maximum. The trial court's order for petitioner to pay a fine of one hundred thousand pesos (₱100,000.00) and to undergo psychological counseling, as affirmed by the Court of Appeals, is upheld. As for Criminal Case No. 1702, there is likewise no mitigating and only one (1) aggravating circumstance. Again, the single circumstance of pregnancy aggravates the accused's liability and automatically raises his penalty to the maximum period of the penalty prescribed, per Section 6 of RA No. 9262 and Article 64(3) of the Revised Penal Code. Therefore, the penalty imposed by the Court of Appeals are to be modified. The maximum penalty should be derived from prision mayor in its maximum period, which, again, is imprisonment of ten (10) years and one (1) day to twelve (12) years. And again, applying the Indeterminate Sentence Law, the minimum should be derived from the penalty next lower in degree, which is prision correccional. Therefore, the new penalty to be imposed shall be imprisonment of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. The rest of the penalties, like the imposition on the petitioner of a fine of one hundred thousand pesos (₱100,000.00) and the order for him to undergo psychological counseling, as upheld by the appellate court, are hereby affirmed. Both Criminal Case Nos. 1701 and 1702 involve the same offense as defined in RA 9262 and are punishable by the same range of penalties as prescribed in the said law. However, due to the greater ignominy of the acts done by the accused in Criminal Case No. 1702, the minimum and maximum lengths of the sentence imposed should therefore be greater than in Criminal Case No. 1701. WHEREFORE, premises considered, the petition is DENIED for failure of petitioner to show any reversible error in the assailed CA decision. The assailed Decision dated August 11, 2011 and Resolution dated November 25, 2011 of the Court of Appeals, in CA-G.R. CR No. 32912, are hereby AFFIRMED and MODIFIED only as to the penalties imposed, to wit: 1) in Criminal Case No. 1701, petitioner Ricky Dinamling is ORDERED to serve an indeterminate sentence of imprisonment of two (2) years, four (4) months and one (1) day of prision correccional as minimum to eleven (11) years of prision mayor as maximum. He is, likewise, ORDERED to PAY a fine of one hundred thousand pesos (₱100,000.00) and to undergo psychological counseling; 2) in Criminal Case No. 1702, petitioner Ricky Dinamling is hereby ORDERED to serve an indeterminate sentence of imprisonment of six ( 6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. He is also ORDERED to PAY a fine of one hundred thousand pesos (₱100,000.00) and to undergo psychological counseling. SO ORDERED. DIOSDADO M. PERALTA SECOND DIVISION

G.R. No. L-68955 September 4, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.: This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads: WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for by law. As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered disposed of in accordance with law. The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of subversion in an information which reads as follows: That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess and without the necessary license, permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of the Republic of the Philippines through lawless and violent means, of which the accused had knowledge, and which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of New Members to the NPA and collection of contributions from the members. CONTRARY TO LAW. The evidence for the prosecution is summarized in the decision of the lower court as follows: xxx xxx xxx . . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused. Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982). Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982). Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution. After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the prosecution. Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA Ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982). To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983). Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983). On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper. The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government, emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the authorities, they will be killed. Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983) Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be responsible for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January 4, 1983) On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of the Philippine Constabulary, Digos, Davao del Sur. Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting of five (5) pages. Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of accused, indicating his having understood, the allegations of his extra-judicial statement. Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent, right to counsel and right to answer any question propounded or not. With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982) Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the licensing of the firearm under Presidential Decree No. 1745. After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled. On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows: From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing a civilian attire. (TSN, page 14 1, HearingJune 15, 1983) The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his refusal accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured and the ordeals he was subjected. He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong (sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with pungent pain. All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell unconscious and again repeated after recovery of his senses, Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of subject firearm. After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the administering officer, (TSN, pages 141-148, Hearing-June 15, 1983) In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial statement, attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who, unfortunately he cannot Identify and was able to obtain his admission of the subject firearm, by force and violence exerted over his person. To support denial of accused of being involved in any subversive activities, and also to support his denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983) To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983) He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his barrio involving subversive activities but they were released and were not formally charged in Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136, Hearing-May 18, 1983) Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her husband, the accused, was not in their house at that time and that she did not inform him about said firearm neither did she report the matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983) On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983) After the above-testimony, accused through counsel formally rested his case in support of accused's through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May 18, 1983) Accused-appellant Ruben Burgos now raises the following assignments of error, to wit: I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL. II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL. III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7 Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt? The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982). Article IV, Section 3 of the Constitution provides: 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 not be violated, 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. The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no legs than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47). The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as follows: 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. The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter." If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states: A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The conclusions reached by the trial court are erroneous. Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife. At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest. The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection. The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has been committed and that the accused is probably guilty thereof. In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also tainted. More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown, The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired afterwards could not likewise be deemed legal as being mere incidents to a valid arrest. Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra) xxx xxx xxx . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181). We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458). That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records: A CALAMBA: Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant? A None Sir. Q Neither were you armed with a search warrant? A No Sir. Q As a matter of fact, Burgos was not present in his house when you went there? A But he was twenty meters away from his house. Q Ruben Burgos was then plowing his field? A Yes Sir. Q When you called for Ruben Burgos you interviewed him? A Yes Sir. Q And that you told him that Masamlok implicated him? A No Sir.

Q What did you tell him? A That we received information that you have a firearm, you surrender that firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped with a cellophane. Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he was purposely under arrest? A I did not. Q As a matter of fact, he denied that he has ever a gun? A Yes Sir. Q As a matter of fact, the gun was not in his possession? A It was buried down in his horse. Q As a matter of fact, Burgos did not point to where it was buried? A Yes Sir. (TSN, pp. 25-26, Hearing-October 14, 1982) Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as evidence. There is another aspect of this case. In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden. Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.. . . The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him. The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree measures may not have been supported by reliable evidence but the failure to present the investigator who conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical violence may have been committed as stated. The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was being taken. With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424): xxx xxx xxx . . .Time and again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the record discloses circumstances of weight and substance which were not properly appreciated by the trial court. The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA 98 1): . . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . . xxx xxx xxx . . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . . In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his freedom. Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or actually engaged in subversive acts, the prosecution never presented any other witness. This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt. As held in the case of People vs. Baia (34 SCRA 347): It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697). We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated: While the government should continue to repel the communists, the subversives, the rebels, and the lawless with an the means at its command, it should always be remembered that whatever action is taken must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties and protections will only fan the increase of subversive activities instead of containing and suppressing them. WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged. The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law. Cost de oficio. SO ORDERED. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur. EN BANC G.R. No. L-2128

May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners, vs. THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF MANILA,respondents. Enrique Q. Jabile for petitioners. Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa and D. Guinto Lazaro for respondents. FERIA, J.: Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948, when the petition for habeas corpus filed with this Court was heard, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them an information with the proper courts justice. This case has not been decided before this time because there was not a sufficient number of Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting in division here in Baguio for deliberation and decision. We have not until now an official information as to the action taken by the office of the city fiscal on the complaint filed by the Dumlao against the petitioners. But whatever night have been the action taken by said office, if there was any, we have to decide this case in order to lay down a ruling on the question involved herein for the information and guidance in the future of the officers concerned. The principal question to be determined in the present case in order to decide whether or not the petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of manila a judicial authority within the meaning of the provisions of article 125 of the Revised Penal Code? Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours." Taking into consideration the history of the provisions of the above quoted article, the precept of our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article, mean the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, "the Supreme Court and such inferior courts as may be established by law". (Section 1, Article VIII of the Constitution.) Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code formerly in force of these Islands, which penalized a public officer other than a judicial officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to the judicial authority within twenty four hours after his arrest." There was no doubt that a judicial authority therein referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the temporary commitment or detention of the person arrested; and not the city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which complements said section 202, of the same Code provided that "the penalty of suspension in its minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer who, within the period prescribed by the provisions of the law of criminal

procedure in force, shall fail to release any prisoner under arrest or to commit such prisoner formally by written order containing a statement of the grounds upon which the same is based." Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the Revised Penal Code the import of said words judicial authority or officer can not be construed as having been modified by the mere omission of said provision in the Revised Penal Code. Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or confinement] shall issue but upon probable cause, to be determined by the judge after the examination under oath or affirmation of the complaint and the witness he may produce." Under this constitutional precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the complainant and his witness. And the judicial authority to whom the person arrested by a public officers must be surrendered can not be any other but court or judge who alone is authorized to issue a warrant of commitment or provisional detention of the person arrested pending the trial of the case against the latter. Without such warrant of commitment, the detention of the person arrested for than six hours would be illegal and in violation of our Constitution. Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the duty of an officer after arrest without warrant, provides that "a person making arrest for legal ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal Code, take the person arrested to the proper court or judge for such action for they may deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the Court, he shall be informed of the complaint or information filed against him. He shall also informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him. And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court. According to the provision of said section, "a writ of habeas corpus shall extend any person to all cases of illegal confinement or detention by which any person is illegally deprived of his liberty"; and "if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a judgement or order of a court of record, and that the court or judge had jurisdiction to issue the process, render judgment, or make the order, the writ shall not be allowed. "Which a contrario sensu means that, otherwise, the writ shall be allowed and the person detained shall be released. The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of arrest or of commitment or temporary confinement of a person surrendered to legalize the detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city of fiscal of Manila makes is not the preliminary investigation proper provided for in section 11, Rule 108, above quoted, to which all person charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since defendant charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary investigation. The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2, Rule 108, is the investigation referred to in the proceeding paragraph. Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with municipal court or the Court of First Instance of Manila, because as above stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused. When a person is arrested without warrant in cases permitted bylaw, the officer or person making the arrest should, as abovestated, without unnecessary delay take or surrender the person arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of section 13, Rule 108.

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

Separate Opinions 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. (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. (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 AngloAmerican 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. 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. 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.) 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 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: 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. 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.

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. 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.) 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 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.) 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. 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: 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 Court1 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: 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 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.) 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. 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. 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 Code 2 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. EN BANC

[G.R. No. 123595. December 12, 1997] SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. DECISION DAVIDE, JR., J.: In an Information[1] filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866, [2] as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1, and A-2,[4] while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner.[5]

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with [t]heir eyes moving very fast. [6] Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioners front waist line. [7] Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered.Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander. [8] On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade.The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.[9] Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapios advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit for examination.[11] On cross-examination, Serapio admitted that he took petitioners confession knowing it was inadmissible in evidence.[12] Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he [f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present, and concluded that the grenade was [l]ive and capable of exploding. On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. [13] Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This officer then inserted the muzzle of his gun into petitioners mouth and said, [y]ou are the one who shot me. Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented.[14] The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information.[15] Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been premature. [16] The RTC emphasized that Yu and his companions were [c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence[17] and the officers [h]ad to act in haste, as petitioner and his companions were acting suspiciously, considering the time, place and reported cases of bombing. Further, petitioners group suddenly ran away in different directions as they saw the arresting officers approach, thus [i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.[18] The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish petitioners guilt beyond reasonable doubt. In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and senten ced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. [21] In his Appellants Brief [22] filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS ARREST. 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto.[24] In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was planted by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioners possession was not raised as an issue.Further, respondent court focused on the admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was attempting to commit an offense, thus: We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote, [26] which petitioner relied upon, was inapplicable in light of [c]rucial differences, to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him. Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them. Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.

For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), [27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section 5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30]The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioners guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an X mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes moving very fast. Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. [31] The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped *** A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop and frisk." [35] In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure of the grenade from the accused [as] an appropriate incident to his arrest, hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. [36] In this instance, the law requires that there first be a lawful arrest before a search can be made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.[38] Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment ***[39] Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," [40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. [41] Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, here are at least three (3) reasons why the stop-and-frisk was invalid: First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination: Q And what were they doing? A They were merely standing.

Q You are sure of that? A Yes, sir. Q And when you saw them standing, there were nothing or they did not create any commotion? A None, sir. Q Neither did you see them create commotion? A None, sir.[42] Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.[43] What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de oficio. SO ORDERED. THIRD DIVISION

G.R. No. 117321 February 11, 1998 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON TAN y VERZO, accused-appellant.

ROMERO, J.: May the confession of an accused, given before a police investigator upon invitation and without the benefit of counsel, be admissible in evidence against him? Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of highway robbery with murder before the Regional Trial Court, Branch 62, of Gumaca, Quezon Province, under an information1 dated February 8, 1989, which reads as follows: That on or about the 5th day of December 1988, along the Maharlika Highway at Barangay Tinandog, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping each other, armed with bladed and pointed weapons, with intent to gain, by means of force, violence, threats and intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away from one Freddie Saavedra, a Honda TMX motorcycle with a sidecar bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS (P30,000.00) Philippine currency, belonging to the said Freddie Saavedra, to the damage and prejudice of the latter in the aforesaid amount; and that on the occasion of said robbery and by reason thereof, the said accused, with intent to kill, with evident premeditation and treachery, and taking advantage of their superior strength and in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously attack, assault and stab with the said weapon said Freddie Saavedra, thereby inflicting upon the latter multiple stab wounds on the different parts of his body, which directly caused his death. Contrary to law. On arraignment, the accused pleaded not guilty to the charge.

The relevant facts established by the prosecution are as follows: On December 5, 1988, at about 7:00 o'clock p.m., tricycle driver Freddie Saavedra went to see his wife, Delfa, at Our Lady of Angeles Academy in Atimonan, Quezon, where the latter is a third year high school student, to inform her that he will drive both accused to Barangay Maligaya. It was the last time, however, that Freddie was seen alive. When the latter failed to return that evening, Delfa, as early as 4:30 o'clock a.m. of December 6, 1988 inquired on his whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel Villarama revealed that the lifeless body of her husband was discovered on the diversion road at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place and found him sprawled on the ground with fourteen stab wounds in different parts of his body. Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt. Carlos Santos proceeded to the scene of the crime and recovered a blue sidecar which they brought back with them to their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat. Rolando Alandy invited appellant in connection with the instant case and with respect to two other robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an explicit account of what actually transpired in the case at bar. He narrated that he and co-accused Amido were responsible for the loss of the motorcycle and the consequent death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a guide, the Lucena PNP immediately dispatched a team to retrieve the same. After admitting that it was purchased from both the accused and upon failure to present any document evidencing the purported sale, Teves voluntarily surrendered it to the police who turned it over, together with the sidecar, to the Atimonan Police Station for safekeeping. Lt. Carlos, on cross-examination, testified that when he invited appellant to their headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter that he was a suspect, not only in the instant case, but also in two other robbery cases allegedly committed in Lucena City. In the belief that they were merely conversing inside the police station, he admitted that he did not inform appellant of his constitutional rights to remain silent and to the assistance of counsel; nor did he reduce the supposed confession to writing.2 Appellant, on the other hand, alleged that he had no participation in the offense charged and contended that his only involvement in the matter was the referral of accused Amido to Teves. He recounted that sometime in December 1988, Amido sought him at his house and told him that the motorcycle he was riding on was being offered for sale. Upon proof shown that it was indeed registered under Amido's name, he accompanied the latter to Manila on board the said motorcycle and they approached Antonio Carandang. The latter, thereafter, brought them to a certain Perlita Aguilar and Danilo Teves with whom the sale was finally consummated. He allegedly received P150.00 as his commission. Amido presented alibi as his defense. He alleged that although a tricycle driver by occupation, he was at Barangay Malusak, Atimonan on the day in question, some seven kilometers from the town, busy assisting in the renovation of his mother's house. He narrated that the victim was his friend and, therefore, he could not have participated in the gruesome death of the latter. In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion of which reads: WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan GUILTY beyond reasonable doubt of the crime of Highway Robbery with Murder and hereby sentences him to suffer an imprisonment of RECLUSION PERPETUA. He is further ordered to indemnify the family of the deceased in the amount of Thirty Thousand Pesos (P30,000.00). Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges against him and the Provincial Warden of Quezon, Provincial Jail, Lucena City, is hereby ordered to release from custody the person of said Lito Amido, unless he is being detained thereat for some other lawful cause. SO ORDERED.3 Appellant assails the finding of conviction despite failure of the prosecution to positively identify him as the culprit of the crime and to present clear and convincing circumstantial evidence that would overcome his innocence. In light of the above facts and circumstances, the appealed decision is set aside and appellant acquitted on the ground that his constitutional rights were violated. It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. Article III, Section 12, paragraphs (1) and (3) of the Constitution provides:

xxx

xxx

xxx

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

xxx

xxx

(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him. Republic Act No. 7438 (R.A. No. 7438),4 approved on May 15, 1992, reenforced the constitutional mandate protecting the rights of persons under custodial investigation, a pertinent provision5 of which reads: As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that tends itself to eliciting incriminating statements that the rule begins to operate.6 Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to explain those rights to the accused but also that there must correspondingly be a meaningful communication to and understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused would thus not suffice. 7 Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.8 While the Constitution sanctions the waiver of the right to counsel, it must, however, be "voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel." 9 To reiterate, in People v. Javar,10 it was ruled therein that any statement obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. The records of this case do not indicate that appellant was assisted by counsel when he made such waiver, a finding evident from the testimony of Lt. Santos on cross-examination, thus: Q Now, when you brought Herson Tan to the Headquarters, did you tell him that he is one of the suspects in the robbery slain (sic) that took place in Atimonan on December 5, 1988? A Yes, sir, and he was also suspect to the robbery case which was investigated at Lucena Police Station. There were two (2) cases which were investigated on Herson Tan. Q Now, so in addition to the Atimonan case, you also took Herson Tan to your custody in connection with another case that happened in Lucena? A Yes, sir. Q And you happened to have Herson Tan in your list as suspect in both cases because Herson was previously incarcerated at Lucena City Jail in connection with a certain case, is it not? A Yes, sir. Q Just for curiosity sake, you invited him in your headquarters, is that what happened in this case? A Yes, sir.

Q And it just happened that without applying third degree to him he gave you that information? A Yes, sir. Q Did you notify him of his constitutional right to counsel before you propounded questions to him? A No, sir, because we are asking question only to him. Q Before propounding question or information you sought to elicit from him, did you inform him of his constitutional right not to testify against himself because he is a suspect in these two (2) cases? A No, sir, because we were just conversing.11 (Emphasis supplied) The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to convict him, however, of said crime. The constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the moment he is investigated in connection with an offense he is suspected to have committed, even if the same be initiated by mere invitation. "This Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of government."12 What remains of the evidence for the prosecution is inadequate to warrant a conviction. Considering the circumstances attendant in the conduct of appellant's investigation which fell short of compliance with constitutional safeguards, we are constrained to acquit the appellant. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca, Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is hereby ACQUITTED of the crime charged and his immediate release from confinement is hereby ordered, unless there is any other lawful cause for continued detention. Costs de oficio. SO ORDERED. Narvasa, C.J., Kapunan, Francisco and Purisima, JJ., concur. EN BANC G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799

May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ----------------------------------------

G.R. No. 147810

May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. RESOLUTION MELO, J.: On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court – (1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam DefensorSantiago; (3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino. All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments: [I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24) With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of Court).1âwphi1.nêt Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar.

G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant. As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose. Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day. G.R. No. 147781 The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant. G.R. No. 147799 Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-inChief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion…" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000): x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x (at pp.22-23) The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted. G.R. No. 147810 Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacañang. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur. Vitug, separate opinion. Kapunan, dissenting opinion. Pardo, join the dissent of J. Kapunan. Sandoval-Gutierrez, dissenting opinion. Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. SEPARATE OPINION VITUG, J.: I concur insofar as the resolution enjoins any continued warrantless arrests for acts related to, or connected with, the May 1st incident but respectfully dissent from the order of dismissal of the petitions for being said to be moot and academic. The petitions have raised important constitutional issues that, in my view, must likewise be fully addressed.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799

May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810

May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION KAPUNAN, J.: The right against unreasonable searches and seizure has been characterized as belonging "in the catalog of indispensable freedoms." Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.1 Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court against their impending warrantless arrests upon order of the Secretary of Justice.2 Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo Lacson.3 Separate petitioners were also filed by Senator Juan Ponce Enrile. 4 Former Ambassador Ernesto M. Maceda,5 Senator Miriam DefensorSantiago,6Senator Gregorio B. Honasan,7 and the Integrated Bar of the Philippines (IBP).8 Briefly, the order for the arrests of these political opposition leaders and police officers stems from the following facts: On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and the police. The police had to employ batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full media coverage, their fingerprints were obtained and their mug shots taken.

Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies. In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans memorial Medical Center for a medical check-up. It was announced that from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna. In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacañang Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to guard the premises of the presidential residence. The marchers were able to penetrate the barricades put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacañan. As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt. At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila: Presidential Proclamation No. 38 DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacañang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms against the duly constituted Government for the purpose of removing from the allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion; In view of the foregoing, I am issuing General Order NO. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National police to suppress and quell the rebellion. City of Manila, May 1, 2001. The President likewise issued General Order No. 1 which reads: GENERAL ORDER NO. 1 DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacañang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize political power, and have and continue to rise publicly, show open hostility, and take up arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power;

WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion. I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. City of Manila, May 1, 2001. Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far failed to apprehend them. Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was ordered released by the Court on cash bond. The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without warrant, pursuant to a declaration of "state of rebellion" by the President of the above-mentioned persons and unnamed other persons similarly situated suspected of having committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the Bill of Rights under the Constitution. The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution which reads: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion.9 In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or invasion). The term "state of rebellion" has no legal significance. It is vague and amorphous and does not give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due process,10 the rights to free speech and peaceful assembly to petition the government for redress of grievances, 11and the right against unreasonable searches and seizures,12 among others.

In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that: x x x [T]he distinction (between the calling out power, on one hand, and the power to suspend the privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. xxx The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the "calling out" power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court. On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest persons without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the citizens' civil liberties, the so-called "state of rebellion" partakes the nature of martial law without declaring on its face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of the Constitution. 14 In an ironic sense, a "state of rebellion" declared as a subterfuge to effect warrantless arrest and detention for an unbailable offense places a heavier burden on the people's civil liberties than the suspension of the privilege of the writ of habeas corpus the declaration of martial law because in the latter case, built-in safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from the proclamation or suspension; (3) The proclamation or suspension is subject to review by Congress, which may revoke such proclamation or suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its extension is subject to review by the Supreme Court in an appropriate proceeding.15 No right is more fundamental than the right to life and liberty. Without these rights, all other individual rights may not exist. Thus, the very first section in our Constitution's Bill of Rights, Article III, reads: SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. And to assure the fullest protection of the right, more especially against government impairment, Section 2 thereof provides: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion or rebellion." Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of any person. The only significant consequence of the suspension of the writ of habeas corpus is to divest the courts of the power to issue the writ whereby the detention of the person is put in issue. It does not by itself authorize the President to order the arrest of a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications: The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial law. A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures.

As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides: SEC. 5. Arrest without warrant; when lawful. – A police officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the strength of a warrant of arrest issued by a "judge" after determining "personally" the existence of "probable cause" after examination under oath or affirmation of the complainant and the witnesses he may produce. Its requirements should, therefore, be scrupulously met: The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.16 A warrantless arrest may be justified only if the police officer had facts and circumstances before him which, had they been before a judge, would constitute adequate basis for a finding of probable cause of the commission of an offense and that the person arrested is probably guilty of committing the offense. That is why the Rules of Criminal Procedure require that when arrested, the person "arrested has committed, is actually committing, or is attempting to commit an offense" in the presence of the arresting officer. Or if it be a case of an offense which had "just been committed," that the police officer making the arrest "has personal knowledge of facts or circumstances that the person to be arrested has committed it." Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos,17 where this Court held: The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assault against the State and are in the nature of continuing crimes.18 Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so long as the rebellion persists. Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion19 which justified their arrests without warrants. In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion.20 In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. In United States vs. Samonte,21 the term" in his [the arresting officer's] presence" was defined thus: An offense is said to be committed in the presence or within the view of an arresting officer or private citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made. 22 This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay.23 Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant

cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not without any strong dissents. It merely reaffirmed Garcia-Padilla vs. Enrile,24 a case decided during the Marcos martial law regime. 25 It cannot apply when the country is supposed to be under the regime of freedom and democracy. The separate opinions of the following Justices in the motion for reconsideration of said case26 are apropos: FERNAN C.J., concurring and dissenting: Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adept at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.27(Underscoring supplied) GUTIERREZ, JR., J., concurring and dissenting opinion Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in their observations regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government. The belief of law enforcement authorities, no matter how well-grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and ounce on him with no legal authority instead of securing warrants of arrest for his apprehension.28(Underscoring supplied) CRUZ, J., concurring and dissenting: I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seem some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.29 (Underscoring supplied) FELICIANO, J., concurring and dissenting: 12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such or association or organization in any form whatsoever; c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; xxx f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; xxx g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; xxx k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization. It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving. 30 (Underscoring supplied) It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints in order that the regular procedure can be followed and the warrants of arrest issued by the courts in the normal course. When practicable, resort to the warrant process is always to be preferred because "it interposes an orderly procedure involving 'judicial impartiality' whereby a neutral and detached magistrate can make informed and deliberate determinations on the issue of probable cause." 31 The neutrality, detachment and independence that judges are supposed to possess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers, would make such branch the accused's adversary and accuser, his judge and jury. 32 A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause. The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which must still judge for itself the existence of probable cause. Under Section 18, Article VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpusrests for which the President is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a purely legal question of which courts are the final arbiters. Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of rebellion" on May 7, 2001 does not stop the police from making warrantless arrests.33 If this is so, the pernicious effects of the declaration on the people's civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for alleged complicity in the "continuing" crime of "rebellion" defined as such by executive fiat. The list of the perceived leaders, financiers and supporters of the "rebellion" to be arrested and incarcerated could expand depending on the appreciation of the police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended and limitless as to place in constant and continuing peril the people's Bill of Rights. It is of no small significance that four of he petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders of arrest against them are illegal, then their Constitutional right to seek public office, as well as the right of he people to choose their officials, is violated. In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Paño:34 The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to? WHEREFORE, I vote as follows:

(1) Give DUE COURSE to and GRANT the petitions; (2) Declare as NULL and VOID the orders of arrest issued against petitioners; (3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and in their behalf from effecting warrantless arrests against petitioners and all other persons similarly situated on the basis of Proclamation No. 38 and General Order No. 1 of the President. SO ORDERED. FIRST DIVISION G.R. No. 116488

May 31, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AARON FLORES @ "RONITO", SULPECIO SILPAO y ORTEGA @ "SULPING" and EDGAR VILLERAN y MAGBANUA, accused-appellants. YNARES-SANTIAGO, J.: Sgt. Wennie Tampioc, Detachment Commander of the 7th Infantry Brigade detailed at Barangay Tabu, Ilog, Negros Occidental, and three (3) members of the local Citizen Armed Force Geographical Unit (CAFGU) under his supervision, namely, Aaron Flores alias "Ronito", Sulpecio Silpao y Ortega alias "Sulping" and Edgar Villeran y Magbanua, were charged before the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61, with Kidnapping and Serious Illegal Detention. The information charged as follows: That on or about the 29th day of September, 1992, in the Municipality of Ilog, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with high powered firearms conspiring, confederating and helping one another, by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously take, kidnap, detain and keep under guard one SAMSON SAYAM y GEPANAO from Km 117, Hda. Shangrella (sic), Brgy. Tabu, of the above-named municipality, and bring the latter to their detachment at Brgy. Tabu, under restraint and against his will, without proper authority thereof, thereby depriving said victim of his civil liberty since then up to the present. CONTRARY TO LAW.1 All the four accused pleaded "Not Guilty" when arraigned. Trial ensued and, based on the testimonial evidence presented, the trial court found the following antecedent facts to be undisputed. On the night of September 29, 1992, the victim, Samson Sayam, was drinking beer at the store owned by Terry Cabrillos located at Barangay Tabu, Ilog, Negros Occidental. Sgt. Wennie Tampioc, Aaron Flores, Sulpecio Silpao and Edgar Villeran were at the same store drinking beer. Sayam joined the four accused at their table. Sometime later, all the accused and the victim left the store and walked towards the direction of the military detachment headquarters. After the accused left the store with Samson Sayam, witnesses heard a single gunshot followed by rapid firing coming from the direction of the detachment headquarters. 2 That was the last time Samson Sayam was seen, and despite diligent efforts of Sayam's mother and relatives, he has not been found. It was the prosecution's contention that on that fateful evening, all four accused hatched a conspiracy to kidnap the victim and thereafter detain him at the detachment headquarters. They allegedly succeeded in their plot and, the prosecution avers, to this day the accused have not released Samson Sayam. All the accused, however, vehemently denied committing the acts charged. The trial court held that the testimonial evidence failed to prove beyond reasonable doubt the existence of a conspiracy among the four accused. More specifically, the prosecution failed to show an apparent common design by and among the accused to kidnap and detain Samson Sayam against his will. Thus, the trial court proceeded to determine the individual liabilities of the four accused based on the degree of their participation in the commission of the offense charged. The trial court gave credence to the prosecution's evidence that Samson Sayam was seen being forcibly dragged out of the store and pulled towards the direction of the detachment headquarters by accused Aaron Flores, Sulpecio Silpao and Edgar Villeran. Since Samson Sayam had not been seen nor heard from since then, the trial court held that the three accused were responsible for the former's disappearance. As regards Wennie Tampioc, the trial court found that he left the store ahead of the three (3) co-accused and, thus, had nothing to do with the disappearance of Samson Sayam. Notably, none of the prosecution witnesses specifically or categorically mentioned Tampioc as among those who actively participated in bringing Samson Sayam by force to their headquarters. Unlike his co-accused who are natives of the place

of the incident, Wennie Tampioc was newly assigned as Detachment Commander and did not know Samson Sayam, such that no ill-motive was attributed to him by the trial court. Likewise, the testimonies of prosecution witnesses Nelson Golez, on the one hand, and that of Carlos Manlangit, on the other hand, conflict as to the kind of firearm allegedly carried by Tampioc. While Golez stated that he was armed with an Armalite rifle,3 Manlangit testified that Tampioc was armed with a short firearm. 4 More importantly, the trial court found that the identity of Sgt. Tampioc as one of the perpetrators of the crime was doubtful, because notwithstanding the fact that Nelson Golez knew Wennie Tampioc even before September 29, 1992, 5 the original complaint filed before the Municipal Circuit Trial court of Ilog Candoni, dated October 21, 1992, which was based on the affidavits of Golez and Carlito Manlingit, did not mention Wennie Tampioc as one of the respondents. The said affidavits merely mentioned an "unidentified member of the 7th IB, Philippine Army, assigned at Brgy. Tabu, detachment." At the time of the execution of the affidavits, the witnesses could have known that Wennie Tampioc was a sergeant, and that he was a commander of the detachment. Finally, the straightforward and emphatic manner in which Wennie Tampioc testified inspired belief in the trial court's mind. 6 On December 8, 1993, the trial court rendered the assailed judgment, the dispositive of which states: WHEREFORE, premises considered, this Court finds the accused Aaron Flores, Edgar Villeran and Sulpecio Silpao GUILTY beyond reasonable doubt of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code and are each sentenced to suffer the penalty of Reclusion Perpetua; and there being no proof that Samson Sayam is dead, they are ordered to pay him jointly and severally, or in the alternative, his heirs the sum of Fifty Thousand (P50,000.00) Pesos as damages, without subsidiary imprisonment in case of insolvency and to pay the costs of this suit. The accused Wennie Tampioc is ACQUITTED on grounds of reasonable doubt. The bail bonds of the said accused are ordered cancelled and the convicted accused ordered confined pending appeal if they so file an appeal, in accordance with Administrative Circular No. 2-92, dated January 20, 1992 of the Supreme Court. SO ORDERED.7 Two (2) separate appeals were brought before us. Accused-appellant Sulpecio Silpao raised the following errors: I. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SULPECIO SILPAO OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION, UNDER ARTICLE 267, REVISED PENAL CODE. II. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED-APPELLANT CAFGU SULPECIO SILPAO, AS AMONG THOSE WHO FORCIBLY BROUGHT SAMSON SAYAM TO THEIR HEADQUARTERS IN THE EVENING OF 29 SEPTEMBER 1992 AND RESPONSIBLE FOR SAMSON SAYAM'S DISAPPEARANCE. III. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT CAFGU SULPECIO SILPAO GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED. On the other hand, accused-appellants Aaron Flores and Edgar Villeran interposed a joint appeal based on the sole error that: THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANTS AARON FLORES AND EDGAR VILLERAN GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION BASED ON CIRCUMSTANTIAL AND INSUFFICIENT EVIDENCE. After a thorough review of the facts and evidence adduced before the trial court, we find that accused-appellants should be acquitted of the offense charged against them. The crime of Kidnapping and Serious Illegal Detention is defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659. The elements of the offense are: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances are present:

(a) That the kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating public authority; (c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person kidnapped is a minor, female or public officer. 8 Clearly, accused-appellants cannot be charged with or convicted of the crime of Kidnapping and Serious Illegal Detention, since the first element of the said crime is that the offender must be a private individual. In the case at bar, accused-appellants were members of the local CAFGU at the time the alleged crime was committed. The CAFGU was created pursuant to Executive Order No. 264 for the purpose of complementing the operations of the regular force formations in a locality.9 It was composed of civilian volunteers who were tasked to maintain peace and order in their localities, as well as to respond to threats to national security. As such, they were provided with weapons, and given the authority to detain or order detention of individuals.10 The Solicitor General recognizes the error of charging and convicting accused-appellants of Kidnapping and Serious Illegal Detention for the reason that the appellants are not private individuals, but public officers. As such, the Solicitor General submits that, under the facts alleged, accused-appellants can only be liable for the crime of Arbitrary Detention, defined and penalized in Article 124 of the Revised Penal Code. The prosecution maintains that inasmuch as all the other elements of Arbitrary Detention were alleged in the criminal information filed against the accused-appellants, they may still be convicted of said crime. Arbitrary detention is committed by any public officer or employee who, without legal grounds, detains a person. 11Since it is settled that accused-appellants are public officers, the question that remains to be resolved is whether or not the evidence adduced before the trial court proved that Samson Sayam was arbitrarily detained by accused-appellants. As far back as the case of U.S. v. Cabanag,12 it was held that in the crime of illegal or arbitrary detention, it is essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved, 13 just as the intent of the accused to deprive the victim of his liberty must also be established by indubitable proof. 14 In the more recent case of People v. Fajardo,15 this Court reiterated the ruling in U.S. v. Cabanag, i.e., there must be uncontroverted proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction. Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. 16 A careful review of the records of the instant case shows no evidence sufficient to prove that Samson Sayam was detained arbitrarily by accused-appellants. While the prosecution witnesses testified that accused-appellants were seen walking with Samson Sayam toward the direction of the detachment headquarters, there is no shred of evidence that he was actually confined there or anywhere else. The fact that Samson Sayam has not been seen or heard from since he was last seen with accused-appellants does not prove that he was detained and deprived of his liberty. The prosecution, however, argues that Samson Sayam was deprived of his liberty when accused-appellants forced him to go with them when they left the store of Jerry Cabrillos and brought him to the detachment headquarters. We assayed the testimonies of the prosecution's main witnesses, namely, Carlito Manlangit and his son Jerry Manlangit. Carlito Manlangit's testimony was offered to prove that Samson Sayam was forcibly taken from the store and that the latter tried his best to free himself from his abductors. And yet, all that Carlito testified to was that he saw Samson Sayam crossing the street alone from the store of a certain Moleng; that the four accused, who were armed, followed Sayam and asked for his residence certificate; that the four accused apprehended Samson Sayam and brought him to the detachment headquarters; and that he went home after he saw Samson Sayam talking to the accused. 17 It is readily apparent that Carlito Manlangit's testimony failed to prove the stated purpose thereof, i.e., that Samson Sayam was taken forcibly to the detachment headquarters. To be sure, the witness did not state that Samson Sayam was pulled, dragged, or coerced to go with accusedappellants. Neither did he say that Samson Sayam was taken at gunpoint. There is also no relevant testimony to the effect that Samson Sayam tried his best to free himself from the clutches of accused-appellants. For if that were the truth, the reactions of Carlito Manlangit do not conform to human experience. If he really witnessed Samson Sayam being apprehended, forcibly taken, and trying to free himself, it cannot be logically explained why Carlito Manlangit just went home, 18 instead of doing anything to help Samson Sayam. He admitted that he did not immediately report the incident to the authorities. 19 More telling is the absence of testimony to the effect that Samson Sayam was being taken to the detachment headquarters against his will, that he was protesting his apprehension, or that he was asking for help, considering that there were other people within hearing and seeing distance. Most damaging is Carlito Manlangit's statement that he did not see Samson Sayam in the detachment headquarters with any or all of the accused.20 In fine, Carlito Manlangit's testimony failed to prove that Samson Sayam was arbitrarily detained or deprived of his liberty. Jerry Manlangit, son of Carlito, also testified for the prosecution. According to him, he and Samson Sayam went to Barangay Tabu to have a sack of palay milled on September 29, 1992. At around six in the evening, while on their way home, they passed by the store of Terry Cabrillos to buy kerosene. There, he saw the four accused drinking beer. Samson Sayam told him to go home because he had to show his

residence certificate and barangay clearance to accused-appellant Aaron Flores. Jerry Manlangit then proceeded to his residence in Hacienda Shangrila, located about half a kilometer away from the center of Barangay Tabu. Later, he told his father that Samson Sayam stayed behind and asked him to fetch Samson. He also testified that he heard gunshots coming from the direction of the detachment headquarters.21 The testimony of Jerry Manlangit does not prove any of the elements of the crime of arbitrary detention. Neither does it support nor corroborate the testimony of his father, Carlito, for they dealt on a different set of facts. Jerry Manlangit did not see any of accused-appellant apprehend or detain Samson Sayam. He did not even see if accused-appellant Flores really inspected the residence certificate and barangay clearance of Samson Sayam. The rest of his testimony comprised of hearsay evidence, 22 which has no probative value.23 In summary, Jerry Manlangit's testimony failed to establish that accused-appellants were guilty of arbitrary detention. The prosecution also presented the testimony of Nelson Golez, who identified the four accused as the persons with Samson Sayam, drinking inside the store of Terry Cabrillos. He also stated that following a heated argument, the accused and Samson Sayam left the store and went towards the direction of the detachment headquarters. He said that the accused were "holding and pulling" Samson Sayam "towards the road." Ten minutes later, Nelson Golez heard a single gunshot followed by rapid firing. 24 On cross-examination, however, Nelson Golez did not affirm his earlier statement that the accused and Samson Sayam were engaged in a heated argument. Rather, he said he did not hear them arguing as they were leaving the store. Although Nelson Golez attested that Samson Sayam was protesting while the accused were dragging him, he did not do anything to help Samson Sayam, who happened to be his cousin.25 Again, no conclusion of guilt can be inferred from Nelson Golez's testimony. First of all, he was unsure of his assertion that there was an argument. The mere fact that Samson Sayam was being dragged towards the road does not constitute arbitrary detention. There is no showing that Samson Sayam was completely deprived of his liberty such that he could not free himself from the grip of the accused, if he was indeed being held against his will. The incident transpired in a public place, where there were people milling about, many of whom were his friends. It is puzzling that Samson Sayam did not cry out for help. Nobody bothered to report the incident, if indeed it happened, to the barangay authorities. No one else came forward to corroborate the testimony of Nelson Golez. The testimony of Nelson Golez, by itself, lacks credibility. He wavered on material points, even as the prosecution failed to substantiate by direct or corroborative evidence the bare testimony of Nelson Golez. It is basic and elemental that in criminal prosecutions, before the accused may be convicted of a crime, his guilt must be proven beyond reasonable doubt. Although the findings of fact made by trial courts are generally not disturbed on appeal, if there are substantial facts which were overlooked but which may alter the results of the case in favor of the accused, such facts should be taken into account by the appellate court.26 And where it appears that the trial court erred in the appreciation of the evidence on record or the lack of it, the factual findings of the trial court may be reversed.27 After thoroughly reviewing the records of this case and weighing the testimonial evidence on the scale of creditworthiness and materiality, this Court finds the evidence of the prosecution grossly insufficient to sustain a conviction. Again, the fact of detention, whether illegal or arbitrary, was not clearly established by credible evidence. There was no showing that Samson Sayam was locked up, restrained of his freedom, or prevented from communicating with anyone. Likewise, there was no proof that there was actual intent on the part of accusedappellants to arbitrarily deprive Samson Sayam of his liberty. It is necessary that there must be a purposeful or knowing action by accusedappellants to restrain the victim by or with force, because taking coupled with intent completes the crime of illegal or arbitrary detention. 28 The prosecution, however, maintains that the evidence, even though circumstantial, sufficiently establishes the guilt of the accusedappellants. It cites the following circumstances: 1. On September 29, 1992, at about 6:00 o'clock in the evening, accused-appellants, together with their companions Sergeant Tampioc and fellow CAFGU Sulpecio Silpao, were seen with Samson at the store of Terry Cabrillos. Accused-appellants were having a drinking spree. Later, they were seen engaged in a heated argument. 2. Thereafter, Samson was forcibly brought out of the store by accused-appellants by holding and pulling him towards the road. From another angle, another prosecution witness saw accused-appellants on the road arresting Samson. 3. Accused-appellants brought Samson towards the direction of the detachment of Brgy. Tabu. 4. Ten (10) minutes later, a gunshot was heard coming from the direction of the detachment followed by rapid firing. 5. After the incident, Samson was never seen again or heard from. 29 As already discussed, the above-enumerated circumstances were not established by clear and convincing evidence. And even if these acts were proven to be true, the combination of all these circumstances would still not be able to produce a conviction beyond reasonable doubt.

To our mind, the totality of these circumstantial evidence do not constitute an unbroken chain pointing to the fair and reasonable conclusion that the accused-appellants are guilty of the crime charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with the hypothesis that the accused-appellants are guilty, and inconsistent with the possibility that they are innocent.30Thus: SECTION 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 31 The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused.32 It is admitted that Samson Sayam was seen drinking with accused-appellants on that fateful night. However, the circumstances that there was a heated argument among them, and that the accused-appellants held and pulled Samson Sayam to the road and brought him towards the direction of the detachment headquarters was not sufficiently proven by material or relevant testimony. Moreover, the circumstance that gunshots were heard on that night have no relevancy to the case. Even if it were, it cannot be concluded that the gunshots came from the direction of the detachment headquarters. The witnesses who testified that they heard the gunshots were at least half a kilometer away from the center of the barangay, while the detachment headquarters itself was also some distance from the barangay. At night, especially in the rural areas when all is quiet, loud sounds such as gunshots reverberate and would seem to come from every direction. An ordinary person a kilometer away cannot, with certainty, point to the exact location where the gunshots would be coming from. That would otherwise be attributing expertise on such matters to the prosecution witnesses. That Samson Sayam was never seen or heard from again cannot be the basis for the trial court to render judgment convicting the accusedappellants. In fact, it has no bearing in this case because it is not one of the elements of the crime of arbitrary detention. Consequently, only one relevant circumstance was proved, i.e., that accused-appellants were the last persons seen with Samson Sayam. However, said circumstance does not necessarily prove that they feloniously abducted him, then arbitrarily detained him. 33 Moreover, mere suspicion that the disappearance of Samson Sayam was a result of accused-appellants' alleged criminal acts and intentions is insufficient to convict them. Proof beyond reasonable doubt is the required quantum of evidence. 34 An uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt.35 The prosecution was not able to prove a possible motive why accused-appellants would arbitrarily detain Samson Sayam. In sum, there is no unbroken chain of circumstances leading to the conclusion that accused-appellants are guilty. Since the pieces of circumstantial evidence do not fulfill the test of moral certainty that is sufficient to support a judgment or conviction, the Court must acquit the accused. 36 In the recent case of People v. Comesario,37 we had occasion to rule that: Accused-appellant's conviction by the trial court hinged on circumstantial evidence. To validly invoke circumstantial evidence, it must be shown that there is more than one circumstance and the facts from which the inferences are derived are proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstances must constitute an unbroken chain of events that can lead reasonably to the conclusion pointing to the accused to the exclusion of all others as the author of the crime. Logically, it is where the evidence is purely circumstantial that there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused. Like a tapestry made of strands which create a pattern when interwoven, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. Accused-appellants enjoy the presumption of innocence until the contrary is proved. In the case at bar, the pieces of testimonial evidence relied on by the prosecution and the trial court to support a conviction have failed to overcome the constitutional precept of the presumed innocence of accused-appellants. Among other grounds, not only is there a lot of room for reasonable doubt in regard to their guilt, there is a virtual dearth of convincing evidence to prove that a crime had been committed. There is no need even to assess the evidence of the defense, for the prosecution bears the onus to distinctly and indubitably prove that a crime had been committed by accused-appellants.38 It is incumbent upon the prosecution to establish its case with that degree of proof which leads to no other conclusion but conviction in an unprejudiced mind. The evidence for the prosecution must stand or fall on its own merits for it cannot be allowed to draw strength from the weakness of the evidence for the defense. 39 Clearly, the prosecution in this case has failed to prove the guilt of accused-appellants beyond reasonable doubt. In similar cases, this Court has often and consistently ruled that it is better to acquit a guilty person than to convict an innocent one. 40

WHEREFORE, the assailed decision is REVERSED and SET ASIDE. Accused-appellants are ACQUITTED. Unless being held or detained for some lawful reason, accused-appellants are ORDERED RELEASED immediately. The Director of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the date and time when accused-appellants are released pursuant to this Decision. SO ORDERED. Davide, Jr., C .J ., Puno and Pardo, JJ ., concur. Kapunan, J ., is on leave. SECOND DIVISION

[G.R. Nos. 153524-25. January 31, 2005] RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON. ANIANO DESIERTO in his capacity as Head of the Office of the Ombudsman, HON. ORLANDO C. CASIMIRO in his capacity as Deputy Ombudsman for Military, P/INS. JEFFREY T. GOROSPE, SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B. ALVIAR, JR., PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1 JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4 PEDRO PAREL, respondents. DECISION CHICO-NAZARIO, J.: Yet again, we are tasked to substitute our judgment for that of the Office of the Ombudsman in its finding of lack of probable cause made during preliminary investigation. And, yet again, we reaffirm the time-honored practice of non-interference in the conduct of preliminary investigations by our prosecutory bodies absent a showing of grave abuse of discretion on their part. Petitioners, thru a special civil action for certiorari,[1] contend precisely that the public respondents herein officers of the Office of the Ombudsman gravely abused their discretion in dismissing the complaint for violation of Article 125 of the Revised Penal Code (Delay in the delivery of detained persons) against private respondents herein, members of the Philippine National Police stationed at the Municipality of Santa, Ilocos Sur. From the respective pleadings[2] of the parties, the following facts appear to be indubitable: 1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day before the 14 May 2001 Elections [3]), petitioners were arrested without a warrant by respondents police officers for alleged illegal possession of firearms and ammunition; 2. Petitioner Soria was arrested for alleged illegal possession of .38 cal. revolver (a crime which carries with it the penalty of prision correccional in its maximum period) and for violation of Article 261 par. (f) of the Omnibus Election Code in relation to the Commission on Election Resolution No. 3328 (which carries the penalty of imprisonment of not less than one [1] year but not more than six [6] years); 3. Petitioner Bista was arrested for alleged illegal possession of sub-machine pistol UZI, cal. 9mm and a .22 cal. revolver with ammunition; 4. Immediately after their arrest, petitioners were detained at the Santa, Ilocos Sur, Police Station. It was at the Santa Police Station that petitioner Bista was identified by one of the police officers to have a standing warrant of arrest for violation of Batas Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of Vigan, Ilocos Sur, docketed as Criminal Case No. 12272; 5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election day), petitioners were brought to the residence of Provincial Prosecutor Jessica Viloria in San Juan, Ilocos Sur, before whom a Joint-Affidavit against them was subscribed and sworn to by the arresting officers. From there, the arresting officers brought the petitioners to the Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at about 6:00 p.m. the Joint-Affidavit was filed and docketed; 6. At about 6:30 in the evening of the same day, 14 May 2001, petitioner Soria was released upon the order of Prosecutor Viloria to undergo the requisite preliminary investigation, while petitioner Bista was brought back and continued to be detained at the Santa Police Station. From the time of petitioner Sorias detention up to the time of his release, twenty-two (22) hours had already elapsed; 7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was brought before the MTC of Vigan, Ilocos Sur, where the case for violation of Batas Pambansa Blg. 6 was pending. Petitioner Bista posted bail and an Order of Temporary Release was issued thereafter; 8. At this point in time, no order of release was issued in connection with petitioner Bistas arrest for alleged illegal possession of firearms. At 4:30 in the afternoon of the same day (15 May 2001), an information for Illegal Possession of Firearms and Ammunition, docketed as Criminal Case No. 4413-S, was filed against petitioner Bista with the 4th Municipal Circuit Trial Court of Narvacan, Ilocos Sur.

At 5:00 in the afternoon, informations for Illegal Possession of Firearms and Ammunition and violation of Article 261 par. (f) of the Omnibus Election Code in relation to COMELEC Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No. 2268-N, respectively, were filed in the Regional Trial Court at Narvacan, Ilocos Sur; 9. On 08 June 2001, petitioner Bista was released upon filing of bail bonds in Criminal Cases No. 2268-N and No. 4413-S. He was detained for 26 days. 10. On 15 August 2001, petitioners filed with the Office of the Ombudsman for Military Affairs a complaint-affidavit for violation of Art. 125 of the Revised Penal Code against herein private respondents. 11. After considering the parties respective submissions, the Office of the Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002 dismissing the complaint for violation of Art. 125 of the Revised Penal Code for lack of merit; and 12. On 04 March 2002, petitioners then filed their motion for reconsideration which was denied for lack of merit in the second assailed Resolution dated 25 March 2002. Article 125 of the Revised Penal Code states: Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel. It is not under dispute that the alleged crimes for which petitioner Soria was arrested without warrant are punishable by correctional penalties or their equivalent, thus, criminal complaints or information should be filed with the proper judicial authorities within 18 hours of his arrest. Neither is it in dispute that the alleged crimes for which petitioner Bista was arrested are punishable by afflictive or capital penalties, or their equivalent, thus, he could only be detained for 36 hours without criminal complaints or information having been filed with the proper judicial authorities. The sole bone of contention revolves around the proper application of the 12-18-36 periods. With respect specifically to the detention of petitioner Soria which lasted for 22 hours, it is alleged that public respondents gravely erred in construing Article 125 [4] as excluding Sundays, holidays and election days in the computation of the periods prescribed within which public officers should deliver arrested persons to the proper judicial authorities as the law never makes such exception. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and applied without any attempts at interpretation. [5] Public respondents, on the other hand, relied on the cases of Medina v. Orozco, Jr.,[6] and Sayo v. Chief of Police of Manila[7] and on commentaries[8] of jurists to bolster their position that Sundays, holidays and election days are excluded in the computation of the periods provided in Article 125,[9] hence, the arresting officers delivered petitioners well within the allowable time. In addition to the foregoing arguments and with respect specifically to petitioner Bista, petitioners maintain that the filing of the information in court against petitioner Bista did not justify his continuous detention. The information was filed at 4:30 p.m. of 15 May 2001 but the orders for his release were issued by the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that based on law and jurisprudence, if no charge is filed by the prosecutor within the period fixed by law, the arresting officer must release the detainee lest he be charged with violation of Article 125.[10] Public respondents countered that the duty of the arresting officers ended upon the filing of the informations with the proper judicial authorities following the rulings in Agbay v. Deputy Ombudsman for the Military,[11] and People v. Acosta.[12] From a study of the opposing views advanced by the parties, it is evident that public respondents did not abuse their discretion in dismissing for lack of probable cause the complaint against private respondents. Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. [13] No grave abuse of discretion, as defined, can be attributed to herein public respondents. Their disposition of petitioners complaint for violation of Article 125 of the Revised Penal Code cannot be said to have been conjured out of thin air as it was properly backed up by law and jurisprudence. Public respondents ratiocinated thus: As aptly pointed out by the respondents insofar as the complaint of Rodolfo Soria is concerned, based on applicable laws and jurisprudence, an election day or a special holiday, should not be included in the computation of the period prescribed by law for the filing of complaint/information in courts in cases of warrantless arrests, it being a no-office day. (Medina vs. Orosco, 125 Phil. 313.) In the instant case, while it appears that the complaints against Soria for Illegal Possession of Firearm and Violation of COMELEC Resolution No. 3328

were filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at 4:30 p.m., he had already been released the day before or on May 14, 2001 at about 6:30 p.m. by the respondents, as directed by Prov. Prosecutor Jessica [Viloria]. Hence, there could be no arbitrary detention or violation of Article 125 of the Revised Penal Code to speak of. [14] Indeed, we did hold in Medina v. Orozco, Jr.,[15] that . . . The arresting officers duty under the law 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 petitioners arrest at 12:00 oclock 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 uncertainty of locating those officers and employees could very well compound the fiscals 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. And, in Sayo v. Chief of Police of Manila[16] -. . . 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 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. As to the issue concerning the duty of the arresting officer after the information has already been filed in Court, public respondents acted well within their discretion in ruling thus: In the same vein, the complaint of Edimar Bista against the respondents for Violation of Article 125, will not prosper because the running of the thirty-six (36)-hour period prescribed by law for the filing of the complaint against him from the time of his arrest was tolled by one day (election day). Moreover, he has a standing warrant of arrest for Violation of B.P. Blg. 6 and it was only on May 15, 2001, at about 2:00 p.m. that he was able to post bail and secure an Order of Release. Obviously, however, he could only be released if he has no other pending criminal case requiring his continuous detention. The criminal Informations against Bista for Violations of Article 125, RPC and COMELEC Resolution No. 3328 were filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes G and I, Complaint-Affidavit of Edimar Bista) but he was released from detention only on June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes J and K, Complaint-Affidavit). Was there a delay in the delivery of detained person to the proper judicial authorities under the circumstances? The answer is in the negative. The complaints against him was (sic) seasonably filed in the court of justice within the thirty-six (36)-hour period prescribed by law as discussed above. The duty of the detaining officers is deemed complied with upon the filing of the complaints. Further action, like issuance of a Release Order, then rests upon the judicial authority (People v. Acosta [CA] 54 O.G. 4739).[17] The above disposition is in keeping with Agbay v. Deputy Ombudsman for the Military,[18] wherein we ordained that . . . Furthermore, upon the filing of the complaint with the Municipal Trial Court, the intent behind Art. 125 is satisfied considering that by such act, the detained person is informed of the crime imputed against him and, upon his application with the court, he may be released on bail. Petitioner himself acknowledged this power of the MCTC to order his release when he applied for and was granted his release upon posting bail. Thus, the very purpose underlying Article 125 has been duly served with the filing of the complaint with the MCTC. We agree with the position of the Ombudsman that such filing of the complaint with the MCTC interrupted the period prescribed in said Article. All things considered, there being no grave abuse of discretion, we have no choice but to defer to the Office of the Ombudsmans determination that the facts on hand do not make out a case for violation of Article 125 of the Revised Penal Code. As we have underscored in numerous decisions -We have consistently refrained from interfering with the investigatory and prosecutorial powers of the Ombudsman absent any compelling reason. This policy is based on constitutional, statutory and practical considerations. We are mindful that the Constitution and RA 6770 endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutorial powers, virtually free from legislative, executive or judicial intervention, in order to insulate it from outside pressure and improper influence. Moreover, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal. Hence, if the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings, unless clothed with grave abuse of discretion. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it. In much the same way, the courts will be swamped with cases if they will have to review the exercise of discretion on the part of fiscals or prosecuting attorneys each time the latter decide to file an information in court or dismiss a complaint by a private complainant. [19] (Emphasis supplied)

WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and the Order dated 25 March 2002 of the Office of the Ombudsman are hereby AFFIRMED. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur. EN BANC

G.R. Nos. 83837-42 April 22, 1992 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MAXIMIANO C. ASUNCION, Presiding Judge of Branch 104, RTC, Quezon City, PATERNA RUIZ, NOLI G. NARCA, FR. NICK RUIZ, LYDIA R. NARCA, RODOLFO CORTEZA and TOMAS DOMINADO, respondents.

NOCON, J.: In a Petition for certiorari filed under Rule 65 of the Rules of Court, the People raise the issue of whether the crime of illegal possession of firearms, ammunition and explosives, punishable under P.D. 1866, is absorbed by the crime of subversion, i.e., membership in a subversive organization, punishable under R.A. 1700, as amended. The People filed this petition assailing the Resolution dated May 4, 1988 of respondent Judge Maximiano C. Asuncion, granting the motion of private respondents to quash the Information charging them with violation of P.D. 1866, as being void ab initio and the order dated June 8, 1988 denying petitioner's motion for reconsideration of said resolution. Private respondents Paterna Ruiz, Noli Narca, Fr. Nick Ruiz, Lydia Narca, Rodolfo Corteza, and Tomas Dominado, were charged with Subversion under R.A. 1700 before the Metropolitan Trial Court of Quezon City, Branch 40, based on the following information filed on February 10, 1988: That on or about the 1st and 2nd day of February, 1988 in Quezon City, Metro Manila Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another by overt acts with the common objective to overthrow the duly constituted government of the Republic of the Philippines, did, then and there, willfully and unlawfully and feloniously affiliate themselves with, become and remain members of the Communist Party of the Philippines/National Democratic Front and/or its successor or of any subversive association in violation of said law. 1 On February 12, 1988, six separate informations for violation of P.D. 1866 (Illegal Possession of Firearms) were filed against the same respondents before the Regional Trial Court of Quezon City, Branch 104. Said Informations in substantially identical language allege: That on or about the (1st and 2nd days) of February the accused without any authority of law, did, then and there, willfully, unlawfully and feloniously have in (his/her) possession and control and custody one (cal .45 pistol, armalite rifle, handgranade, fragmentation granade, M-14 rifle), without first securing any license/permit from the proper authority and that said firearm is being used in support and furtherance of the crime of subversion or rebellion. 2 The facts 3 as presented by the prosecution reveal that sometime in February 1988, elements of the Intelligence Service of the Armed Forces of the Philippines apprehended the private respondents in separate operations. Various ammunitions, firearms, and explosives were found in their possession, while subsequent searches in their respective hide-outs resulted in the confiscation of several subversive materials, including documents showing that they are ranking members of the Communist Party of the Philippines/New People's Army, or are mere members. Private respondents, in their motion to quash, 4 argued that the filing of two (2) separate informations for each of the accused violates the rule on double jeopardy, and that there being only a single criminal intent, the other offense of illegal possession of firearms, ammunition and explosives should be absorbed in the charge of violation of R.A. 1700, following the doctrine in People v. Hernandez. 5 The respondent Judge, in his questioned resolution, agreed with this contention and held:

After evaluating the grounds and the arguments in support of the same, the Court is of the opinion that the motion to quash, as prayed for should be GRANTED. Applying by analogy the doctrine laid down in the case of People v. Hernandez (99 Phil. 515), the possession of firearms, ammunition and explosives to which all the accused are charged before this Court is a constitutive ingredient of the crime of subversion and, hence, absorbed by the same and cannot be punished separately. Deadly weapons are needed and necessary to generate the kind of force and violence to accomplish the purpose of subversion. As pointed out by Atty. Poncevic Ceballos, counsel for the accused, the elements of force, violence and other illegal means mentioned in the law (R.A., 1700 as amended), may be done with the use of violence, explosives and ammunition or the possession thereof. 6 (Emphasis supplied) It should be recalled that in People v. Hernandez, supra, and even in the more recent cases of Enrile v. Amin, 7and Enrile v. Salazar, 8 the issue resolved is that the crime of rebellion cannot be complexed with, nor may a separate information be filed, for violation of common crimes, since force and violence are already necessary ingredients of the same. Private respondents do not dispute the fact that rebellion is distinct from subversion. However, they want to adopt by analogy existing jurisprudence on rebellion to subversion on the theory that both crimes are political offenses intended to destabilize and overthrow the government with the use of force, violence or other illegal means. 9 The trial court went along with respondents when it stated: . . . The possession of said items by all the accused, as alleged in the information, is the very element of force, violence, or other illegal means in the crime of subversion. So that the crime of alleged possession of firearms in furtherance of rebellion or, subversion cannot be separated from the charge of subversion. the former crime being merely an element of the latter crime. 10 We cannot agree. If We are to espouse the theory of the respondents that force and violence are the very essence of subversion, then it loses its distinction from rebellion. In People v. Liwanag,11 the Court categorically distinguished subversion from rebellion, and held: Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a crime distinct from that of actual rebellion. The crime of rebellion is committed by rising publicly and taking up arms against the Government for any of the purposes specified in Article 134 of the Revised Penal Code; while the Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership in a subversive organization as defined therein. In rebellion, there must be a public uprising and taking of arms against the Government; whereas, in subversion, mere membership in a subversive association is sufficient and the taking up of arms by a member of a subversive organization against the Government is but a circumstance which raises the penalty to be imposed upon the offender. (Emphasis supplied) Furthermore, in the case of Buscayno vs. Military Commissions, 12 this Court said that subversion, like treason, is a crime against national security, while rebellion is a crime against public order. Rising publicly and taking arms against the Government is the very element of the crime of rebellion. 13 On the other hand, R.A. 1700 was enacted to outlaw the Communist Party of the Philippines (CPP), other similar associations and its successors because their existence and activities constitute a clear, present and grave danger to national security. 14 The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy to overthrow the Government, not only by force and violence but also by deceit, subversion and other illegal means. This is a recognition that subversive acts do not only constitute force and violence (contra to the arguments of private respondents), but may partake of other forms as well. One may in fact be guilty of subversion by authoring subversive materials, where force and violence is neither necessary or indispensable. Private respondents contended 15 that the Court in Misolas v. Panga 16 impliedly ruled that if an accused is simultaneously charged with violation of P.D. 1866 and subversion, the doctrine of absorption of common crimes as applied in rebellion would have found application therein. The respondents relied on the opinion of this Court when it said: . . . in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case. 17 This is however a mere obiter. In the above case, the Court upheld the validity of the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is not applicable in that case, considering that the legislature deemed it fit to provide for two distinct offenses: (1) illegal possession of firearms qualified by subversion (P.D. 1866) and (2) subversion qualified by the taking up of arms against the Government (R.A. 1700). "The practical result of this may be harsh or, it may pose grave difficulty on an

accused in instances similar to those that obtain in the present case, but the wisdom of the legislature in the lawful exercise of its power to enact laws is something that the Court cannot inquire into . . ." 18 The Court further said: Undeniably, it is easier to prove that a person has unlawfully possessed a firearm and/or ammunition under P.D. 1866 than to establish that he had knowingly, willfully and by overt acts affiliated himself with, became or remained a member of the Communist Party of the Philippines and/or its successor or of any subversive organization under R.A. 1700, as conviction under the latter "requires that membership must be knowing or active, with specific intent to further the illegal objectives of the Party" (quoting from People v. Ferrer, supra). However, that the same act may be penalized under two different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the accused, will not necessarily call for the invalidation of the third paragraph of Section 1 of P.D. 1866 which provides for the higher penalty. 19 On the issue of whether the filing of the subsequent information constitutes double jeopardy, the trial court in its resolution articulated, thus: On the question of double jeopardy, the Court agrees with the observation of the herein accused that the filing of two separate informations against each of the accused constitute a violation of their constitutional right of not being twice put in jeopardy of punishment for the same offense where it can be shown that the offenses in question arise from a single criminal intent. (People v. Elkanish, 90 Phil. 53) The case of People v. Elkanish, 20 relied upon by the Honorable Judge, is not in point with the present case. Since We have resolved that P.D. 1866 can be prosecuted independently of R.A. 1700, there can be no double jeopardy. Double jeopardy can be invoked only if one offense is inseparable from another and proceeds from the same act, in which case, they cannot be subject to separate prosecutions. Art. III, Section 21 of the present Constitution provides: Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Implementing the constitutional provision, Rule 117, Section 7 of the Rules of Court provides as follows: When the accused has been convicted or acquitted, or the case against him has been dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Thus, according to a long line of cases, in order that a defendant may successfully allege former jeopardy, it is necessary that he had previously been (1) convicted or (2) acquitted, or (3) in jeopardy of being convicted of the offense charged, that is, that the former case against him for the same offense has been dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant has pleaded to the charge. Premises considered, We find this petition meritorious and the resolution of the trial court dated May 4, 1988 quashing the informations for violation of PD 1866 is hereby reversed and the informations reinstated. Let this case be remanded to the lower court for further proceedings and trial. Cost de oficio. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Davide, Jr. and Romero, JJ., concur. Regalado, J., concurs in the result. Bellosillo, J., took no part. SECOND DIVISION

G.R. No. 88189 July 9, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TIBURCIO ABALOS, accused-appellant.

REGALADO, J.:p In this appeal, accused-appellant Tiburcio Abalos seeks absolution from the judgment of conviction rendered by the Regional Trial Court, Branch 27, of Catbalogan, Samar which pronounced him guilty of the complex crime of direct assault with murder in Criminal Case No. 2302. His arguments in the present appeal turn on the central question of unwarranted credence allegedly extended by the trial court to the version of the criminal incident narrated by the sole prosecution witness. The totality of the evidence adduced, however, indubitably confirms appellant's guilt of the offense charged. Accordingly, we affirm. An information filed in the trial court, dated April 21, 1983, imputed the crime of direct assault with murder to herein appellant Tiburcio Abalos, alias "Ewet," with the allegations — That on or about the 20th day of March, 1983, at nighttime, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, with treachery and evident premeditation and knowing fully well that one Sofronio Labine was an agent of a person in authority being a member of the Integrated National Police with station at Catbalogan, Samar, did then and there willfully, unlawfully and feloniously attack, assault and strike said Sofronio Labine with a piece of wood, which said accused ha(d) conveniently provided himself for the purpose while said P/Pfc. Sofronio Labine, a duly appointed and qualified member of the said INP, was engaged in the performance of his official duties or on the occasion of such performance, that is, maintaining peace and order during the barangay fiesta of Canlapwas, of said municipality, thereby inflicting upon him "Lacerated wound 2 inches parietal area right. Blood oozing from both ears and nose" which wound directly caused his death. That in the commission of the crime, the aggravating circumstance of nocturnity was present.1 At his arraignment on June 7, 1983, appellant, with the assistance of counsel, entered a plea of not guilty. 2 The trial conducted thereafter culminated in the decision3 of the trial court on February 3, 1989 finding appellant guilty as charged and meting out to him the penalty of "life imprisonment, with the accessories of the law." Appellant was likewise ordered to indemnify the heirs of the victim in the sum of P30,000.00; actual and compensatory damages in the amount of P2,633.00, with P15,000.00 as moral damages; and to pay the costs. 4 As recounted by prosecution witness Felipe Basal, a farmer residing in Barangay Pupua, Catbalogan, Samar, appellant assaulted the victim, Pfc. Sofronio Labine, at around 8:00 P.M. of March 20, 1983, which was then the day of the barangay fiesta celebrations in Barangay Canlapwas, Catbalogan, Samar. The incident transpired near the house of appellant at the said barangay. Felipe Basal was then having a drinking session in front of the shanty of one Rodulfo Figueroa, Jr. which was situated just a few meters from the residence of appellant. According to Basal, at about that time he noticed the father of appellant, Police Major Cecilio Abalos, scolding his employees in his transportation business for turning in only two hundred pesos in earnings for that day. While Major Abalos was thus berating his employees, appellant arrived and asked his father not to scold them and to just let them take part in the barangay festivities. This infuriated the elder Abalos and set off a heated argument between father and son. 5 While the two were thus quarreling, a woman shouted "Justicia, boligue kumi! Adi in mag-a-aringasa." meaning, "Police officer, help us! Somebody's making trouble here." The victim, Pfc. Sofronio Labine, then appeared on the scene and asked Major Abalos, "What is it, sir?" The victim saluted Abalos when the latter turned around to face him. As Major Abalos leveled his carbine at Labine, appellant hurriedly left and procured a piece of wood, about two inches thick, three inches wide and three feet long, from a nearby Ford Fiera vehicle. He then swiftly returned and unceremoniously swung with that wooden piece at Labine from behind, hitting the policeman at the back of the right side of his head. Labine collapsed unconscious in a heap, and he later expired from the severe skull fracture he sustained from that blow. Felipe Basal and his wife took flight right after appellant struck the victim, fearful that they might be hit by possible stray bullets6 should a gunfight ensue. Appellant's testimony, on the other hand, is of a different tenor. He admits having struck Labine with a piece of wood during the incident in question but claims that he did so in the erroneous belief that his father was being attacked by a member of the New People's Army (NPA). According to appellant, he was then seated inside their family-owned Sarao jeepney parked beside the store of Rodulfo Figueroa, Jr. near their home in Barangay Canlapwas when he noticed a man in fatigue uniform suddenly accost his father. At that time, appellant's father had just arrived from a trip from Wright, Samar and had just alighted from his service vehicle, a Ford Fiera.

The man tried to disarm Major Abalos of his firearm but the latter resisted and while the two were grappling for possession of the gun, appellant instinctively went to the rescue of his father. He got a piece of wood from Figueroa's store with which he then clubbed Labine whom he did not recognize at that point. When Labine fell to the ground from the blow, appellant immediately fled to Barangay Mercedes nearby, fearing that the man had companions who might retaliate. When he came to know of the identity of his victim the following morning, he forthwith surrendered to the authorities.7 As mentioned at the outset, the foregoing version of the factual antecedents as presented by appellant was roundly rejected by the lower court which found the same unworthy of belief. Appellant ascribes reversible errors to the trial court (a) in not giving credence to the evidence adduced by the defense; (b) in believing the evidence presented by the prosecution; (c) in relying on the prosecution's evidence which falls short of the required quantum of evidence that would warrant a conviction; (d) in finding that treachery attended the commission of the crime and failing to credit in appellant's favor his voluntary surrender; and (e) in finding appellant guilty beyond reasonable doubt of the crime charged.8 In the main, appellant insists that the trial court should not have given credence to the story of the lone eyewitness for the prosecution. He also contends that since the testimony of that witness bore clear traces of incredibility, particularly the fact that he could not have had a clear view of the incident due to poor visibility, the prosecution should have presented as well the woman who had called for help at the height of the incident if only to corroborate Basal's narration of the events. Appellant also assails as inherently incredible the fact that it took quite a time for witness Felipe Basal to come forward and divulge what he knew to the authorities. All these, unfortunately, are flawed arguments. From the evidence in the case at bar, the prosecution has convincingly proved, through the clear and positive testimony of Basal, the manner in which the victim was killed by herein appellant. The record is bereft of any showing that said prosecution witness was actuated by any evil motivation or dubious intent in testifying against appellant. Moreover, a doctrine of long standing in this jurisdiction is that the testimony of a lone eyewitness, if credible and positive, is sufficient to convict an accused. 9 There was thus no need, as appellant would want the prosecution to do, to present in court the woman who shouted for assistance since her testimony would only be corroborative in nature. The presentation of such species of evidence in court would only be warranted when there are compelling reasons to suspect that the eyewitness is prevaricating or that his observations were inaccurate. 10 Besides, it is up to the People to determine who should be presented as prosecution witness on the basis of its own assessment of the necessity for such testimony. 11 Also, no unreasonable delay could even be attributed to Felipe Basal considering that during the wake for Pfc. Labine, Basal came and intimated to the widow of the victim that he was going to testify regarding her husband's slaying. 12 Appellant's contention that the deceased had attacked and attempted to divest his father of his firearm is rather preposterous considering that no reason was advanced as to why the deceased patrolman would assault a police officer of superior rank. Parenthetically, the condition of visibility at the time of the incident was conducive not only to the clear and positive identification of appellant as the victim's assailant but likewise to an actual and unobstructed view of the events that led to the victim's violent death. Basal was seated just a few meters away from the protagonists whom he all knew, he being also a long-time resident of that municipality. There was a twelve-foot high fluorescent lamppost located along the road and which, by appellant's own reckoning, was just seventeen meters away from them. 13 Notwithstanding the fact that a couple of trees partly obstructed the post, the illumination cast by the fluorescent lamp and the nearby houses provided sufficient brightness for the identification of the combatants. Curiously enough, appellant's assertion that there was poor visibility is ironically contradicted by his testimony which is detailed on facts that one could readily recall after witnessing an event in broad daylight. While appellant considers unbelievable Basal's identification of him supposedly because of inadequate lighting, he himself, under the same conditions, could clearly see his father's assailant wearing a fatigue uniform which was different from that worn by policemen. He even asserts that he saw his father clutching the carbine with his hands holding the butt while his purported assailant held on tightly to the rifle. 14 What these facts establish is that the lights in the area at the time of the incident were enough to afford Basal an excellent view of the incident, contrary to appellant's pretense. Appellant's testimony is thus negated by the rule that evidence, to be believed, must have been given not only by a credible witness, but that the same must also be reasonably acceptable in itself. Appellant's flight right after he had assaulted the victim is also corrosive of his testimony. For, if it were true that he had merely labored under the wrong notion that his father was being attacked by a member of the NPA, and that it was an innocent case of error in personae, he could have readily surrendered to his father right then and there. After all, Cecilio Abalos was a police major and was the Station Commander of the Integrated National Police (INP) in Wright, Samar. Further, there was no necessity at all for him to flee from the crime scene for fear of retaliation considering that he was in the company of his own father who, aside from his position, was then armed with a carbine. Appellant's explanation is, therefore, absurd and should be considered as self-serving evidence with no weight in law. On the offense committed by appellant, the trial court correctly concluded that he should be held accountable for the complex crime of direct assault with murder. There are two modes of committing atentados contra la autoridad o sus agentes under Article 148 of the Revised Penal Code. The first is not a true atentado as it is tantamount to rebellion or sedition, except that there is no public uprising. On the other hand, the second mode is the more common way of committing assault and is aggravated when there is a weapon employed in the attack, or the offender is a public officer, or the offender lays hands upon a person in authority. 15

Appellant committed the second form of assault, the elements of which are that there must be an attack, use of force, or serious intimidation or resistance upon a person in authority or his agent; the assault was made when the said person was performing his duties or on the occasion of such performance; and the accused knew that the victim is a person in authority or his agent, that is, that the accused must have the intention to offend, injure or assault the offended party as a person in authority or an agent of a person in authority. 16 Here, Labine was a duly appointed member of the then INP in Catbalogan, Samar and, thus, was an agent of a person in authority pursuant to Article 152 of the Revised Penal Code, as amended. There is also no dispute that he was in the actual performance of his duties when assaulted by appellant, that is, he was maintaining peace and order during the fiesta in Barangay Canlapwas. Appellant himself testified that he personally knew Labine to be a policeman 17 and, in fact, Labine was then wearing his uniform. These facts should have sufficiently deterred appellant from attacking him, and his defiant conduct clearly demonstrates that he really had the criminal intent to assault and injure an agent of the law. When the assault results in the killing of that agent or of a person in authority for that matter, there arises the complex crime of direct assault with murder or homicide. 18 The killing in the instant case constituted the felony of murder qualified by alevosia through treacherous means deliberately adopted Pfc. Labine was struck from behind while he was being confronted at the same time by appellant's father. The evidence shows that appellant deliberately went behind the victim whom he then hit with a piece of wood which he deliberately got for that purpose. Obviously, appellant resorted to such means to avoid any risk to himself, knowing fully well that his quarry was a policeman who could readily mount a defense. The aggravating circumstances of evident premeditation and nocturnity, however, were not duly proven, as correctly ruled by the court below. On the other hand, appellant's voluntary surrender even if duly taken into account by the trial court would have been inconsequential. The offense is a complex crime, the penalty for which is that for the graver offense, to be imposed in the maximum period. Considering that the more serious crime of murder then carried the penalty of reclusion temporal in its maximum period to death, the imposable penalty should have been death. The mitigating circumstance, in that context, would have been unavailing and inapplicable since the penalty thus imposed by the law is indivisible. 19 At all events, the punishment of death could not be imposed as it would have to be reduced to reclusion perpetua due to the then existing proscription against the imposition of the death penalty. 20 However, the designation by the trial court of the imposable penalty as "life imprisonment" is erroneous, as the same should properly be denominated as reclusion perpetua. 21 Also, the death indemnity payable to the heirs of the victim, under the present jurisprudential policy, is P50,000.00. ACCORDINGLY, with the MODIFICATION that the penalty imposed upon accused-appellant Tiburcio Abalos should be reclusion perpetua, and that the death indemnity is hereby increased to P50,000.00, the judgment of the court a quo in Criminal Case No. 2302 is AFFIRMED in all other respects, with costs against accused-appellant. SO ORDERED. Romero, Puno, Mendoza and Torres, Jr., JJ., concur. SECOND DIVISION

[G.R. No. 106826. January 18, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR OLIVA @ Ka Ambot, EDGAR MANLAPAZ, BOCOY SEACHON, METCHEL IBAYA, JOEL CINCO, AMY INOPIA @ Ka Jinky, Ka Nelly, JOHN DOE and PETER DOE, Ka Yoli, Ka Gerson, NOLI SALCEDO @ Ka Tony, BOGOY MANLAPAZ, VIRGILIO PANGUILINAN @ Ka Ariel, Ka Riza, Ka Liza, accused. OSCAR OLIVA and NOLI SALCEDO, accused-appellants. DECISION QUISUMBING, J.: On appeal is the decision rendered on June 17, 1992, by the Regional Trial Court of Masbate, Masbate, Branch 48, in Criminal Case No. 5132, finding appellants guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to solidarily pay the heirs of the victim P50,000 as civil indemnity. On November 17, 1986, Assistant Provincial Fiscal Jesus Castillo filed an information for kidnapping which reads:

The undersigned 2nd Assistant Provincial Fiscal accuses Edgar Manlapaz (at large), Bogoy Seachon (at large), Metchel Ibaya (at large), Joel Cinco, Amy Inopia alias Ka Jinky (at large), Alias Ka Ambot, Alias Ka Nelly, John Doe and Peter Doe of the crime of Kidnapping, committed as follows: That on or about May 26, 1986, in the morning thereof, at barangay Mapea, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this court, the above-named accused confederating together and helping one another with the used of force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap, detain and keep one Jacinto Magbojos alias Dagoy against the latters will. Contrary to law.[1] First to be arraigned was Joel Cinco who entered a plea of not guilty to the abovequoted charge. On March 31, 1987, upon motion of the prosecution and with consent of Cinco, the trial court ordered the provisional dismissal of the case. The case against the rest of the accused who were at large was ordered archived. On October 21, 1988, the prosecution filed a motion to reinstate the case with motion to amend and admit amended information charging Oscar Oliva alias Ka Ambot as one of the co-accused in the kidnapping.[2] The trial court admitted the amended information. On February 1, 1989, Oscar Oliva was arraigned and entered a plea of not guilty. On March 1, 1989, the remains of the victim were exhumed. On May 9, 1989, Assistant Provincial Prosecutor Juan Gallego filed a second motion to admit amended information, this time, charging the accused with kidnapping with murder. The trial court admitted the said information which reads: The undersigned 4th Asst. Provl. Prosecutor accuses Oscar Oliva alias Ka Ambot, Edgar Manlapaz, Bocoy Seachon, Metchel Ibaya, Joel Cinco, Amy Inopia alias Ka Jinky, alias Ka Nelly, John Doe, and Peter Doe, Ka Yoli, Ka Gerson, Noli Salcedo alias Ka Tony, Bogoy Manlapaz, Virgilio Panguilinan alias Ka Ariel, Ka Riza, Ka Liza, of the crime of Kidnapping with Murder, committed as follows: That on or about May 26, 1986, in the morning thereof, at Barangay Mapea, Municipality of Masbate, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together, confederating with and mutually helping one another with the use of force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap, detain and keep one Jacinto Magbojos alias Dagoy against the latters will, and with intent to kill, with treachery, evident premeditation and use of superior strength, did then and there willfully, unlawfully and feloniously took turns in stabbing and shooting the victim in the different parts of his body causing his instantaneous death. CONTRARY TO LAW.[3] Upon arraignment, appellants Oliva and Salcedo, assisted by their respective counsel, entered a plea of not guilty to the charge. Thereafter, trial on the merits ensued. Subsequently, the trial court rendered judgment, convicting Oliva and Salcedo of murder but acquitting Joel Cinco of the offense charge, thus: WHEREFORE, the Court finds the accused Oscar Oliva alias Ka Ambot and Noli Salcedo alias Ka Nelly GUILTY of the crime of murder established by proof beyond reasonable doubt and hereby sentences said accused both Oscar Oliva and Noli Salcedo the penalty of RECLUSION PERPETUA and to pay jointly and solidarily the amount of P50,000.00 to the heirs of the late Jacinto Magbojos, Jr. without subsidiary imprisonment in case of insolvency and to pay the costs. WHEREFORE, the Court finds no sufficient evidence to warrant the conviction beyond reasonable doubt against accused Joel [C]inco and hereby renders a judgment of ACQUITTAL in favor of accused JOEL CINCO. His immediate release is hereby ordered unless he is legally detained for another distinct crime. SO ORDERED.[4] The prosecution evidence, upon which the finding of guilt beyond reasonable doubt was based, is summarized by the trial court as follows: In the early morning of May 26, 1986, Jacinto Magbojos Jr. left their house to count coconuts at his fathers coconut land uphill. At about 8:00 oclock that same morning, Joel Cinco, Michell Ibaya both out-of-school youth came to the house of the latter. After being informed by one of the Magbojos children that Jacinto went uphill for an errand, Joel Cinco and his companions immediately left. At about 10:30 oclock that morning, Jacinto Magbojos Jr. arrived home. At about that time, Mrs. Magbojos was cooking. Suddenly, four persons arrived and entered the house.A few minutes later, her husband Jacinto was hogtied by tying his hands at his back and Mr. Magbojos was told by the group to go out. The group with Jacinto Magbojos Jr. passed through the kitchen door while Mrs. Magbojos and the children passed the other door to the apple tree downstairs. The group took Jacinto Magbojos Jr. away and they walked towards the western direction. Earlier that day, Arturo Inopia, a farmer and also a resident of barangay Mapia, Masbate, had visitors in his house at about 8:30 or 9:00 oclock in the morning, namely: Ka Ambot, who turned to be Oscar Oliva, Ka Nelly who was later identified as Noli Salcedo, Ka Jinky and Jun Pangilinan who were all in green (fatigue) uniforms and armed, and Bogoy Manlapaz and Joel Cinco - the latter two being unarmed and

without uniforms. Arturo Inopia asked why they were in his house, and Ka Ambot replied that they have a mission to get Jacinto Magbojos Jr. After hearing the report of Jun de los Reyes, the group of Ka Ambot left for the barangay center of Mapia, Masbate but only after Ka Ambot gave a stern warning to Arturo Inopia not to report to the police authorities, otherwise, he (Inopia) will be killed. Later, at about noon of that same day, May 26, 1986, he was informed by his brother-in-law, Julito Soler, that they got Dagoy Magbojos. Elpidio Labajata, likewise a farmer, a resident of and a neighbor to Jacinto Magbojos Jr., that same morning of May 26, 1986, also went to the mountain to collect the corn he loaned to Jose Balatucan. In going to Balatucans house, he passed by the residence of Arturo Inopia where he saw several persons, four of whom were in fatigue uniforms and carrying firearms. In the group were Jun Pan[g]ilinan, Joel Cinco, Oscar Oliva and Noli Salcedo. When he returned home that same day, he met six (6) persons, two of whom were Jacinto Magbojos Jr. and Julio (Bagoy) Seachon. He noticed that Jacinto Magbojos Jr. was hogtied by coralon ropes and appeared very weak and with abrasions on both sides of his face and can hardly talk. He recalled that at that time, Jacinto Magbojos Jr. was wearing white shorts with green linings and a red T-shirt. He was investigated by Oscar Oliva and he was asked where he resides and whether he knew Jacinto Magbojos Jr. When he answered affirmatively, he was also hogtied by Oscar Oliva. However, he pleaded for his life and fortunately, he was released but with the condition that he will leave Mapia, Masbate. Sometime in early 1989, Renato Magbojos, a policeman assigned to INP, Dimasalang, Masbate and an elder brother of Jacinto Magbojos Jr., met Levelito Tubieron, a resident of barangay Cancahurao, Baleno, Masbate, on board the MV Misamis Occidental. Levelito Tubieron was bound for Manila and told Renato that he knew the place where his brother Jacinto Jr. was buried.Tubieron further told Renato Magbojos that he was present when Jacinto Jr. was buried because he was the one who was asked by the group of Oscar Oliva to accompany them to the burial site in the land owned by Jeremias Bello at sitio Cabuluan, Barangay Cancahurao, Baleno, Masbate. On March 1, 1989, the remains of Jacinto Magbojos Jr. were exhumed from a shallow graveyard, a dry sand beside the hill at sitio Cabuluan. The digging itself of the grave was done by Levelito Tubieron, assisted by Tito Bello, PTA president, and witnessed by no less than Elena Bello, the acting barangay captain of Cancahurao, police officers led by Sgt. Gener Magbojos and Pat. Virgilio Cabuhat and some barangay residents. Recovered from the graveyard were human bones, a T-shirt, a pair of short pants, coralon rope, a brief and black rubber band. On the witness stand, these personal belongings were identified to be those worn by the victim Jacinto Magbojos Jr. on that fatal day of May 26, 1986 by no less than his (ex) wife, Erlinda Gonzaga. After they were examined by Dr. Emilio Quemi, the remains of the late Jacinto Magbojos Jr. were buried at the Masbate New Cemetery. [5] Appellant Oliva claimed that he had no participation in the commission of the crime. In summary, he testified that: [He] has been in Manila since last week of December 1985. He boarded the ship from Masbate in the company of one Natividad Querbo, a resident of Nabangig, Palanas, Masbate, and went with her to Valenzuela, Bulacan. He stayed with Natividad Querbo in the house of the younger brother of the latter at Kinalagan, Valenzuela, Bulacan. After the EDSA revolution, he came home to Masbate and stayed in the third district as NPA commanding officer. Earlier, in 1982 or 1983, Oscar Oliva has been a territorial commander. In 1988, he was promoted and handled the so called REFO RECOM V organization tasked to unite Masbateos in the labor front, with the restaurant of Q-Mart, Makati and Manila as their centers of activities. This lasted for one (1) month. Later, Oscar Oliva was summoned by one Sotero Llamas to report to Bicol. He was reprimanded sometime in June 1986. In July 30, 1988, he surrendered to Lt. Colonel Pansepane of the 2nd Infantry Brigade, Philippine Army at Matacon, Polangui, Albay and thereafter stayed at Mahayahay, Talusan, Zamboanga del Sur where his wife has an elder sister. From there, they went to Manila, then Navotas. Oscar came back to Masbate to follow up his application papers for amnesty. During that period, he was granted by the Philippine Constabulary a safe conduct pass for one (1) month.While transacting with the local office of the Department of Social Welfare and Development, he was invited by the commanding officer of the PC-INP command through Lt. Poses. He reported to the PC camp and it was there where he was informed that a case has been filed against him. He was not, however, showed a copy of the warrant for his arrest. Oscar Oliva admitted on the witness stand that when he was promoted to the position of Intelligence Officer, his entire jurisdiction is the entire Masbate territory. It was during the ceasefire agreed by and between the government and the CPP-NPA insurgents that he was able to reach barangay Mapia and to conduct pulong-pulong. He likewise stated in open court that Levelito Tubieron is in the list of shoot-to-kill order, while Arturo Inopia is allegedly a member of the (dreaded) group called Walang Patawad, having pretended as an NPA member for business extortion. [6] Appellant Salcedo also maintained his innocence. He gave his own version of the story as follows: On May 26, 1986, he was in Metro Manila working as a furniture polisher in the shop owned by a certain Captain Condor. He left Masbate for Manila sometime in 1985, and returned to Masbate in 1987 to visit his parents, after which he again went to Manila. In 1988, he came home to Masbate, and engaged himself in farming at Lagta, Baleno. He said he had no knowledge of the incident involving Jacinto Magbojos Jr. and he does not know him, nor does he know Oscar Oliva neither Joel Cinco. He was apprehended on August 5, 1988 at the house of his cousin Arturo Sulat, neighbor of Ben Albao, likewise a cousin, at barangay Kinamaligan, Masbate, Masbate. On that day he was arrested, Noli Salcedo was on his way to Baleno. When he was already on board the police vehicle, he jumped out and attempted to escape from his captors. Unfortunately, he fell outbalanced and the police officers fired several shots at him and he was hit at the right foot and on the left thigh. He was brought to the Masbate Provincial Hospital where he was treated for about three (3) months. He stated that he has not gone to barangay Mapia which is about five (5) kilometers away from Lagta, Baleno, and would take approximately five hours walking.[7] On the basis of the evidence presented by the prosecution, the court found Oliva and Salcedo guilty beyond reasonable doubt of murder, not kidnapping with murder. However, Joel Cinco was acquitted. Hence, insisting on their innocence, Oliva and Salcedo instantly appealed. [8] In his brief, Oliva raises the following errors allegedly committed by the trial court:

[I] THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR IN TRYING THE ACCUSED-APPELLANT OSCAR OLIVA OF THE CRIME OF KIDNAPPING WITH MURDER AND CONVICTING HIM OF MURDER, CONSIDERING ITS FULL KNOWLEDGE OF THE PROSECUTION AS WELL AS DEFENSE EVIDENCE THAT SAID OSCAR OLIVA IS A MEMBER OF THE COMMUNIST PARTY OF THE PHILIPPINES AND A COMMANDER OF THE NEW PEOPLES ARMY. GRANTING WITHOUT ADMITTING THAT HE CAN LAWFULLY BE PRESUMED AS THE KILLER OF THE VICTIM. ALTHOUGH THE SAME IS NOT ALLOWED BY THE CONSTITUTION AND THE RULES OF COURT AND JURISPRUDENCE, AND ABOVE ALL, NOT WARRANTED BY EVIDENCE, IF AT ALL HE SHOULD BE PROSECUTED FOR A CRIME, HE MAY BE SO PROSECUTED FOR THE CRIME OF REBELLION WHICH ABSORBS THE CRIME OF KIDNAPPING OR MURDER, HENCE, THE DECISION APPEALED FROM SHOULD BE SET ASIDE. [II] THAT GRANTING WITHOUT ADMITTING THAT THE ACCUSED-APPELLANT OSCAR OLIVA COULD BE SEPARATELY PROSECUTED FOR THE CRIME OF KIDNAPPING WITH MURDER WHICH CRIMES ARE ABSORBED BY THE CRIME OF REBELLION AND COMMITTED IN FURTHERANCE THEREOF, THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR IN CONVICTING HIM OF THE CRIME OF MURDER BASED MERELY ON ALLEGED CIRCUMSTANTIAL EVIDENCE, AND WHICH, MISERABLY, DOES NOT PROVE BEYOND REASONABLE DOUBT THAT HE WAS THE ONE WHO KILLED THE VICTIM, SINCE THE ALLEGED WITNESS TO THE KILLING AND/OR BURIAL OF THE VICTIM IN THE ALLEGED PERSON OF LEVILITO TUBIERON WAS NEVER PRESENTED BY THE PROSECUTION TO TESTIFY IN COURT IN ORDER TO CONFIRM THE HEARSAY TESTIMONY OF PAT. RENATO MAGBOJOS.[9] For his part, Salcedo imputes only one error on the trial court, as follows: THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT NOLI SALCEDO GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.[10] The issue for resolution is whether or not the trial court erred in giving credence to the prosecution evidence and convicting appellants for the crime of murder, then sentencing them to reclusion perpetua. First, Oliva asserts that he should have been charged with rebellion instead of kidnapping with murder considering that he is a member of the Communist Party of the Philippines and a Commander of the New Peoples Army. He claims that the killing was committed in furtherance of rebellion, hence, it should be absorbed in rebellion. Olivas contention that he should have been charged with and tried for rebellion lacks factual and legal basis, hence, bereft of merit. True, one can be convicted only of rebellion where the murders, robberies and kidnapping were committed as a means to or furtherance of rebellion. Corollarily, offenses which were not committed in furtherance of the rebellion, but for personal reasons or other motives, are to be punished separately even if committed simultaneously with the rebellious acts.[11] In the instant case, there was no evidence at all to show that the killing of Jacinto Magbojos Jr. was in connection with or in furtherance of their rebellious act. Besides, it was not indubitably proved that Oliva was indeed a member of the New Peoples Army. Second, Oliva contends that there are no sufficient circumstances to prove beyond reasonable doubt that he took part in the commission of the crime. He claims that it was not conclusively established that he is Ka Ambot.[12] For his part, Salcedo contends the trial court erred in ruling that he was one of the perpetrators of the crime. [13] The foregoing contentions are related and so we shall discuss these together. True, there is no direct evidence as to who actually killed the victim. Nevertheless, direct evidence of the commission of the crime is not the only matrix whereby the trial court may draw its conclusions and findings of guilt. It is settled that conviction may be based on circumstantial evidence provided that the following requisites must concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial evidence is of a nature identically the same with direct evidence. It is equally direct evidence of minor facts of such a nature that the mind is led intuitively or by a conscious process of reasoning to the conviction that from them some other fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct. In either case, what is required is that there be proof beyond reasonable doubt that the crime was committed and that the accused committed the crime. [14] As noted by the trial court and the Solicitor General, the evidence is replete with details to prove the fact of death of the victim and to sustain the guilt of appellants. These are: (1) Arturo Inopia declared that at about 8:30 A.M. on May 26, 1986, Ka Ambot, Ka Nelly, Ka Jinky, Jun Panguilinan, who were all armed, Bogoy Manlapaz and Joel Cinco dropped by at his house in Mapina, Masbate and told him that they have a mission to get Jacinto Magbojos Jr.. He later identified Oliva and Salcedo as the same persons whom he knew as Ka Ambot and Ka Nelly respectively.[15] (2) Erlinda Gonzaga, the victims wife, testified that at about 10:30 A.M. on that day, four persons with long firearms entered their house, hogtied her husband, and forcibly took away the latter. She also stated that at that time her husband was wearing white short pants with green lining and red Adidas t-shirt.[16]

(3) Elpidio Labajata testified that while he was on his way to the mountain in the morning of the same day, he saw Oliva, Salcedo, Jun Panguilinan, Joel Cinco and two others in the house of Inopia. He also said that four of them had long guns. He also declared that when he returned home in the afternoon, he met the victim and Julio Seachon in the custody of Oliva, Salcedo and two other persons. He noticed that the victim was hogtied by coralon rope and appeared very weak and with abrasions on both sides of his face. He recalled that the victim was wearing red t-shirt and white short pants with green lining.[17] (4) The victim was never seen alive again. (5) The red shirt and white short pants together with the skeleton recovered from the shallow grave in Baleno, Masbate are the same clothing worn by the victim on the day he was abducted.The victims brother also identified the bracelet recovered from the grave as one belonging to the victim.[18] Also recovered was the rope used to hogtie the victim. (6) Dr. Emilio Quemi, a government physician, issued a certificate of death attesting to the death of Jacinto Magbojos Jr. [19] Concededly, there were no eyewitnesses who testified regarding the actual killing of the victim. Nonetheless, the abovecited circumstances taken together constitute in our view one unbroken chain leading to the fair and reasonable conclusion that appellants, to the exclusion of others, are responsible for the victims death. Appellants claim that their identities were not positively established are belied by the testimonies of witnesses. Inopia had seen Ka Ambot, Ka Nelly, Ka Jinky and Jun Panguilinan three times prior to the incident. He used to give them food and he also attended the pulongpulong conducted by Ka Ambot. In fact, even Oliva admits that he knows Inopia as one of the members of the group called Walang Patawad.[20] Certainly, Inopia knows Ka Ambot and Ka Nelly although earlier he did not know their real names. For his part, Labajata had seen Ka Ambot and Ka Nelly on several occasions before the incident. He saw them again in the morning on the day of the incident at the house of Inopia. In the afternoon, he met them again and this time, the victim was in their custody. He was also investigated and then hogtied though later released by Ka Ambot after pleading for his life.[21] For sure, Labajata had gained familiarity with Ka Ambot and Ka Nelly, hence, recognition was facilitated. Appellants also insist that the prosecution should have presented in court Levelito Tubieron who was allegedly the one tasked by the perpetrators to bury the body of the victim. In our view, this failure is not fatal to the case of the prosecution. The prosecution has discretion to determine whom it should present as its witness. Note that what Tubieron told Patrolman Renato Magbojos, the victims brother, is the location where the victim was buried. Note further that the victims remains were later dug up and recovered in said place. The fact of death and the identity of the victim were established by other duly proved circumstances. Now, with regard to appellants alibi. Oliva would like us to believe that he was in Metro Manila when the crime was committed. He said that he went there sometime in 1985 and returned to Masbate after the EDSA revolution.[22] Likewise, Salcedo claimed that from 1985 to 1987 he was in Metro Manila, working as a furniture polisher. He declared that he had no knowledge of the incident until he was apprehended.[23] In order that alibi will prevail, the defense must establish by positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission, and not merely that the accused were somewhere else. [24] This, appellants failed to show. As regards Oliva, his admission that he went back to Masbate after the EDSA revolution would not rule out his presence in the scene of the crime during its commission. Note that the EDSA revolution took place in the last week of February 1986. Hence, it was not impossible for him to be in the crime scene on May 26, 1986. With regard to Salcedo, aside from his own declaration that he was in Metro Manila at the time of the incident, no other evidence was presented to support his alibi. Besides, Oliva and Salcedo were positively identified as among the perpetrators of the crime. Accordingly, their alibis must fail. However, we cannot agree with the finding of the trial court that the killing was qualified by treachery. To appreciate treachery, two conditions must be present, to wit: (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted.[25] The settled rule is that treachery cannot be presumed but must be proved by clear and convincing evidence or as conclusively as the killing itself. [26] In the case at bar, although the fact of death and the identity of the victim and the identity of the perpetrators were established, there is no proof at all on how the killing was done. Thus, absent any particulars as to the manner in which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated.[27] Similarly, the circumstances of evident premeditation and use of superior strength alleged in the information cannot be appreciated as there is no evidence on record sufficient to prove the same. To conclude, since no qualifying circumstance was proved in this case, the crime committed is only homicide, not murder. Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is only reclusion temporal. As there were neither aggravating nor mitigating circumstances found by the trial court or shown after a review of the records, the penalty in this case shall be fixed in its medium period of reclusion temporal, which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor as a minimum to reclusion temporal in its medium period as the maximum. The range of prision mayor is from 6 years and 1 day to 12 years. The span of reclusion temporal, medium, is from 14 years, 8 months and 1 day to 17 years and 4 months. WHEREFORE, the assailed DECISION of the Regional Trial Court of Masbate, Masbate, Branch 48, in Criminal Case No. 5132, is hereby MODIFIED. Appellants Oscar Oliva and Noli Salcedo are hereby found GUILTY of HOMICIDE and sentenced to suffer a prison term of 10 years of the medium period of prision mayor, as minimum, to 15 years and 10 months and 1 day of the medium period of reclusion temporal, as maximum, with accessory penalties provided by law, to indemnify the heirs of the deceased Jacinto Magbojos Jr. in the amount of P50,000.00. and to pay the costs. SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. EN BANC G.R. No. L-17144

October 28, 1960

SERGIO OSMEÑA, JR., petitioner, vs. SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA, FAUSTINO TOBIA, LORENZO G. TEVES, JOPSE J. ROY, FAUSTINO DUGENIO, ANTONIO Y. DE PIO, BENJAMIN T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ, and EUGENIO S. BALTAO, in their capacity as members of the Special Committee created by House Resolution No. 59,respondents. Antonio Y. de Pio in his own behalf. F. S. Abeleda, A. b. Fernandez. E. S. Baltao and Tecla San Andres Ziga in their own behalf. C. T. Villareal and R. D. Bagatsing as amici curiae. BENGZON, J.: On July 14, 1960, Congressman Sergio Osmeña, Jr., submitted to this Court a verified petition for "declaratory relief, certiorari and prohibition with preliminary injunction" against Congressman Salapida K. Pendatun and fourteen other congressmen in their capacity as members of the Special Committee created by House Resolution No. 59. He asked for annulment of such Resolution on the ground of infringenment of his parliamentary immunity; he also asked, principally, that said members of the special committee be enjoined from proceeding in accordance with it, particularly the portion authorizing them to require him to substantiate his charges against the President with the admonition that if he failed to do so, he must show cause why the House should not punish him. The petition attached a copy of House Resolution No. 59, the pertinent portions of which reads as follows: WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio Osmeña, Jr., Member of the House of Representatives from the Second District of the province of Cebu, took the floor of this chamber on the one hour privilege to deliver a speech, entitled 'A Message to Garcia; WHEREAS, in the course of said speech, the Congressman from the Second District of Cebu stated the following:. xxx

xxx

xxx

The people, Mr. President, have been hearing of ugly reports that under your unpopular administration the free things they used to get from the government are now for sale at premium prices. They say that even pardons are for sale, and that regardless of the gravity or seriousness of a criminal case, the culprit can always be bailed out forever from jail as long as he can come across with a handsome dole. I am afraid, such an anomalous situation would reflect badly on the kind of justice that your administration is dispensing. . . . . WHEREAS, the charges of the gentleman from the Second District of Cebu, if made maliciously or recklessly and without basis in truth and in fact, would constitute a serious assault upon the dignity and prestige of the Office of 37 3 the President, which is the one visible symbol of the sovereignty of the Filipino people, and would expose said office to contempt and disrepute; . . . . Resolved by the House of Representative, that a special committee of fifteen Members to be appointed by the Speaker be, and the same hereby is, created to investigate the truth of the charges against the President of the Philippines made by Honorable Sergio Osmeña, Jr., in his privilege speech of June 223, 1960, and for such purpose it is authorized to summon Honorable Sergio Osmeña, jr., to appear before it to substantiate his charges, as well as to issue subpoena and/or subpoena duces tecum to require the attendance of witnesses and/or the production of pertinent papers before it, and if Honorable Sergio Osmeña, Jr., fails to do so to require him to show cause why he should not be punished by the House. The special committee shall submit to the House a report of its findings and recommendations before the adjournment of the present special session of the Congress of the Philippines. In support of his request, Congressman Osmeña alleged; first, the Resolution violated his constitutional absolute parliamentary immunity for speeches delivered in the House; second, his words constituted no actionable conduct; and third, after his allegedly objectionable speech and words, the House took up other business, and Rule XVII, sec. 7 of the Rules of House provides that if other business has intervened after the member had uttered obnoxious words in debate, he shall not be held to answer therefor nor be subject to censure by the House. Although some members of the court expressed doubts of petitioner's cause of action and the Court's jurisdiction, the majority decided to hear the matter further, and required respondents to answer, without issuing any preliminary injunction. Evidently aware of such

circumstance with its implications, and pressed for time in view of the imminent adjournment of the legislative session, the special committee continued to perform its talk, and after giving Congressman Osmeña a chance to defend himself, submitted its reports on July 18, 1960, finding said congressman guilty of serious disorderly behaviour; and acting on such report, the House approved on the same day— before closing its session—House Resolution No. 175, declaring him guilty as recommended, and suspending him from office for fifteen months. Thereafter, on July 19, 1960, the respondents (with the exception of Congressmen De Pio, Abeleda, San Andres Ziga, Fernandez and Balatao)1 filed their answer, challenged the jurisdiction of this Court to entertain the petition, defended the power of Congress to discipline its members with suspension, upheld a House Resolution No. 175 and then invited attention to the fact that Congress having ended its session on July 18, 1960, the Committee—whose members are the sole respondents—had thereby ceased to exist. There is no question that Congressman Osmeña, in a privilege speech delivered before the House, made the serious imputations of bribery against the President which are quoted in Resolution No. 59 and that he refused to produce before the House Committee created for the purpose, evidence to substantiate such imputations. There is also no question that for having made the imputations and for failing to produce evidence in support thereof, he was, by resolution of the House, suspended from office for a period of fifteen months for serious disorderly behaviour. Resolution No. 175 states in part: WHEREAS, the Special Committee created under and by virtue of Resolution No. 59, adopted on July 8, 1960, found Representative Sergio Osmeña, Jr., guilty of serious disorderly behaviour for making without basis in truth and in fact, scurrilous, malicious, reckless and irresponsible charges against the President of the Philippines in his privilege speech of June 23, 1960; and WHEREAS, the said charges are so vile in character that they affronted and degraded the dignity of the House of Representative: Now, Therefore, be it RESOLVED by the House of Representatives. That Representative Sergio Osmeña, Jr., be, as he hereby is, declared guilty of serious disorderly behaviour; and . . . As previously stated, Osmeña contended in his petition that: (1) the Constitution gave him complete parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (20 that his speech constituted no disorderly behaviour for which he could be punished; and (3) supposing he could be questioned and discipline therefor, the House had lost the power to do so because it had taken up other business before approving House Resolution No. 59. Now, he takes the additional position (4) that the House has no power, under the Constitution, to suspend one of its members. Section 15, Article VI of our Constitution provides that "for any speech or debate" in Congress, the Senators or Members of the House of Representative "shall not be questioned in any other place." This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United States. In that country, the provision has always been understood to mean that although exempt from prosecution or civil actions for their words uttered in Congress, the members of Congress may, nevertheless, be questioned in Congress itself. Observe that "they shall not be questioned in any other place" than Congress. Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec. 7), recognize the House's power to hold a member responsible "for words spoken in debate." Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is to enable and encourage a representative of the public to discharge his public trust with firmness and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom exercise of that liberty may occasion offense." 2 Such immunity has come to this country from the practices of Parliamentary as construed and applied by the Congress of the United States. Its extent and application remain no longer in doubt in so far as related to the question before us. It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But is does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. In the United States Congress, Congressman Fernando Wood of New York was censured for using the following language on the floor of the House: "A monstrosity, a measure the most infamous of the many infamous acts of the infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other congressmen were censured for employing insulting words during debate. (2 Hinds' Precedents, 799-801). In one case, a member of Congress was summoned to testify on a statement made by him in debate, but invoked his parliamentary privilege. The Committee rejected his plea. (3 Hinds' Precedents 123-124.) For unparliamentary conduct, members of Parliament or of Congress have been, or could be censured, committed to prison 3, even expelled by the votes of their colleagues. The appendix to this decision amply attest to the consensus of informed opinion regarding the practice and the traditional power of legislative assemblies to take disciplinary action against its members, including imprisonment, suspension or expulsion. It mentions one instance of suspension of a legislator in a foreign country.

And to cite a local illustration, the Philippine Senate, in April 1949, suspended a senator for one year. Needless to add, the Rules of Philippine House of Representatives provide that the parliamentary practices of the Congress of the United States shall apply in a supplementary manner to its proceedings. This brings up the third point of petitioner: the House may no longer take action against me, he argues, because after my speech, and before approving Resolution No. 59, it had taken up other business. Respondents answer that Resolution No. 59 was unanimously approved by the House, that such approval amounted to a suspension of the House Rules, which according to standard parliamentary practice may done by unanimous consent. Granted, counters the petitioner, that the House may suspended the operation of its Rules, it may not, however, affect past acts or renew its rights to take action which had already lapsed. The situation might thus be compared to laws4 extending the period of limitation of actions and making them applicable to actions that had lapsed. The Supreme Court of the United States has upheld such laws as against the contention that they impaired vested rights in violation of the Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold divergent views. At any rate, court are subject to revocation modification or waiver at the pleasure of the body adopting them." 5 And it has been said that "Parliamentary rules are merely procedural, and with their observancem, the courts have no concern. They may be waived or disregarded by the legislative body." Consequently, "mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisited number of members have agreed to a particular measure." 6 The following is quoted from a reported decision of the Supreme court of Tennessee: The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure, adopted for the orderly con duct of business, and as security against hasty action. (Bennet vs. New Bedford, 110 Mass, 433; Holt vs.Somerville, 127 Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W. 276; Ex parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277, 280; Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977, 124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107 Miss. 696, 65 So. 888; McGraw vs.Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meacham Contracting Co. 145 Ky. 181, 186, 140 S. W. Ann. Cas. 1913B, 802.) [Takenfrom the case of Rutherford vs. City of Nashville, 78 south Western Reporter, p. 584.] It may be noted in this connection, that in the case of Congressman Stanbery of Ohio, who insulted the Speaker, for which Act a resolution of censure was presented, the House approved the resolution, despite the argument that other business had intervened after the objectionable remarks. (2 Hinds' Precedents pp. 799-800.) On the question whether delivery of speeches attacking the Chief Executive constitutes disorderly conduct for which Osmeña may be discipline, many arguments pro and con have been advanced. We believe, however, that the House is the judge of what constitutes disorderly behaviour, not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which the House knows best but which can not be depicted in black and white for presentation to, and adjudication by the Courts. For one thing, if this Court assumed the power to determine whether Osmeña conduct constituted disorderly behaviour, it would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer upon a coordinate branch of the Government. The theory of separation of powers fastidiously observed by this Court, demands in such situation a prudent refusal to interfere. Each department, it has been said, had exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.) SEC. 200. Judicial Interference with Legislature. — The principle is well established that the courts will not assume a jurisdiction in any case amount to an interference by the judicial department with the legislature since each department is equally independent within the power conferred upon it by the Constitution. . . . . The general rule has been applied in other cases to cause the courts to refuse to intervene in what are exclusively legislative functions. Thus, where the stated Senate is given the power to example a member, the court will not review its action or revise even a most arbitrary or unfair decision. (11 Am. Jur., Const. Law, sec. p. 902.) [Emphasis Ours.]. The above statement of American law merely abridged the landmark case of Clifford vs. French.7 In 1905, several senators who had been expelled by the State Senate of California for having taken a bribe, filed mandamus proceeding to compel reinstatement, alleging the Senate had given them no hearing, nor a chance to make defense, besides falsity of the charges of bribery. The Supreme Court of California declined to interfere , explaining in orthodox juristic language: Under our form of government, the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taking in pursuance of the power committed exclusively to that department by the Constitution. It has been held by high authority that, even in the absence of an express provision conferring the power, every legislative body in which is vested the general legislative power of the state has the implied power to expel a member for any cause

which it may deem sufficient. In Hiss. vs. Barlett, 3 Gray 473, 63 Am. Dec. 768, the supreme court of Mass. says, in substance, that this power is inherent in every legislative body; that it is necessary to the to enable the body 'to perform its high functions, and is necessary to the safety of the state;' 'That it is a power of self-protection, and that the legislative body must necessarily be the sole judge of the exigency which may justify and require its exercise. '. . . There is no provision authority courts to control, direct, supervise, or forbid the exercise by either house of the power to expel a member. These powers are functions of the legislative department and therefore, in the exercise of the power this committed to it, the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do. We have underscored in the above quotation those lines which in our opinion emphasize the principles controlling this litigation. Although referring to expulsion, they may as well be applied to other disciplinary action. Their gist as applied to the case at bar: the House has exclusive power; the courts have no jurisdiction to interfere. Our refusal to intervene might impress some readers as subconscious hesitation due to discovery of impermissible course of action in the legislative chamber. Nothing of that sort: we merely refuse to disregard the allocation of constitutional functions which it is our special duty to maintain. Indeed, in the interest of comity, we feel bound to state that in a conscientious survey of governing principles and/or episodic illustrations, we found the House of Representatives of the United States taking the position upon at least two occasions, that personal attacks upon the Chief Executive constitute unparliamentary conduct or breach of orders. 8 And in several instances, it took action against offenders, even after other business had been considered.9 Petitioner's principal argument against the House's power to suspend is the Alejandrino precedent. In 1924, Senator Alejandrino was, by resolution of Senate, suspended from office for 12 months because he had assaulted another member of the that Body or certain phrases the latter had uttered in the course of a debate. The Senator applied to this Court for reinstatement, challenging the validity of the resolution. Although this Court held that in view of the separation of powers, it had no jurisdiction to compel the Senate to reinstate petitioner, it nevertheless went on to say the Senate had no power to adopt the resolution because suspension for 12 months amounted to removal, and the Jones Law (under which the Senate was then functioning) gave the Senate no power to remove an appointive member, like Senator Alejandrino. The Jones Law specifically provided that "each house may punish its members for disorderly behaviour, and, with the concurrence of two-thirds votes, expel an elective member (sec. 18). Note particularly the word "elective." The Jones Law, it mist be observed, empowered the Governor General to appoint "without consent of the Senate and without restriction as to residence senators . . . who will, in his opinion, best represent the Twelfth District." Alejandrino was one appointive Senator. It is true, the opinion in that case contained an obiter dictum that "suspension deprives the electoral district of representation without that district being afforded any means by which to fill that vacancy." But that remark should be understood to refer particularly to the appointive senator who was then the affected party and who was by the same Jones Law charged with the duty to represent the Twelfth District and maybe the view of the Government of the United States or of the Governor-General, who had appointed him. It must be observed, however, that at that time the Legislature had only those power which were granted to it by the Jones Law10; whereas now the Congress has the full legislative powers and preprogatives of a sovereign nation, except as restricted by the Constitution. In other words, in the Alejandrino case, the Court reached the conclusion that the Jones Law did not give the Senate the power it then exercised—the power of suspension for one year. Whereas now, as we find, the Congress has the inherent legislative prerogative of suspension11 which the Constitution did not impair. In fact, as already pointed out, the Philippine Senate suspended a Senator for 12 months in 1949. The Legislative power of the Philippine Congress is plenary, subject only to such limitations are found in the Republic's Constitution. So that any power deemed to be legislative by usage or tradition, is necessarily possessed by the Philippine Congress, unless the Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192, 212 .) In any event, petitioner's argument as to the deprivation of the district's representation can not be more weightly in the matter of suspension than in the case of imprisonment of a legislator; yet deliberative bodies have the power in proper cases, to commit one of their members to jail.12 Now come questions of procedure and jurisdiction. the petition intended to prevent the Special Committee from acting tin pursuance of House Resolution No. 59. Because no preliminary injunction had been issued, the Committee performed its task, reported to the House, and the latter approved the suspension order. The House had closed it session, and the Committee has ceased to exist as such. It would seem, therefore, the case should be dismissed for having become moot or academic. 13 Of course, there is nothing to prevent petitioner from filing new pleadings to include all members of the House as respondents, ask for reinstatement and thereby to present a justiciable cause. Most probable outcome of such reformed suit, however, will be a pronouncement of lack of jurisdiction, as in Vera vs. Avelino14 and Alejandrino vs. Qeuaon.15 At any rate, having perceived suitable solutions to the important questions of political law, the Court thought it proper to express at this time its conclusions on such issues as were deemed relevant and decisive.

ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered. Paras, C. J., Bautista Angelo, Concepcion, Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.

Separate Opinions REYES, J. B. L., J., dissenting: I concur with the majority that the petition filed by Congressman Osmeña, Jr. does not make out a case either for declaratory judgment or certiorari, since this Court has no original jurisdiction over declaratory judgment proceedings, and certiorari is available only against bodies exercising judicial or quasi-judicial powers. The respondent committee, being merely fact finding, was not properly subject to certiorari. I submit, however, that Congressman Osmeña was entitled to invoke the Court's jurisdiction on his petition for a writ of prohibition against the committee, in so far as House Resolution No. 59 (and its sequel, Resolution No. 175) constituted an unlawful attempt to divest him of an immunity from censure or punishment, an immunity vested under the very Rules of the House of Representatives. House Rule XVII, on Decorum and Debates, in its section V, provides as follows: If it is requested that a Member be called to order for words spoken in debate, the Member making such request shall indicate the words excepted to, and they shall be taken down in writing by the Secretary and read aloud to the House; but the Member who uttered them shall not be held to answer, nor be subject to the censure of the House therefor, if further debate or other business has intervened. Now, it is not disputed that after Congressman Osmeña had delivered his speech and before the House adopted, fifteen days later, the resolution (No. 59) creating the respondent Committee and empowering it to investigate and recommend proper action in the case, the House had acted on other matters and debated them. That being the case, the Congressman, even before the resolution was adopted, had ceased to be answerable for the words uttered by him in his privilege speech. By the express wording of the Rules, he was no longer subject to censure or disciplinary action by the House. Hence, the resolution, in so far as it attempts to divest him of the immunity so acquired and subject him to discipline and punishment, when he was previously not so subject, violates the constitutional inhibition against ex post facto legislation, and Resolution Nos. 59 and 175 are legally obnoxious and invalid on that score. The rule is well established that a law which deprives an accused person of any substantial right or immunity possessed by him before its passage is ex post facto as to prior offenses (Cor. Jur. vol. 16-A, section 144, p. 153; People vs. Mc Donnell, 11 Fed. Supp. 1015; People vs. Talklington, 47 Pac. 2d 368; U. S. vs.Garfinkel, 69 F. Supp. 849). The foregoing also answer the contention that since the immunity was but an effect of section 7 of House Rule XVII, the House could, at any time, remove it by amending those Rules, and Resolutions Nos. 59 and 175 effected such an amendment by implication. the right of the House to amend its Rules does not carry with it the right to retroactive divest the petitioner of an immunity he had already acquired. The Bill of Rights is against it. It is contended that as the liability for his speech attached when the Congressman delivered it, the subsequent action of the House only affected the procedure for dealing with that liability. But whatever liability Congressman Sergio Osmeña, Jr. then incurred was extinguished when the House thereafter considered other business; and this extinction is a substantive right that can not be subsequently torn away to his disadvantage. On an analogous issue, this Court, in People vs. Parel, 44 Phil., 437 has ruled: In regards to the point that the subject of prescription of penalties and of penal actions pertains to remedial and not substantive law, it is to be observed that in the Spanish legal system, provisions for limitation or prescription of actions are invariably classified as substantive and not as remedial law; we thus find the provisions for the prescription of criminal actions in the Penal Code and not in the 'Ley de Enjuiciamiento Criminal.' This is in reality a more logical law. In criminal cases prescription is not, strictly speaking, a matter of procedure; it bars or cuts off the right to punish the crime and consequently, goes directly to the substance of the action. . . . (Emphasis supplied.). I see no substantial difference, from the standpoint of the constitutional prohibition against ex post facto laws, that the objectionable measures happen to be House Resolutions and not statutes. In so far as the position of petitioner Osmeña is concerned, the essential point is that he is being subjected to a punishment to which he was formerly not amenable. And while he was only meted out a suspension of privileges that suspension is as much a penalty as imprisonment or a fine, which the House could have inflicted upon him had it been so minded. Such punitive action is violative of the spirit, if not of the letter, of the constitutional provision against ex post facto legislation. Nor is it material that the punishment was inflicted in the exercise of disciplinary power. "The ex post facto effect of a law," the Federal Supreme Court has ruled, "can not be evaded by giving civil form to that which is essentially criminal" (Burgess vs. Salmon, 97 L. Ed. [U. S.] 1104, 1106; Cummings vs. MIssouri, 18 L. Ed. 276).

The plain purpose of the immunity provided by the House rules is to protect the freedom of action of its members and to relieve them from the fear of disciplinary action taken upon second thought, as a result of political convenience, vindictiveness, or pressures. it is unrealistic to overlook that, without the immunity so provided, no member of Congress can remain free from the haunting fear that his most innocuous expressions may at any time afterwards place him in jeopardy of punishment whenever a majority, however transient, should feel that the shifting sands of political expediency so demand. A rule designed to assure that members of the House of the House may freely act as their conscience and sense of duty should dictate complements the parliamentary immunity from outside pressure enshrined in our Constitution, and is certainly deserving of liberal interpretation and application. The various precedents, cited in the majority opinion, as instances of disciplinary taken notwithstanding intervening business, are not truly applicable. Of the five instances cited by Deschkler (in his edition of Jefferson's Manual), the case of Congressman Watson of Georgia involved also printed disparaging remarks by the respondent (III Hinds' Precedents, sec. 2637), so that the debate immunity rule afforded no defense; that of Congressmen Weaver and Sparks was one of censure for actual disorderly conduct (II Hinds, sec. 1657); while the cases of Congressmen Stanbery of Ohio, Alex Long of Ohio, and of Lovell Rousseau of Kentucky (II Hinds, sec. 1248, 1252 and 1655) were decided under Rule 62 of the U. s. House of Representatives as it stood before the 1880 amendments, and was differently worded. Thus, in the Rousseau case, the ruling of Speaker Colfax was to the following effect (II Hinds' Precedents, page 1131): This sixty-second rule is divided in the middle a semicolon, and the Chair asks the attention of the gentleman from Iowa (Mr. Wilson) top the language of that rule, as it settles the whole question: 62. If a Member be called to order for words spoken in debate, the person calling him to be order shall repeat the words excerpted to — That is, the "calling to order" is "excepting" to words spoken in debate "and they shall be taken done in writing at the Clerk's table; and no Member shall be held to answer, or be subject to the censure of the House, for words spoken, or other business has intervened, after the words spoken, and before exception to them shall have been taken. The first part of this rule declares that "calling to order" is "excepting to words spoken in debate." the second part of the rule declares that a Member shall not be held subject to censure for words spoken in debate if other business has intervened after the words have been spoken and before "exception" to them has been taken. Exception to the words of the gentleman from Iowa (Mr. Grinnell) was taken by the gentleman from Illinois (Mr. Harding), the gentleman from Massachusetts (Mr. Banks), the gentleman from Kentucky (Mr. Rosseau), and also by the Speaker of the House, as the records of the Congressional Globe will show. The distinction is obvious between the two parts of the rule. In the first part it speaks of a Member excepting to language of another and having the words taken down. In the last part of the rule it says he shall not be censured thereafter unless exception to his words were taken; but it omits to add as an condition that words must also have been taken down. The substantial point, indeed the only point, required in the latter part of the rule is, that exception to the objectionable words must have taken. The difference between the Rules as invoked in these cases and the Rules of our House of Representatives is easily apparent. As Rule 62 of the United States House of Representatives stood before 1880, all that was required to preserve the disciplinary power of the Hose was that exception should have been taken to the remarks on the floor before further debate or other business intervened. Under the rules of the Philippines House of Representatives, however, the immunity becomes absolute if other debate or business has taken place before the motion for censure is made, whether or not exceptions or point of order have been made to the remarks complained of at the time they were uttered. While it is clear that the parliamentary immunity established in Article VI, section 15 of our Constitution does not bar the members being questioned and disciplined by Congress itself fro remarks made on the floor, that disciplinary power does not, as I have noted, include the right to retroactively amend the rules so as to divest a member of an immunity already gained. And if Courts can shield an ordinary citizen from the effects of ex post facto legislation, I see no reason why a member of Congress should be deprived of the same protection. Surely membership in the Legislature does not mean forfeiture of the liberties enjoyed by the individual citizen. The Constitution empowers each house to determine its rules of proceedings. If may not by its rules ignore constitutional restraint or violate fundamental rights and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitation all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just. (U. S. vs. Ballin, Joseph & Co., 36 Law Ed., 324-325.) Court will not interfere with the action of the state senate in reconsideration its vote on a resolution submitting an amendment to the Constitution, where its action was in compliance with its own rules, and there was no constitutional provision to the contrary. (Crawford vs. Gilchrist, 64 Fla. 41, 59 So. 963) (Emphasis supplied.). Finally, that this Court possesses no power to direct or compel the Legislature to act in any specified manner, should not deter it from recognizing and declaring the unconstitutionality and nullify of the questioned resolutions and of all action that has been disbanded after the case was filed, the basic issues remain so important as to require adjudication by this Court.

LABRADOR, J., dissenting: I fully concur in the above dissent Mr. Justice J. B. L. Reyes, Reyes, and I venture to add: Within a constitutional government and in a regime which purports to be one of law, where law is supreme, even the Congress in the exercise of the power conferred upon it to discipline its members, must follow the rules and regulation that it had itself promulgated for its guidance and for that of its members. The rules in force at the time Congressman Osmeña delivered the speech declared by the House to constitutes a disorderly conduct provides: . . . but the Member who uttered them shall not be held to answer, nor be subject to the censure of the House therefor, if further debate or other business has intervened. (Rule XVII, Sec. 7, Rules, House of Representatives.) Congressman Osmeña delivered the speech in question on June 23, 1960. It was only on July 8, or 15 days after June 23, 1060 when the House created the committee that would investigated him. For fully 15 days the House took up other matters. All that was done, while the speech was being delivered, was to have certains portions thereof deleted. I hold that pursuant to its own Rules the House may no longer punish Congressman Osmeña for the delivered fifteen days before. The fact that no action was promptly taken to punish Congressman Osmeña immediately after its delivery, except to have some part of the speech deleted, show that the members of the House did not consider Osmeña's speech a disorderly conduct. The idea to punish Congressman Osmeña, which came 15 days after, was, therefore, an afterthought. It is, therefore, clear that Congressman Osmeña is being made to answer for an act, after the time during which he could be punished therefor had lapsed. The majority opinion holds that the House can amend its rules any time. We do not dispute this principle, but we hold that the House may not do so in utter disregard of the fundamental principle of law that an amendment takes place only after its approval, or, as in this case, to the extent of punishing an offense after the time to punishing an had elapsed. Since the rule, that a member can be punished only before other proceedings have intervened, was in force at the time Congressman Osmeña delivered his speech, the House may not ignore said rule. It is said in the majority opinion that the rule limiting the period for imposition of a penalty for a speech to the day it was made, is merely one of procedure. With due respect to the majority, we do not think that it is merely a rule of procedure; we believe it actually is a limitation of the time in which the House may take punitive action against an offending member; it is alienation (in reference to time) on the liability to punishment. As Mr. Justice J.B.L., Reyes points out, the rule is substantive, not merely a procedural principle, and may not be ignored when invoked. If this Government of laws and not of men, then the House should observe its own rule and not violate it by punishing a member after the period for indictment and punishment had already passed. Not because the subject of the Philippic is no less than the Chief Magistrate of the nation should the rule of the House be ignored by itself. It is true that our Government is based on the principle of separation of powers between the three branches thereof. I also agree to the corollary proposition that this Court should not interfere with the legislature in the manner it performs its functions; but I also hold that the Court cannot abandon its duty to pronounce what the law is when any of its (the House) members, or any humble citizen, invokes the law. Congressman Osmeña had invoked the protection of a rule of the House. I believe it is our bounden duty to state what the rule being invoked by him is, to point out the fact that the rule is being violated in meting out punishment for his speech; we should not shirk our responsibility to declare his rights under the rule simply on the board excuse of separation of powers. Even the legislature may not ignore the rule it has promulgated for the government of the conduct of its members, and the fact that a coordinate branches of the Government is involved, should not deter us from performing our duty. We may not possess the power to enforce our opinion if the House chooses to disregard the same. In such case the members thereof stand before the bar of public opinion to answer for their act in ignoring what they themselves have approved as their norm of conduct. Let it be clearly understood that the writer of this dissent personally believe that vitreous attacks against the Chief Executive, or any official or citizen for that matter, should be condemned. But where the Rules, promulgated by the House itself, fix the period during which punishment may be meted out, said Rules should be enforced regardless of who may be prejudicated thereby. Only in that way may the supermacy of the law be maintained. EN BANC G.R. No. L-3820

July 18, 1950

JEAN L. ARNAULT, petitioner, vs. LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO BALAGTAS, Director of Prisons,respondents.

J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner. Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong, Lorenzo Tañada, and Vicente J. Francisco for respondents. OZAETA, J.: This is an original petition for habeas corpus to relieve the petitioner from his confinement in the New Bilibid Prison to which he has been committed by virtue of a resolution adopted by the Senate on May 15, 1950, which reads as follows: Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the P440,000, as well as answer other pertinent questions related to the said amount; Now, therefore, be it. Resolved, that for his refusal to reveal the name of the person to whom he gave the P440,000 Jean L. Arnault be committed to the custody of the Sergeant-at-Arms and imprisoned in the New Bilibid Prison, Muntinlupa, Rizal, until discharged by further order of the Senate or by the special committee created by Senate Resolution No. 8, such discharge to be ordered when he shall have purged the contempt by revealing to the Senate or to the said special committee the name of the person to whom he gave the P440,000, as well as answer other pertinent questions in connection therewith. The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be briefly stated as follows: In the latter part of October, 1949, the Philippine Government, through the Rural Progress Administration, bought two estates known as Buenavista and Tambobong for the sums of P4,500,000 and P500,000, respectively. Of the first sum, P1,000,000 was paid to Ernest H. Burt, a nonresident American, thru his attorney-in-fact in the Philippines, the Associated Estates, Inc., represented by Jean L. Arnault, for alleged interest of the said Burt in the Buenavista Estate. The second sum of P500,000 was all paid to the same Ernest H. Burt through his other attorney-in-fact, the North Manila Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest of the said Burt in the Tambobong Estate. The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine Government held a 25-year lease contract on said estate, with an option to purchase it for P3,000,000 within the same period of 25 years counted from January 1, 1939. The occupation Republic of the Philippines purported to exercise that option by tendering to the owner the sum of P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944, together with the accrued rentals amounting to P3224,000. Since 1939 the Government has remained in possession of the estate. On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to Ernest H. Burt, who made a down payment of P10,000 only and agreed to pay P5000,000 within one year and the remainder in annual installments of P500,000 each, with the stipulation that failure on his part to make any of said payments would cause the forfeiture of his down payment of P10,000 and would entitle the Hospital to rescind to sale to him. Aside from the down payment of P10,000, Burt has made no other payment on account of the purchase price of said estate. The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14, 1946, the Philippine Trust Company sold estate for the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and promise to pay P90,000 within nine months and the balance of P1,100,000 in ten successive installments of P110,000 each. The nine-month period within which to pay the first installment of P90,000 expired on February 14, 1947, without Burt's having paid the said or any other amount then or afterwards. On September 4, 1947, the Philippine Trust Company sold, conveyed, and delivered the Tambobong Estate to the Rural Progress Administration by an absolute deed of sale in consideration of the sum of P750,000. On February 5, 1948, the Rural Progress Administration made, under article 1504 of the Civil Code, a notarial demand upon Burt for the resolution and cancellation of his contract of purchase with the Philippine Trust Company due to his failure to pay the installment of P90,000 within the period of nine months. Subsequently the Court of First Instance of Rizal ordered the cancellation of Burt's certificate of title and the issuance of a new one in the name of the Rural Progress Administration, from which order he appealed to the Supreme Court.1 It was in the face of the antecedents sketched in the last three preceding paragraphs that the Philippine Government, through the Secretary of Justice as Chairman of the Board of Directors of the Rural Progress Administration and as Chairman of the Board of Directors of the Philippine National Bank, from which the money was borrowed, accomplished the purchase of the two estates in the latter part of October, 1949, as stated at the outset. On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows: RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG ESTATES DEAL. WHEREAS, it is reported that the Philippine government, through the Rural Progress Administration, has bought the Buenavista and the Tambobong Estates for the aggregate sum of five million pesos;

WHEREAS, it is reported that under the decision of the Supreme Court dated October 31, 1949, the Buenavista Estate could have been bought for three million pesos by virtue of a contract entered into between the San Juan de Dios Hospital and Philippine Government in 1939; WHEREAS, it is even alleged that the Philippine Government did not have to purchase the Buenavista Estate because the occupation government had made tender of payment in the amount of three million pesos, Japanese currency, which fact is believed sufficient to vest title of Ownership in the Republic of the Philippines pursuant to decisions of the Supreme Court sustaining the validity of payments made in Japanese military notes during the occupation; WHEREAS, it is reported that the Philippine Government did not have to pay a single centavo for the Tambobong Estate as it was already practically owned by virtue of a deed of sale from the Philippine Trust Company dated September 3, 194, for seven hundred and fifty thousand pesos, and by virtue of the recission of the contract through which Ernest H. Burt had an interest in the estate; Now, therefore, be it. RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five members to be appointed by the President of the Senate to investigate the Buenavista and Tambobong Estate deals. It shall be the duty of the said Committee to determine whether the said purchase was honest, valid, and proper and whether the price involved in the deal was fair and just, the parties responsible therefor, and any other facts the Committee may deem proper in the premises. Said Committee shall have the power to conduct public hearings; issue subpoena or subpoena duces tecum to compel the attendance of witnesses or the production of documents before it; and may require any official or employee of any bureau, office, branch, subdivision, agency, or instrumentality of the Government to assist or otherwise cooperate with the Special Committee in the performance of its functions and duties. Said Committee shall submit its report of findings and recommendations within two weeks from the adoption of this Resolution. The special committee created by the above resolution called and examined various witnesses, among the most important of whom was the herein petitioner, Jean L. Arnault. An intriguing question which the committee sought to resolve was that involved in the apparent unnecessariness and irregularity of the Government's paying to Burt the total sum of P1,500,000 for his alleged interest of only P20,000 in the two estates, which he seemed to have forfeited anyway long before October, 1949. The committee sought to determine who were responsible for and who benefited from the transaction at the expense of the Government. Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him on the afternoon of October 29, 1949; that on the same date he opened a new account in the name of Ernest H. Burt with the Philippine National Bank in which he deposited the two checks aggregating P1,500,000; and that on the same occasion he draw on said account two checks; one for P500,000, which he transferred to the account of the Associated Agencies, Inc., with the Philippine National Bank, and another for P440,000 payable to cash, which he himself cashed. It was the desire of the committee to determine the ultimate recipient of this sum of P440,000 that gave rise to the present case. At first the petitioner claimed before the Committee: Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the disposition of funds, I take the position that the transactions were legal, that no laws were being violated, and that all requisites had been complied with. Here also I acted in a purely functional capacity of representative. I beg to be excused from making answer which might later be used against me. I have been assured that it is my constitutional right to refuse to incriminate myself, and I am certain that the Honorable Members of this Committee, who, I understand, are lawyers, will see the justness of my position. At as subsequent session of the committee (March 16) Senator De Vera, a member of the committee, interrogated him as follows: Senator DE VERA. Now these transactions, according to your own typewritten statement, were legal? Mr. ARNAULT. I believe so. Senator DE VERA. And the disposition of that fund involved, according to your own statement, did not violate any law? Mr. ARNAULT. I believe so. xxx

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Senator DE VERA. So that if the funds were disposed of in such a manner that no laws were violated, how is it that when you were asked by the Committee to tell what steps you took to have this money delivered to Burt, you refused to answer the questions, saying that it would incriminate you? Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with other people.

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Senator DE VERA. Are you afraid to state how the money was disposed of because you would be incriminated, or you would be incriminating somebody? Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money that has been paid to me as a result of a legal transaction without having to account for any use of it. But when in the same session the chairman of the committee, Senator Sumulong, interrogated the petitioner, the latter testified as follows: The CHAIRMAN. The other check of P440,000 which you also made on October 29, 1949, is payable to cash; and upon cashing this P440,000 on October 29, 1949, what did you do with that amount? Mr. ARNAULT. I turned it over to a certain person. The CHAIRMAN. The whole amount of P440,000? Mr. ARNAULT. Yes. The CHAIRMAN. Who was that certain person to whom you delivered these P440,000 which you cashed on October 29, 1949? Mr. ARNAULT. I don't remember the name; he was a representative of Burt. The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a Filipino? Mr. ARNAULT. I don't know. The CHAIRMAN. You do not remember the name of that representative of Burt to whom you delivered this big amount of P440,000? Mr. ARNAULT. I am not sure; I do not remember the name. The CHAIRMAN. That certain person who represented Burt to whom you delivered the big amount on October 29, 1949, gave you a receipt for the amount? Mr. ARNAULT. No. The CHAIRMAN. Neither did you ask a receipt? Mr. ARNAULT. I didn't ask. The CHAIRMAN. And why did you give that certain person, representative of Burt, this big amount of P440,000 which forms part of the P1-½ million paid to Burt? Mr. ARNAULT. Because I have instructions to that effect. The CHAIRMAN. Who gave you the instruction? Mr. ARNAULT. Burt. The CHAIRMAN. Where is the instruction; was that in writing? Mr. ARNAULT. No. The CHAIRMAN. By cable? Mr. ARNAULT. No. The CHAIRMAN. In what form did you receive that instruction?

Mr. ARNAULT. Verbal instruction. The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these P440,000 to a certain person whose name you do not like to reveal? Mr. ARNAULT. I have instruction to comply with the request of the person. The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal? Mr. ARNAULT. Yes. The CHAIRMAN. When was that instruction given to you by Burt? Mr. ARNAULT. Long time ago. The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was still here in the Philippines? Mr. ARNAULT. Yes. The CHAIRMAN. But at that time Burt already knew that he would receive the money? Mr. ARNAULT. No. The CHAIRMAN. In what year was that when Burt while he was here in the Philippines gave you the verbal instruction? Mr. ARNAULT. In 1946. The CHAIRMAN. And what has that certain person done for Burt to merit receiving these P440,000? Mr. ARNAULT. I absolutely do not know. The CHAIRMAN. You do not know? Mr. ARNAULT. I do not know. The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that certain person should receive these P440,000? Mr. ARNAULT. He did not tell me. The CHAIRMAN. And Burt also authorized you to give this big amount to that certain person without receipt? Mr. ARNAULT. He told me that a certain person would represent him and where could I meet him. The CHAIRMAN. Did Burt know already that certain person as early as 1946? Mr. ARNAULT. I presume much before that. The CHAIRMAN. Did that certain person have any intervention in the prosecution of the two cases involving the Buenavista and Tambobong estates? Mr. ARNAULT. Not that I know of. The CHAIRMAN. Is that certain person related to any high government official? Mr. ARNAULT. No, I do not know. The CHAIRMAN. Why can you not tell us the name of that certain person?

Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name. The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949, you knew already that person? Mr. ARNAULT. Yes, I have seen him several times. The CHAIRMAN. And the name of that certain person is a Filipino name? Mr. ARNAULT. I would say Spanish name. The CHAIRMAN. And how about his Christian name; is it also a Spanish name? Mr. ARNAULT. I am not sure; I think the initial is J. The CHAIRMAN. Did he have a middle name? Mr. ARNAULT. I never knew it. The CHAIRMAN. And how about his family name which according to your recollection is Spanish; can you remember the first letter with which that family name begins? Mr. ARNAULT. S, D or F. The CHAIRMAN. And what was the last letter of the family name? Mr. ARNAULT. I do not know. The CHAIRMAN. Have you seen that person again after you have delivered this P440,000? Mr. ARNAULT. Yes. The CHAIRMAN. Several times? Mr. ARNAULT. Two or three times. The CHAIRMAN. Here in Manila? Mr. ARNAULT. Yes. The CHAIRMAN. And in spite of the fact that you met that person two or three times, you never were able to find out what was his name? Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of course, we have not done business. Lots of people in Manila know me, but they don't know my name, and I don't know them. They sa{ I am "chiflado" because I don't know their names. The CHAIRMAN. That certain person is a male or female? Mr. ARNAULT. He is a male. The CHAIRMAN. You are sure that he is a male at least? Mr. ARNAULT. Let us say 38 or 40 years, more or less. The CHAIRMAN. Can you give us, more or less, a description of that certain person? What is his complexion: light, dark or light brown? Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but smaller. He walks very straight, with military bearing.

The CHAIRMAN. Do you know the residence of that certain person to whom you gave the P440,000? Mr. ARNAULT. No. The CHAIRMAN. During these frequent times that you met that certain person, you never came to know his residence? Mr. ARNAULT. No, because he was coming to the office. The CHAIRMAN. How tall is that certain person? Mr. ARNAULT. Between 5-2 and 5-6. On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and read to him the following resolution: Be it resolved by the Senate of the Philippines in Session assembled: That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting of contumacious acts committed by him during the investigation conducted by the Special Committee created by Senate Resolution No. 8 to probe the Tambobong and Buenavista estates deal of October 21, 1949, and that the President of the Senate propounded to him the following interrogatories: 1. What excuse have you for persistently refusing to reveal the name of the person to whom you gave the P440,000 on October 29, 1949, a person whose name it is impossible for you not to remember not only because of the big amount of money you gave to him without receipt, but also by your own statements you knew him as early as 1946 when General Ernest H. Burt was still in the Philippines, you made two other deliveries of money to him without receipt, and the last time you saw him was in December 1949? Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that the questions were incriminatory in nature and begging leave to be allowed to stand on his constitutional right not to be compelled to be a witness against himself. Not satisfied with that written answer Senator Sumulong, over the objection of counsel for the petitioner, propounded to the latter the following question: Sen. SUMULONG. During the investigation, when the Committee asked you for the name of that person to whom you gave the P440,000, you said that you can [could] not remember his name. That was the reason then for refusing to reveal the name of the person. Now, in the answer that you have just cited, you are refusing to reveal the name of that person to whom you gave the P440,000 on the ground that your answer will be self-incriminating. Now, do I understand from you that you are abandoning your former claim that you cannot remember the name of that person, and that your reason now for your refusal to reveal the name of that person is that your answer might be self-incriminating? In other words, the question is this: What is your real reason for refusing to reveal the name of that person to whom you gave the P440,000: that you do not remember his name or that your answer would be self-incriminating? xxx

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Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the accused should not be required to testify unless he so desires. The PRESIDENT. It is the duty of the respondent to answer the question. The question is very clear. It does not incriminate him. xxx

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Mr. ARNAULT. I stand by every statement that I have made before the Senate Committee on the first, second, and third hearings to which I was made in my letter to this Senate of May 2, 1950, in which I gave all the reasons that were in my powers to give, as requested. I cannot change anything in those statements that I made because they represent the best that I can do , to the best of my ability. The PRESIDENT. You are not answering the question. The answer has nothing to do with the question. Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you gave during the investigation for not revealing the name of the person to whom you gave the P440,000 is not the same reason that you are now alleging because during the investigation you told us: "I do not remember his name." But, now, you are now saying: "My answer might incriminate me." What is your real position?

Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first, second, and third hearings. I said that I wanted to be excused from answering the question. I beg to be excused from making any answer that might be incriminating in nature. However, in this answer, if the detail of not remembering the name of the person has not been included, it is an oversight. Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you remember or not the name of the person to whom you gave the P440,000? Mr. ARNAULT. I do not remember . Sen. SUMULONG. Now, if you do not remember the name of that person, how can you say that your answer might be incriminating? If you do not remember his name, you cannot answer the question; so how could your answer be self-incriminating? What do you say to that? Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to answer those questions. That is why I asked for a lawyer, so he can help me. I have no means of knowing what the situation is about. I have been in jail 13 days without communication with the outside. How could I answer the question? I have no knowledge of legal procedure or rule, of which I am completely ignorant. xxx

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Sen. SUMULONG. Mr. President, I ask that the question be answered. The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does not incriminate the witness. xxx

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Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be excused from making further answer, please. Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President of the Senate, dated May 2, 1950, you stated there that you cannot reveal the name of the person to whom you gave the P440,000 because if he is a public official you might render yourself liable for prosecution for bribery, and that if he is a private individual you might render yourself liable for prosecution for slander. Why did you make those statements when you cannot even tell us whether that person to whom you gave the P440,000 is a public official or a private individual ? We are giving you this chance to convince the Senate that all these allegations of yours that your answers might incriminate you are given by you honestly or you are just trying to make a pretext for not revealing the information desired by the Senate. The PRESIDENT. You are ordered to answer the question. Mr. ARNAULT. I do not even understand the question. (The question is restated and explained.) Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it. That is all I can say how I stand about this letter. I have no knowledge myself enough to write such a letter, so I had to secure the help of a lawyer to help me in my period of distress. In that same session of the Senate before which the petitioner was called to show cause why he should not be adjudged guilty of contempt of the Senate, Senator Sumulong propounded to the petitioner questions tending to elicit information from him as to the identity of the person to whom he delivered the P440,000; but the petitioner refused to reveal it by saying that he did not remember. The President of the Senate then propounded to him various questions concerning his past activities dating as far back as when witness was seven years of age and ending as recently as the post liberation period, all of which questions the witness answered satisfactorily. In view thereof, the President of the Senate also made an attempt to illicit the desired information from the witness, as follows: The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you deliver the P440,000 as a gift, or of any consideration? Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all. The PRESIDENT. Was it the first time you saw that person? Mr. ARNAULT. I saw him various times, I have already said.

The PRESIDENT. In spite of that, you do not have the least remembrance of the name of that person? Mr. ARNAULT. I cannot remember. The PRESIDENT. How is it that you do not remember events that happened a short time ago and, on the other hand, you remember events that occurred during your childhood? Mr. ARNAULT. I cannot explain. The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted whereby the petitioner was committed to the custody of the Sergeant-at-Arms and imprisoned until "he shall have purged the contempt by revealing to the Senate or to the aforesaid Special Committee the name of the person to whom he gave the P440,000, as well as answer other pertinent questions in connection therewith." The Senate also adopted on the same date another resolution (No. 16) , to wit: That the Special Committee created by Senate Resolution No. 8 be empowered and directed to continue its investigation of the Tambobong and Buenavista Estates deal of October 21, 1949, more particularly to continue the examination of Jean L. Arnault regarding the name of the person to whom he gave the P440,000 and other matters related therewith. The first session of the Second Congress was adjourned at midnight on May 18, 1950. The case was argued twice before us. We have given its earnest and prolonged consideration because it is the first of its kind to arise since the Constitution of the Republic of the Philippines was adopted. For the first time this Court is called upon to define the power of either House of Congress to punish a person not a member for contempt; and we are fully conscious that our pronouncements here will set an important precedent for the future guidance of all concerned. Before discussing the specific issues raised by the parties, we deem it necessary to lay down the general principles of law which form the background of those issues. Patterned after the American system, our Constitution vests the powers of the Government in three independent but coordinate Departments — Legislative, Executive, and Judicial. The legislative power is vested in the Congress, which consists of the Senate and the House of Representatives. (Section 1, Article VI.) Each house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, expel a Member. (Section 10, Article VI.) The judicial power is vested in the Supreme Court and in such inferior courts as may be established by law. (Section 1, Article VIII.) Like the Constitution of the United States, ours does not contain an express provision empowering either of the two Houses of Congress to punish nonmembers for contempt. It may also be noted that whereas in the United States the legislative power is shared by and between the Congress of the United States, on the one hand, and the respective legislatures of the different States, on the other — the powers not delegated to the United States by the Constitution nor prohibited by it to States being reserved to the States, respectively, or to the people — in the Philippines, the legislative power is vested in the Congress of the Philippines alone. It may therefore be said that the Congress of the Philippines has a wider range of legislative field than the Congress of the United States or any State Legislature. Our form of Government being patterned after the American system — the framers of our Constitution having drawn largely from American institutions and practices — we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past. Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions as to be implied. In other words, the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to effect or change; and where the legislative body does not itself possess the requisite information — which is not infrequently true — recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. (McGrain vs.Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the Constitution expressly gives to Congress the power to punish its Members for disorderly behavior, does not by necessary implication exclude the power to punish for contempt any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.) But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.). Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than either the Congress of the United States or a State Legislature, we think it is correct to say that the field of inquiry into which it may enter is also wider. It would be difficult to define any limits by which the subject matter of its inquiry can be bounded. It is not necessary to do so in this case. Suffice it to say that it must be coextensive with the range of the legislative power. In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to investigate the Buenavista and Tambobong Estates deal is not challenged by the petitioner; and we entertain no doubt as to the Senate's authority to do so and as to the validity of Resolution No. 8 hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and irregular expenditure of no less

than P5,000,000 of public funds, of which Congress is the constitutional guardian. It also involved government agencies created by Congress to regulate or even abolish. As a result of the yet uncompleted investigation, the investigating committee has recommended and the Senate approved three bills (1) prohibiting the Secretary of Justice or any other department head from discharging functions and exercising powers other than those attached to his own office, without ]previous congressional authorization; (2) prohibiting brothers and near relatives of any President of the Philippines from intervening directly or indirectly and in whatever capacity in transactions in which the Government is a party, more particularly where the decision lies in the hands of executive or administrative officers who are appointees of the President; and (3) providing that purchases of the Rural Progress Administration of big landed estates at a price of P100,000 or more, shall not become effective without previous congressional confirmation.2 We shall now consider and pass upon each of the questions raised by the petitioner in support of his contention that his commitment is unlawful. First He contends that the Senate has no power to punish him for contempt for refusing to reveal the name of the person to whom he gave the P440,000, because such information is immaterial to, and will not serve, any intended or purported legislation and his refusal to answer the question has not embarrassed, obstructed, or impeded the legislative process. It is argued that since the investigating committee has already rendered its report and has made all its recommendations as to what legislative measures should be taken pursuant to its findings, there is no necessity to force the petitioner to give the information desired other than that mentioned in its report, to wit: "In justice to Judge Quirino and to Secretary Nepomuceno, this atmosphere of suspicion that now pervades the public mind must be dissipated, and it can only be done if appropriate steps are taken by the Senate to compel Arnault to stop pretending that he cannot remember the name of the person to whom he gave the P440,000 and answer the questions which will definitely establish the identity of that person . . ." Senator Sumulong, Chairman of the Committee, who appeared and argued the case for the respondents, denied that that was the only purpose of the Senate in seeking the information from the witness. He said that the investigation had not been completed, because, due to the contumacy of the witness, his committee had not yet determined the parties responsible for the anomalous transaction as required by Resolution No. 8; that, by Resolution No. 16, his committee was empowered and directed to continue its investigation, more particularly to continue its examination of the witness regarding the name of the person to whom he gave the P440,000 and other matters related therewith; that the bills recommended by his committee had not been approved by the House and might not be approved pending the completion of the investigation; and that those bills were not necessarily all the measures that Congress might deem it necessary to pass after the investigation is finished. Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of course to his constitutional right against selfincrimination. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer must be material or pertinent to the subject of the inquiry or investigation. So a witness may not be coerced to answer a question that obviously has no relation to the subject of the inquiry. But from this it does not follow that every question that may be propounded to a witness must be material to any proposed or possible legislation. In other words, the materiality of the question must be determined by its direct relation to any proposed or possible legislation. The reason is, that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. In this connection, it is suggested by counsel for the respondents that the power of the Court is limited to determining whether the legislative body has jurisdiction to institute the inquiry or investigation; that once that jurisdiction is conceded, this Court cannot control the exercise of that jurisdiction; and it is insinuated, that the ruling of the Senate on the materiality of the question propounded to the witness is not subject to review by this Court under the principle of the separation of powers. We have to qualify this proposition. As was said by the Court of Appeals of New York: "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (People ex rel.McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the Supreme Court of the United States in the said case of McGrain vs. Daugherty, it is necessary deduction from the decision in Re Chapman, 41 L. ed., 1154, that where the questions are not pertinent to the matter under inquiry a witness rightfully may refuse to answer. So we are of the opinion that where the alleged immateriality of the information sought by the legislative body from a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass upon the contention. The fact that the legislative body has jurisdiction or the power to make the inquiry would not preclude judicial intervention to correct a clear abuse of discretion in the exercise of that power. Applying the criterion laid down in the last two preceding paragraphs to the resolution of the issue under consideration, we find that the question for the refusal to answer which the petitioner was held in contempt by the Senate is pertinent to the matter under inquiry. In fact, this is not and cannot be disputed. Senate Resolution No. 8, the validity of which is not challenged by the petitioner, requires the Special Committee, among other things, to determine the parties responsible for the Buenavista and Tambobong estates deal, and it is obvious that the name of the person to whom the witness gave the P440,000 involved in said deal is pertinent to that determination — it is in fact the very thing sought to be determined. The contention is not that the question is impertinent to the subject of the inquiry but that it has no relation or materiality to any proposed legislation. We have already indicated that it is not necessary for the legislative body to show that every question propounded to a witness is material to any proposed or possible legislation; what is required is that is that it be pertinent to the matter under inquiry.

It is said that the Senate has already approved the three bills recommended by the Committee as a result of the uncompleted investigation and that there is no need for it to know the name of the person to whom the witness gave the P440,000. But aside from the fact that those bills have not yet been approved by the lower house and by the President and that they may be withdrawn or modified if after the inquiry is completed they should be found unnecessary or inadequate, there is nothing to prevent the Congress from approving other measures it may deem necessary after completing the investigation. We are not called upon, nor is it within our province, to determine or imagine what those measures may be. And our inability to do so is no reason for overruling the question propounded by the Senate to the witness. The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The inquiry there in question was conducted under a resolution of the Senate and related to charges, published in the press, that senators were yielding to corrupt influences in considering a tariff bill then before the Senate and were speculating in stocks the value of which would be affected by pending amendments to the bill. Chapman, a member of a firm of stock brokers dealing in the stock of the American Sugar Refining Company, appeared before the committee in response to a subpoena and asked, among others, the following questions: Had the firm, during the month of March, 1894, bought or sold any stock or securities, known as sugar stocks, for or in the interest, directly or indirectly, of any United Senate senator? Was the said firm at that time carrying any sugar stock for the benefit of, or in the interest, directly or indirectly, of any United Senate senator? He refused to answer the questions and was prosecuted under an Act of Congress for contempt of the Senate. Upon being convicted and sent to jail he petitioned the Supreme Court of the United States for a writ of habeas corpus. One of the questions decided by the Supreme Court of the United States in that case was whether the committee had the right to compel the witness to answer said questions, and the Court held that the committee did have such right, saying: The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolution directed the committee to inquire whether any senator has been, or is, speculating in what are known as sugar stocks during the consideration of the tariff bill now before the Senate." What the Senate might or might not do upon the facts when ascertained, we cannot say, nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations, while affirmative answers might have led to further action on the part of the Senate within its constitutional powers. (Emphasis supplied.) It may be contended that the determination of the parties responsible for the deal is incumbent upon the judicial rather than upon the legislative branch. But we think there is no basis in fact or in law for such assumption. The petitioner has not challenged the validity of Senate Resolution No. 8, and that resolution expressly requires the committee to determine the parties responsible for the deal. We are bound to presume that the Senate has acted in the due performance of its constitutional function in instituting the inquiry, if the act is capable of being so construed. On the other hand, there is no suggestion that the judiciary has instituted an inquiry to determine the parties responsible for the deal. Under the circumstances of the case, it appearing that the questioned transaction was affected by the head of the Department of Justice himself, it is not reasonable to expect that the Fiscal or the Court of First Instance of Manila will take the initiative to investigate and prosecute the parties responsible for the deal until and unless the Senate shall determined those parties are and shall taken such measures as may be within its competence to take the redress the wrong that may have been committed against the people as a result of the transaction. As we have said, the transaction involved no less than P5,000,000 of public funds. That certainly is a matter of a public concern which it is the duty of the constitutional guardian of the treasury to investigate. If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its process may be enforced by the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40 Ann. Cas. [1916 B.], 1115.) The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner, is not applicable here. In that case the inquiry instituted by the House of Representatives of the United States related to a private real-estate pool or partnership in the District of Columbia. Jay Cook and Company had had an interest in the pool but become bankrupts, and their estate was in course of administration in a federal bankruptcy court in Pennsylvania. The United States was one of their creditors. The trustee in the bankruptcy proceeding had effected a settlement of the bankrupts' interest in the pool, and of course his action was subject to examination and approval or disapproval by the bankruptcy court. Some of the creditors, including the United States, were dissatisfied with the settlement. The resolution of the House directed the Committee "to inquire into the nature and history of said real-estate pool and the character of said settlement, with the amount of property involve, in which Jay Cooke and Co. were interested, and the amount paid or to be paid in said settlement, with power to send for persons and papers, and report to this House." The Supreme Court of the United States, speaking thru Mr. Justice Miller, pointed out that the resolution contained no suggestion of contemplated legislation; that the matter was one in respect of which no valid legislation could be had; that the bankrupts' estate and the trustee's settlement were still pending in the bankruptcy court; and that the United States and other creditors were free to press their claims in that proceeding. And on these grounds the court held that in undertaking the investigation "the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because the power was in its nature clearly judicial." The principles announced and applied in that case are: that neither House of Congress possesses a "general power of making inquiry into the private affairs of the citizen"; that the power actually possessed is limited to inquires relating to matters of which the particular House has jurisdiction, and in respect of which it rightfully may

take other action; that if the inquiry relates to a matter wherein relief or redress could be had only by judicial proceeding, it is not within the range of this power , but must be left to the court, conformably to the constitutional separation of government powers. That case differs from the present case in two important respects: (1) There the court found that the subject of the inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of either House of Congress; while here if it is not disputed that the subject of the inquiry, which relates to a transaction involving a questionable expenditure by the Government of P5,000,000 of public funds, is within the jurisdiction of the Senate, (2) There the claim of the Government as a creditor of Jay Cooke and Company, which had had an interest in the pool, was pending adjudication by the court; while here the interposition of the judicial power on the subject of the inquiry cannot be expected, as we have pointed out above, until after the Senate shall have determined who the parties responsible are and shall have taken such measures as may be within its competence to take to redress the wrong that may have been committed against the people as a result of the transaction. It is interesting to note that the decision in the case of Killbourn vs. Thompson has evoked strong criticisms from legal scholars. (See Potts, Power of Legislative Bodies to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land is, Constitutional Limitations on the Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We quoted the following from Professor Land is' criticism: "Mr. Justice Miller saw the case purely as an attempt by the House to secure to the Government certain priority rights as creditor of the bankrupt concern. To him it assumed the character of a lawsuit between the Government and Jay Cooke and Co., with the Government, acting through the House, attempting to override the orderliness of established procedure and thereby prefer a creditors' bill not before the courts but before Congress. That bankruptcy proceedings had already been instituted against Jay Cooke and Co., in a federal court gave added impetus to such a conception. The House was seeking to oust a court of prior acquired jurisdiction by an extraordinary and unwarranted assumption of "judicial power"! The broader aspect of the investigation had not been disclosed to the Court. That Jay Cooke and Co.'s indebtedness and the particular funds in question were only part of the great administrative problem connected with the use and disposition of public monies, that the particular failure was of consequence mainly in relation to the security demanded for all government deposits, that the facts connected with one such default revealed the possibility of other and greater maladministration, such considerations had not been put before the Court. Nor had it been acquainted with the every-day nature of the particular investigation and the powers there exerted by the House, powers whose exercise was customary and familiar in legislative practice. Instead of assuming the character of an extraordinary judicial proceeding, the inquiry, place in its proper background, should have been regarded as a normal and customary part of the legislative process. Detailed definiteness of legislative purpose was thus made the demand of the court in Killbourn vs. Thompson. But investigators cannot foretell the results that may be achieved. The power of Congress to exercise control over a real-estate pool is not a matter for abstract speculation but one to be determined only after an exhaustive examination of the problem. Relationship, and not their possibilities, determine the extent of congressional power. Constitutionality depends upon such disclosures. Their presence, whether determinative of legislative or judicial power, cannot be relegated to guesswork. Neither Congress nor the Court can predict, prior to the event, the result of the investigation." The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881. The question there was whether the House of Representatives exceeded its power in punishing, as for contempt of its authority, the District Attorney of the Southern District of New York, who had written, published, and sent to the chairman of one of its committees an ill-tempered and irritating letter respecting the action and purposes of the committee in interfering with the investigation by the grand jury of alleged illegal activities of a member of the House of Representatives. Power to make inquires and obtain evidence by compulsory process was not involved. The court recognized distinctly that the House of Representatives had implied power to punish a person not a member for contempt, but held that its action in this instance was without constitutional justification. The decision was put on the ground that the letter, while offensive and vexatious, was not calculated or likely to affect the House in any of its proceedings or in the exercise of any of its functions. This brief statement of the facts and the issues decided in that case is sufficient to show the inapplicability thereof to the present case. There the contempt involved consisted in the district attorney's writing to the chairman of the committee an offensive and vexatious letter, while here the contempt involved consists in the refusal of the witness to answer questions pertinent to the subject of an inquiry which the Senate has the power and jurisdiction to make . But in that case, it was recognized that the House of Representatives has implied power to punish a person not a member of contempt. In that respect the case is applicable here in favor of the Senate's (and not of the Petitioner's ) contention. Second. It is next contended for the petitioner that the Senate lacks authority to commit him for contempt for a term beyond its period of legislative session, which ended on May 18, 1950. This contention is based on the opinion of Mr. Justice Malcolm, concurred in by Justices Street and Villa-Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it appears that on October 23, 1929, Candido Lopez assaulted a member of the House of Representatives while the latter was going to the hall of the House of Representatives to attend the session which was then about to begin, as a result of which assault said representative was unable to attend the sessions on that day and those of the two days next following by reason of the threats which Candido Lopez made against him. By the resolution of the House adopted November 6, 1929, Lopez was declared guilty of contempt of the House of Representatives and ordered punished by confinement in Bilibid Prison for a period of twenty-four hours. That resolution was not complied with because the session of the House of Representatives adjourned at midnight on November 8, 1929, and was reiterated at the next session on September 16, 1930. Lopez was subsequently arrested, whereupon he applied for the writ of habeas corpus in the Court of First Instance of Manila, which denied the application. Upon appeal to the Supreme Court, six justices voted to grant the writ: Justice Malcolm, Street, and Villa-real, on the ground that the term of imprisonment meted out to the petitioner could not legally be extended beyond the session of the body in which the contempt occurred; and Justices Johns, Villamor, and Ostrand, on the ground that the Philippine Legislature had no power to punish for contempt because it was a creature merely of an Act of the Congress of the United States and not of a Constitution adopted by the people. Chief Justice Avanceña, Justice Johnson, and Justice Romualdez wrote separate opinions, concurring with Justice Malcolm, Street, and Villa-Real, that the Legislature had inherent power

to punish for contempt but dissenting from the opinion that the order of commitment could only be executed during the particular session in which the act of contempt was committed. Thus, on the question under consideration, the Court was equally divided and no decisive pronouncement was made. The opinion of Mr. Justice Malcolm is based mainly on the following passage in the case of Anderson vs.Dunn, supra: And although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolution. It follows that imprisonment must terminate with that adjournment. as well as on the following quotation from Marshall vs. Gordon, supra: And the essential nature of the power also makes clear the cogency and application of the two limitations which were expressly pointed out in Anderson vs. Dunn, supra, that is, that the power even when applied to subjects which justified its exercise is limited to imprisonment and such imprisonment may not be extended beyond the session of the body in which the contempt occurred. Interpreting the above quotations, Chief Justice Avanceña held: From this doctrine it follows, in my judgement, that the imposition of the penalty is limited to the existence of the legislative body, which ceases to function upon its final periodical dissolution. The doctrine refers to its existence and not to any particular session thereof. This must be so, inasmuch as the basis of the power to impose such penalty is the right which the Legislature has to selfpreservation, and which right is enforceable during the existence of the legislative body. Many causes might be conceived to constitute contempt to the Legislature, which would continue to be a menace to its preservation during the existence of the legislative body against which contempt was committed. If the basis of the power of the legislature to punish for contempt exists while the legislative body exercising it is in session, then that power and the exercise thereof must perforce continue until the final adjournment and the election of its successor. Mr. Justice Johnson's more elaborate opinion, supported by quotations from Cooley's Constitutional Limitations and from Jefferson's Manual, is to the same effect. Mr. Justice Romualdez said: "In my opinion, where as in the case before us, the members composing the legislative body against which the contempt was committed have not yet completed their three-year term, the House may take action against the petitioner herein." We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by Justice Malcolm are obiter dicta. Anderson vs. Dunn was an action of trespass against the Sergeant-at-Arms of the House of Representatives of the United States for assault and battery and false imprisonment. The plaintiff had been arrested for contempt of the House, brought before the bar of the House, and reprimanded by the Speaker, and then discharged from custody. The question as to the duration of the penalty was not involved in that case. The question there was "whether the House of Representatives can take cognizance of contempt committed against themselves, under any circumstances." The court there held that the House of Representatives had the power to punish for contempt, and affirmed the judgment of the lower court in favor of the defendant. In Marshall vs. Gordon, the question presented was whether the House had the power under the Constitution to deal with the conduct of the district attorney in writing a vexatious letter as a contempt of its authority, and to inflict punishment upon the writer for such contempt as a matter of legislative power. The court held that the House had no such power because the writing of the letter did not obstruct the performance of legislative duty and did not endanger the preservation of the power of the House to carry out its legislative authority. Upon that ground alone, and not because the House had adjourned, the court ordered the discharge of the petitioner from custody. The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it appears that the Senate had adopted a resolution authorizing and directing a select committee of five senators to investigate various charges of misfeasance and nonfeasance in the Department of Justice after Attorney General Harry M. Daugherty became its supervising head. In the course of the investigation the committee caused to be served on Mally S. Daugherty, brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court House, Ohio, a subpoena commanding him to appear before it for the purpose of giving testimony relating to the subject under consideration. The witness failed to appear without offering any excuse for his failure. The committee reported the matter to the Senate and the latter adopted a resolution, "That the President of the Senate pro tempore issue his warrant commanding the Sergeant-at-Arms or his deputy to take into custody the body of the said M.S. Daugherty wherever found, and to bring the said M.S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent to the matter under inquiry as the Senate may order the President of the Senate pro tempore to propound; and to keep the said M.S. Daugherty in custody to await the further order of the Senate." Upon being arrested, the witness petitioned the federal court in Cincinnati for a writ of habeas corpus. The federal court granted the writ and discharged the witness on the ground that the Senate, in directing the investigation and in ordering the arrest, exceeded its power under the Constitution. Upon appeal to the Supreme Court of the United States, one of the contentions of the witness was that the case ha become moot because the investigation was ordered and the committee was appointed during the Sixty-eighth Congress, which expired on March 4, 1926. In overruling the contention, the court said:

. . . The resolution ordering the investigation in terms limited the committee's authority to the period of the Sixty-eighth Congress; but this apparently was changed by a later and amendatory resolution authorizing the committee to sit at such times and places as it might deem advisable or necessary. It is said in Jefferson's Manual: "Neither House can continue any portion of itself in any parliamentary function beyond the end of the session without the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular purpose." But the context shows that the reference is to the two houses of Parliament when adjourned by prorogation or dissolution by the King. The rule may be the same with the House of Representatives whose members are all elected for the period of a single Congress: but it cannot well be the same with the Senate, which is a continuing body whose members are elected for a term of six years and so divided into classes that the seats of one third only become vacant at the end of each Congress, two thirds always continuing into the next Congress, save as vacancies may occur through death or resignation. Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may continue its committees through the recess following the expiration of a Congress;" and, after quoting the above statement from Jefferson's Manual, he says: "The Senate, however being a continuing body, gives authority to its committees during the recess after the expiration of a Congress." So far as we are advised the select committee having this investigation in charge has neither made a final report nor been discharged; nor has been continued by an affirmative order. Apparently its activities have been suspended pending the decision of this case. But, be this as it may, it is certain that the committee may be continued or revived now by motion to that effect, and if, continued or revived, will have all its original powers. This being so, and the Senate being a continuing body, the case cannot be said to have become moot in the ordinary sense. The situation is measurably like that in Southern P. Terminal Co. vs. Interstate Commerce Commission, 219 U. S., 498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the enforcement of an order of the Interstate Commerce Commission did not become moot through the expiration of the order where it was capable of repetition by the Commission and was a matter of public interest. Our judgment may yet be carried into effect and the investigation proceeded with from the point at which it apparently was interrupted by reason of the habeas corpus proceedings. In these circumstances we think a judgment should be rendered as was done in the case cited. What has been said requires that the final order in the District Court discharging the witness from custody be reversed. Like the Senate of the United States , the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation. Members of the House of Representatives are all elected for a term of four years; so that the term of every Congress is four years. The Second Congress of the Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The resolution of the Senate committing the Petitioner was adopted during the first session of the Second Congress, which began on the fourth Monday of January and ended in May 18, 1950. Had said resolution of commitment been adopted by the House of Representatives, we think it could be enforced until the final adjournment of the last session of the Second Congress in 1953. We find no sound reason to limit the power of the legislative body to punish for contempt to the end of every session and not to the end of the last session terminating the existence of that body. The very reason for the exercise of the power to punish for contempt is to enable the legislative body to perform its constitutional function without impediment or obstruction. Legislative functions may be and in practice are performed during recess by duly constituted committees charged with the duty of performing investigations or conducting hearing relative to any proposed legislation. To deny to such committees the power of inquiry with process to enforce it would be to defeat the very purpose for which that the power is recognized in the legislative body as an essential and appropriate auxiliary to is legislative function. It is but logical to say that the power of self-preservation is coexistent with the life to be preserved. But the resolution of commitment here in question was adopted by the Senate, which is a continuing body and which does not cease exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no limit as to time to the Senate's power to punish for contempt in cases where that power may constitutionally be exerted as in the present case. Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The Senate has ordered an investigation of the Buenavista and Tambobong estates deal, which we have found it is within its competence to make. That investigation has not been completed because of the refusal of the petitioner as a witness to answer certain questions pertinent to the subject of the inquiry. The Senate has empowered the committee to continue the investigation during the recess. By refusing to answer the questions, the witness has obstructed the performance by the Senate of its legislative function, and the Senate has the power to remove the obstruction by compelling the witness to answer the questions thru restraint of his liberty until he shall have answered them. That power subsists as long as the Senate, which is a continuing body, persists in performing the particular legislative function involved. To hold that it may punish the witness for contempt only during the session in which investigation was begun, would be to recognize the right of the Senate to perform its function but at the same time to deny to it an essential and appropriate means for its performance. Aside from this, if we should hold that the power to punish for contempt terminates upon the adjournment of the session, the Senate would have to resume the investigation at the next and succeeding sessions and repeat the contempt proceedings against the witness until the investigation is completed-an absurd, unnecessary, and vexatious procedure, which should be avoided. As against the foregoing conclusion it is argued for the petitioner that the power may be abusively and oppressively exerted by the Senate which might keep the witness in prison for life. But we must assume that the Senate will not be disposed to exert the power beyond its proper

bounds. And if, contrary to this assumption, proper limitations are disregarded, the portals of this Court are always open to those whose rights might thus be transgressed. Third. Lastly, the petitioner invokes the privilege against self-incrimination. He contends that he would incriminate himself if he should reveal the name of the person to whom he gave the P440,000 if that person be a public official be (witness) might be accused of bribery, and if that person be a private individual the latter might accuse him of oral defamation. The ground upon which the witness' claim is based is too shaky, in firm, and slippery to afford him safety. At first he told the Committee that the transactions were legal, that no laws were violated, and that all requisites had been replied with; but at the time he begged to be excused from making answers "which might later be used against me." A little later he explained that although the transactions were legal he refused to answer questions concerning them "because it violates the right of a citizen to privacy in his dealings with other people . . . I simply stand on my privilege to dispose of the money that has been paid to me as a result of a legal transaction without having to account for the use of it." But after being apparently convinced by the Committee that his position was untenable, the witness testified that, without securing any receipt, he turned over the P440,000 to a certain person, a representative of Burt, in compliance with Burt's verbal instruction made in 1946; that as far as he know, that certain person had nothing to do with the negotiations for the settlement of the Buenavista and Tambobong cases; that he had seen that person several times before he gave him the P440,000 on October 29, 1949, and that since then he had seen him again two or three times, the last time being in December, 1949, in Manila; that the person was a male, 39 to 40 years of age, between 5 feet, 2 inches and 5 feet, 6 inches in height. Butt the witness would not reveal the name of that person on these pretexts: " I don't remember the name; he was a representative of Burt." "I am not sure; I don't remember the name." We are satisfied that those answers of the witness to the important question, what is the name of that person to whom you gave the P440,000? were obviously false. His insistent claim before the bar of the Senate that if he should reveal the name he would incriminate himself, necessarily implied that he knew the name. Moreover, it is unbelievable that he gave the P440,000 to a person to him unknown. "Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt, assuming that a refusal to testify would be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the case of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was called to testify before a grand jury engaged in investigating a charge of gambling against six other men. After stating that he was sitting at a table with said men when they were arrested, he refused to answer two questions, claiming so to do might tend to incriminate him: (1) "Was there a game of cards being played on this particular evening at the table at which you are sitting?" (2) "Was there a game of cards being played at another table at this time?" The foreman of the grand jury reported the matter to the judge, who ruled "that each and all of said questions are proper and that the answers thereto would not tend to incriminate the witness." Mason was again called and refused to answer the first question propounded to him, but, half yielding to frustration, he said in response to the second question: "I don't know." In affirming the conviction for contempt, the Supreme Court of the United States among other things said: In the present case, the witness certainly were not relieved from answering merely because they declared that so to do might incriminate them. The wisdom of the rule in this regard is well illustrated by the enforced answer, "I don't know ," given by Mason to the second question, after he had refused to reply under a claim of constitutional privilege. Since according to the witness himself the transaction was legal, and that he gave the P440,000 to a representative of Burt in compliance with the latter's verbal instruction, we find no basis upon which to sustain his claim that to reveal the name of that person might incriminate him. There is no conflict of authorities on the applicable rule, to wit: Generally, the question whether testimony is privileged is for the determination of the Court. At least, it is not enough for the witness to say that the answer will incriminate him. as he is not the sole judge of his liability. The danger of self-incrimination must appear reasonable and real to the court, from all the circumstances, and from the whole case, as well as from his general conception of the relations of the witness. Upon the facts thus developed, it is the province of the court to determine whether a direct answer to a question may criminate or not. . . . The fact that the testimony of a witness may tend to show that he has violated the law is not sufficient to entitle him to claim the protection of the constitutional provision against self-incrimination, unless he is at the same time liable to prosecution and punishment for such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for protection against an imaginary danger, or to secure immunity to a third person. ( 3 Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.) It is the province of the trial judge to determine from all the facts and circumstances of the case whether the witness is justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. App., 1939].) A witness is not relieved from answering merely on his own declaration that an answer might incriminate him, but rather it is for the trial judge to decide that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.) As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty as a citizen to give frank, sincere, and truthful testimony before a competent authority. The state has the right to exact fulfillment of a citizen's obligation, consistent of course with his right under the Constitution. The witness in this case has been vociferous and militant in claiming constitutional rights and privileges but patently recreant to his duties and obligations to the Government which protects those rights under the law. When a specific right and a specific obligation conflict with each other, and one is doubtful or uncertain while the other is clear and imperative, the former must give

way to the latter. The right to life is one of the most sacred that the citizen may claim, and yet the state may deprive him of it if he violates his corresponding obligation to respect the life of others. As Mr. Justice Johnson said in Anderson vs. Dunn: "The wretch beneath the gallows may repine at the fate which awaits him, and yet it is not certain that the laws under which he suffers were made for the security." Paraphrasing and applying that pronouncement here, the petitioner may not relish the restraint of his liberty pending the fulfillment by him of his duty, but it is no less certain that the laws under which his liberty is restrained were made for his welfare. From all the foregoing, it follows that the petition must be denied, and it is so ordered, with costs. Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.

Separate Opinions TUASON, J., dissenting: The estates deal which gave the petitioner's examination by a committee of the Senate was one that aroused popular indignation as few cases of graft and corruption have. The investigation was greeted with spontaneous outburst of applause by an outraged citizenry, and the Senate was rightly commended for making the lead in getting at the bottom of an infamous transaction. All the more necessary it is that we should approach the consideration of this case with circumspection, lest the influence of strong public passions should get the batter of our judgment. It is trite to say that public sentiment fades into insignificance before a proper observance of constitutional processes, the maintenance of the constitutional structure, and the protection of individual rights. Only thus can a government of laws, the foundation stone of human liberty, be strengthened and made secure for that very public. It is with these thoughts in mind that, with sincere regret, I am constrained to dissent. The power of the legislative bodies under the American system of government to punish for contempt was at the beginning totally denied by some courts and students of constitutional law, on the ground that this power is judicial in nature and belongs to the judiciary branch of the government under the constitutional scheme. The point however is now settled in favor of the existence of the power. This rule is based on the necessity for the attainment of the ends for which legislative body is created. Nor can the legitimacy of the purpose of the investigation which the Senate ordered in this case be disputed. As a corollary, it was likewise legitimate and necessary for the committee to summon the petitioner with a command to produce his books and documents, and to commit him to prison for his refusal or failure to obey the subpoena. And, finally, there is no question that the arresting officers were fully justified in using necessary bodily force to bring him before the bar of the Senate when he feigned illness and stalled for time in the mistaken belief that after the closing of the then current session of Congress he could go scot-free. At the same time, there is also universal agreement that the power is not absolute. The disagreement lies in the extent of the power, and such disagreement is to be found even between decisions of the same court. Anderson vs.Dunn, 6 Wheat., No. 204, may be said to have taken the most liberal view of the legislature's authority and Kilbourn vs. Thompson, 103 U.S. 168, which partly overruled and qualified the former, the strictest. By the most liberal standard the power is restricted "by considerations as to the nature of the inquiry, occasion, or action in connection with which the contemptuous conduct has occurred." Punishment must be resorted to for the efficient exercise of the legislative function. Even Anderson vs. Dunn speaks of the power as "the least possible power adequate to the end proposed." Judged by any test, the question propounded to the witness does not, in my opinion, meet the constitutional requirement. It is obvious, I think, that the query has nothing to do with any matter within the cognizance of the Congress. There is, on the contrary, positive suggestion that the question has no relation to the contemplated legislation. The statement of the committee in its report that the information sought to be obtained would clear the names of the persons suspected of having received the money, is, on the surface, the most or only plausible reason that can be advanced. Assuming this to be the motive behind the question, yet little reflection will show that the same is beyond the scope of legislative authority and prerogatives. It is outside the concern of the Congress to protect the honor of particular citizens except that of its own members' as a means of preserving respect and confidence in that body. Moreover, the purported good intention must assume, if it is to materialize, that the persons under suspicion are really innocent; for if they are not and the witness will tell the truth, the result will be to augment their disgrace rather than vindicate their honor. This is all the more likely to happen because one of those persons, is judged from the committee's findings, the most likely one, to say the least, who got the money. If the process of deduction is pressed further, the reasonable conclusion seems to be that the object of the question is, to mention only one, to prepare the way for a court action. The majority, decision indirectly admits or insinuates this to be the case. It says, "It appearing that the questioned transaction was affected by the head of the Department of Justice himself, it is not reasonable to expect the fiscal or the Court of First Instance of Manila will take the initiative to investigate and prosecute the parties responsible for the deal until and unless the Senate shall have determined who those parties are and shall have taken such measures as may be within its competence to take, to redress the wrong that may have been committed against the people as a result of the transaction." So here is an admission, implied if not express, that the Senate wants the witness to give names because the fiscal or the courts will not initiate an action against parties who should be

prosecuted. It is needless to say that the institution of a criminal or civil suit is a matter that devolves upon other departments of the government, alien to the duties of the Congress to look after. The Congress is at full liberty, of course, to make any investigation for the purpose of aiding the fiscal or the courts, but this liberty does not carry with it the authority to imprison persons who refuse to testify. In the intricacy and complexity of an investigation it is often impossible to foretell before its close what relation certain facts may bear on the final results, and experience has shown that investigators and courts would do well to veer on the liberal side in the resolution of doubtful questions. But the Senate is not now in the midst of an inquiry with the situation still in a fluid or tentative state. Now the facts are no longer confused. The committee has finished its investigation and submitted its final report and the Senate has approved a bill on the bases of the facts found. All the pertinent facts having been gathered, as is to be inferred from that the report and the nature of the Senate's action, every question, every fact, every bit of testimony has taken a distinct meaning susceptible of concrete and definite evaluation; the task has been reduced to the simple process of sifting the grain from the chaffs. In the light of the committee's report and of the bill introduced and approved in the Senate, it seems quite plain that the express naming of the recipient or recipients of the money is entirely unessential to anything the Senate has a right or duty to do in premises. Names may be necessary for the purpose of criminal prosecution, impeachment or civil suit. In such proceedings, identities are essential. In some legislative investigations it is important to know the names of public officials involved. But the particular disclosure sought of the petitioner here is immaterial to the proposed law. It is enough for the Senate, for its own legitimate object, to learn how the Department of Justice had in the purchase, and to have a moral conviction as to the identity of the person who benefited thereby. The need for such legislation and translated into the bill approved by the Senate is met by an insight into a broad outline of the deal. To paraphrase the U.S. Supreme Court in Anderson vs. Dunn, although the passage was used in another connection, legislation is a science of experiment and the relation between the legislator and the end does not have to be so direct as to strike the eye of the former. One of the proposed laws have prohibits brothers and near relatives of any president of the Philippines from intervening directly or indirectly in transactions in which the Government is a party. It is stated that this is subject to change depending on the answer Arnault may give. This statement is wide open to challenge. If Arnault should Antonio Quirino it must be admitted that the bill would not be altered. But let us suppose that the witness will point to another man. Will the result be any different? Will the Senate recall the bill? I can not perceive the slightest possibility of such eventuality. The pending bill was framed on the assumption that Antonio Quirino was a party to the deal in question. As has been said, the committee entertains a moral conviction that this brother of the President was the recipient of a share of the proceeds of sale. No amount of assurance by Arnault to the contrary would be believed for truth. And, I repeat, the proposed legislation does not need for its justification legal evidence of Antonio Quirino's intervention in the transaction. All this in the first place. In the second place, it is not to be assumed that the present bill is aimed solely against Antonio Quirino whose relation to the Administration is but temporary. It is more reasonable to presume that the proposed enactment is intended for all time and for all brothers of future presidents, for in reality it is no more than an extension or enlargement of laws already found in the statute book which guard against temptations to exploit official positions or influence to the prejudice of public interests. The disputed question is, in fact, not only irrelevant but moot. This is decisive of the irrelevancy of this question. As has been noticed, the committee has submitted its final report and recommendation, and a bill has been approved by the Senate calculated to prevent recurrence of the anomalies exposed. For the purpose for which it was instituted the inquiry is over and the committee's mission accomplished. It is true that the committee continues to sit during the recess of Congress, but it is obvious from all the circumstances that the sole and real object of the extension of the committee's sittings is to receive the witness' answer in the event he capitulates. I am unable to see any new phase of the deal which the Senate could legitimately wish to know, and the respondents and this Court have not pointed out any. That the committee has not sat and nothing has been done so far except to wait for Arnault's answer is a convincing manifestation of the above conclusion. The order "to continue its investigation" contained in Senate Resolution No. 16 cannot disguise the realities revealed by the Senate's actions already referred to and by the emphasis given to the instruction "to continue its (committee's) examination of Jean L. Arnault regarding the name of the person to whom he gave the P440,000." The instruction 'to continue the investigation' is not entitled to the blind presumption that it embraces matters other than the revelation by the witness of the name of the person who got the money. Jurisdiction to deprive a citizen of liberty outside the usual process is not acquired by innuendoes or vague assertions of the facts on which jurisdiction is made to depend. If the judgment of the court of law of limited jurisdiction does not enjoy the presumption of legality, much less can the presumption of regularity be invoked for a resolution of a deliberative body whose power to inflict punishment upon private citizens is wholly derived by implication and vehemently contested by some judges. At any rate, "the stronger presumption of innocence attends accused at the trial", "and it is incumbent" upon the respondents "to show that the question pertains to some matter under investigation." (Sinclair vs. U. S., 73 L. ed., 693.) This rule stems from the fact that the power is in derogation of the constitutional guarantee that no person shall be deprived of life, liberty, or property without due process of law, which presupposes " a trial in which the rights of the parties shall be decided by a tribunal appointed by law, which tribunal is to governed by rules of law previously established." Powers so dangerous to the liberty of a citizen can

not be allowed except where the pertinence is clear. A Judge who abuses such power may be impeached and he acts at all times under the sense of this accountability and responsibility. His victims may be reached by the pardoning power. But if the Congress be allowed this unbounded jurisdiction of discretion, there is no redress, The Congress may dispoil of a citizen's life, liberty or property and there is no power on earth to stop its hand. There is, there can be, no such unlimited power in any department of the government of the Republic. (Loan Association vs. Topeka, 20 Wall, Nos. 662, 663; Taylor vs.Porter, 4 Hill No. N.Y. 140.) The above rule and discussion apply with equal force to the instruction to the committee in the original resolution, "to determine the parties responsible for the deal." It goes without saying that the congress cannot authorize a committee to do what it itself cannot do. In other words, the` Senate could not insist on the disclosure of Arnault's accomplice in the present state of the investigation if the Senate were conducting the inquiry itself instead of through a committee. Our attention is called to the fact that "in the Philippines, the legislative power is vested in the Congress of the Philippines alone, and therefore that the Congress of the Philippines has a wider range of legislative field than the Congress of the United States or any state legislature." From this premise the inference is drawn that " the field of inquiry into it (Philippine Congress) may enter is also wider." This argument overlooks the important fact that congressional or legislative committees both here and in the Unived States, do not embark upon fishing expeditions in search of information which by chance may be useful to legislation. Inquiries entrusted to congressional committee, whether here or in the United States, are necessarily for specific objects within the competence of the Congress to look into. I do not believe any reason, rule or principle could be found which would sustain the theory that just because the United States Congress or a state legislature could legislate on, say, only ten subjects and the Philippine Congress on twenty, the latter's power to commit to prison for contempt is proportionately as great as that of the former. In the consideration of the legality of an imprisonment for the contempt by each House, the power is gauged not be the greater or lesser number of subject matters that fall within its sphere of action, but by the answer to the question, has it jurisdiction over the matter under investigation? Bearing this distinction in mind, it is apparent that the power of a legislature to punish for contempt can be no greater nor less than that of any other. Were it possible for the Philippine Senate and the United States Senate to undertake an investigation of exactly identical anomalies in their respective departments of justice, could it be asserted with any support of logic that one Senate has a wider authority to imprison for contempt in such investigation simply because it has a "wider range of legislative field?" It is said that the Senate bill has not been acted upon by the lower house and that even if it should pass in that chamber it would still have the President's veto to hurdle. It has been expressly stated at the oral argument, and there is insinuation in this Court's decision, that the revelation of the name or names of the person or persons who received the money may help in convincing the House of Representatives or the President of the wisdom of the pending measure. Entirely apart from the discussion that the House of Representatives and the Chief Executive have their own idea of what they need to guide them in the discharge of their respective duties, and they have the facilities of their own for obtaining the requisite data. There is another objection, more fundamental, to the Senate invoking the interest or convenience of the other House or the President as ground of jurisdiction. The House of Representatives and the President are absolutely independent of the Senate, in the conduct of legislative and administrative inquiries, and the power of each House to imprison for contempt does not go beyond the necessity for its own selfpreservation or for making its express powers effective. Each House exercises this power to protect or accomplish its own authority and not that of the other House or the President. Each House and the President are supposed to take care of their respective affairs. The two Houses and the Chief Executive act separately although the concurrence of the three is required in the passage of legislation and of both Houses in the approval of resolutions. As the U.S. Supreme Court in Kilbourn vs.Thompson, said, "No general power of inflicting punishment by the Congress (as distinct from a House is found in the Constitution." "An act of Congress — it said — which proposed to adjudge a man guilty of a crime and inflict the punishment, will be considered by all thinking men to be unauthorized by the Constitution." Kilbourn vs. Thompson, supra, it is said can not be relied on in this case as a precedent because, so it is also said, "the subject of the inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of either House of Congress; while here it is not disputed that the subject of the inquiry, which relates to a transaction involving a questionable expenditure by the Government of P5,000,000 of public funds, is within the Jurisdiction of the Senate." Yet the remarks of Judge Land is which are quoted in the majority decision point out that the inquiry "was a normal and customary part of the legislative process." Moreover, Kilbourn vs. Thompson is important, not for the matter it treated but for the principles it enunciated. It is also said that Kilbourn vs. Thompson did not meet with universal approval as Judge Land is' article above mentioned shows. The jurist who delivered the opinion in that case, Mr. Justice Miller, was one of the "giants" who have ever sat on the Supreme Federal Bench, venerated and eminent for the width and depth of his learning. Subsequent decisions, as far as I have been able to ascertain, have not rejected or criticized but have followed it, and it still stands as a landmark in this branch of constitutional law. If we can lean on private opinions and magazine articles for comfort, the petitioner can cite one by a legal scholar and author no less reknown and respected than Judge Land is. I refer to Judge Wigmore who, referring to an investigation of the U.S. Department of Justice said in an article published in 19 (1925) Illinois Law Review, 452:

The senatorial debauch of investigations — poking into political garbage cans and dragging the sewers of political intrigue — filled the winter of 1923-24 with a stench which has not yet passed away. Instead of employing the constitutional, manly, fair procedure of impeachment, the Senate flung self-respect and fairness to the winds. As a prosecutor, the Senate presented a spectacle which cannot even be dignified by a comparison with the persecutive scoldings of Coke and Scroggs and Jeffreys, but fell rather in popular estimate to the level of professional searchers of the municipal dunghills. It is far from my thought to subscribe to this vituperation as applied to our Senate. Certainly, this august body said not only do the right thing but is entitled to the lasting gratitude of the people for taking the courageous stand it did in probing into an anomaly that robbed a depleted treasury of a huge amount. I have tried to make it clear that my disagreement with the majority lies not in the propriety or constitutionality of the investigation but in the pertinence to that investigation of a single question. The investigation, as had been said, was legal and commendable. My objection is that the Senate having started within the bounds of its authority, has, in entire good faith, overstepped those bounds and trespassed on a territory reserved to other branches of the government, when it imprisoned a witness for contumacy on a point that is unimportant, useless, impertinent and irrelevant, let alone moot. Thus understood, this humble opinion does not conflict with the views of Judge Land is and all other advocates of wide latitude for congressional investigations. All are agreed, and the majority accept the proposition, that there is a limit to the legislative power to punish for contempt. The limit is set in Anderson vs. Dunn which Judge Land is approved — "the least possible power adequate to the end proposed."