SECOND DIVISION

[G.R. No. 153660. June 10, 2003.]

PRUDENCIO BANTOLINO, NESTOR ROMERO, NILO ESPINA, EDDIE LADICA, ARMAN QUELING, ROLANDO
NIETO, RICARDO BARTOLOME, ELUVER GARCIA, EDUARDO GARCIA and NELSON
MANALASTAS, petitioners, vs. COCA-COLA BOTTLERS PHILS., INC., respondent.

DECISION

BELLOSILLO, J p:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision of the Court of
Appeals 1 dated 21 December 2001 which affirmed with modification the decision of the National Labor Relations
Commission promulgated 30 March 2001. 2

On 15 February 1995 sixty-two (62) employees of respondent Coca-Cola Bottlers, Inc., and its officers, Lipercon Services,
Inc., People's Specialist Services, Inc., and Interim Services, Inc., filed a complaint against respondents for unfair labor
practice through illegal dismissal, violation of their security of tenure and the perpetuation of the "Cabo System." They
thus prayed for reinstatement with full back wages, and the declaration of their regular employment status. aSATHE

For failure to prosecute as they failed to either attend the scheduled mandatory conferences or submit their respective
affidavits, the claims of fifty-two (52) complainant-employees were dismissed. Thereafter, Labor Arbiter Jose De Vera
conducted clarificatory hearings to elicit information from the ten (10) remaining complainants (petitioners herein) relative
to their alleged employment with respondent firm.

In substance, the complainants averred that in the performance of their duties as route helpers, bottle segregators, and
others, they were employees of respondent Coca-Cola Bottlers, Inc. They further maintained that when respondent
company replaced them and prevented them from entering the company premises, they were deemed to have been
illegally dismissed.

In lieu of a position paper, respondent company filed a motion to dismiss complaint for lack of jurisdiction and cause of
action, there being no employer-employee relationship between complainants and Coca-Cola Bottlers, Inc., and that
respondents Lipercon Services, People's Specialist Services and Interim Services being bona fide independent
contractors, were the real employers of the complainants. 3 As regards the corporate officers, respondent insisted that
they could not be faulted and be held liable for damages as they only acted in their official capacities while performing
their respective duties.

On 29 May 1998 Labor Arbiter Jose De Vera rendered a decision ordering respondent company to reinstate complainants
to their former positions with all the rights, privileges and benefits due regular employees, and to pay their full back wages
which, with the exception of Prudencio Bantolino whose back wages must be computed upon proof of his dismissal as of
31 May 1998, already amounted to an aggregate of P1,810,244.00. 4

In finding for the complainants, the Labor Arbiter ruled that in contrast with the negative declarations of respondent
company's witnesses who, as district sales supervisors of respondent company denied knowing the complainants
personally, the testimonies of the complainants were more credible as they sufficiently supplied every detail of their
employment, specifically identifying who their salesmen/drivers were, their places of assignment, aside from their dates of
engagement and dismissal.

On appeal, the NLRC sustained the finding of the Labor Arbiter that there was indeed an employer-employee relationship
between the complainants and respondent company when it affirmed in toto the latter's decision.

In a resolution dated 17 July 2001 the NLRC subsequently denied for lack of merit respondent's motion for consideration.

Respondent Coca-Cola Bottlers appealed to the Court of Appeals which, although affirming the finding of the NLRC that
an employer-employee relationship existed between the contending parties, nonetheless agreed with respondent that the
affidavits of some of the complainants, namely, Prudencio Bantolino, Nestor Romero, Nilo Espina, Ricardo Bartolome,
Eluver Garcia, Eduardo Garcia and Nelson Manalastas, should not have been given probative value for their failure to
affirm the contents thereof and to undergo cross-examination. As a consequence, the appellate court dismissed their
complaints for lack of sufficient evidence. In the same Decision however, complainants Eddie Ladica, Arman Queling and
Rolando Nieto were declared regular employees since they were the only ones subjected to cross-examination. 5 Thus —

. . . (T)he labor arbiter conducted clarificatory hearings to ferret out the truth between the opposing claims of the parties
thereto. He did not submit the case based on position papers and their accompanying documentary evidence as a full-
blown trial was imperative to establish the parties' claims. As their allegations were poles apart, it was necessary to give
them ample opportunity to rebut each other's statements through cross-examination. In fact, private respondents Ladica,
Quelling and Nieto were subjected to rigid cross-examination by petitioner's counsel. However, the testimonies of private
respondents Romero, Espina, and Bantolino were not subjected to cross-examination, as should have been the case, and
no explanation was offered by them or by the labor arbiter as to why this was dispensed with. Since they were
represented by counsel, the latter should have taken steps so as not to squander their testimonies. But nothing was done
by their counsel to that effect. 6

Petitioners now pray for relief from the adverse Decision of the Court of Appeals; that, instead, the favorable judgment of
the NLRC be reinstated.

In essence, petitioners argue that the Court of Appeals should not have given weight to respondent's claim of failure to
cross-examine them. They insist that, unlike regular courts, labor cases are decided based merely on the parties' position
papers and affidavits in support of their allegations and subsequent pleadings that may be filed thereto. As such,
according to petitioners, the Rules of Court should not be strictly applied in this case specifically by putting them on the
witness stand to be cross-examined because the NLRC has its own rules of procedure which were applied by the Labor
Arbiter in coming up with a decision in their favor.

In its disavowal of liability, respondent commented that since the other alleged affiants were not presented in court to
affirm their statements, much less to be cross-examined, their affidavits should, as the Court of Appeals rightly held, be
stricken off the records for being self-serving, hearsay and inadmissible in evidence. With respect to Nestor Romero,
respondent points out that he should not have been impleaded in the instant petition since he already voluntarily executed
a Compromise Agreement, Waiver and Quitclaim in consideration of P450,000.00. Finally, respondent argues that the
instant petition should be dismissed in view of the failure of petitioners 7 to sign the petition as well as the verification and
certification of non-forum shopping, in clear violation of the principle laid down in Loquias v. Office of the Ombudsman. 8

The crux of the controversy revolves around the propriety of giving evidentiary value to the affidavits despite the failure of
the affiants to affirm their contents and undergo the test of cross-examination.

The petition is impressed with merit. The issue confronting the Court is not without precedent in jurisprudence. The oft-
cited case of Rabago v. NLRC 9 squarely grapples a similar challenge involving the propriety of the use of affidavits
without the presentation of affiants for cross-examination. In that case, we held that "the argument that the affidavit is
hearsay because the affiants were not presented for cross-examination is not persuasive because the rules of evidence
are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on
the basis of position papers only."

In Rase v. NLRC, 10 this Court likewise sidelined a similar challenge when it ruled that it was not necessary for the
affiants to appear and testify and be cross-examined by counsel for the adverse party. To require otherwise would be to
negate the rationale and purpose of the summary nature of the proceedings mandated by the Rules and to make
mandatory the application of the technical rules of evidence.

Southern Cotabato Dev. and Construction Co. v. NLRC 11 succinctly states that under Art. 221 of the Labor
Code,the rules of evidence prevailing in courts of law do not control proceedings before the Labor Arbiter and the NLRC.
Further, it notes that the Labor Arbiter and the NLRC are authorized to adopt reasonable means to ascertain the facts in
each case speedily and objectively and without regard to technicalities of law and procedure, all in the interest of due
process. We find no compelling reason to deviate therefrom.

To reiterate, administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the
rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only
stringent application, i.e., by analogy or in a suppletory character and effect. The submission by respondent, citing People
v. Sorrel, 12 that an affidavit not testified to in a trial, is mere hearsay evidence and has no real evidentiary value, cannot
find relevance in the present case considering that a criminal prosecution requires a quantum of evidence different from
that of an administrative proceeding. Under the Rules of the Commission, the Labor Arbiter is given the discretion to
determine the necessity of a formal trial or hearing. Hence, trial-type hearings are not even required as the cases may be
decided based on verified position papers, with supporting documents and their affidavits.

As to whether petitioner Nestor Romero should be properly impleaded in the instant case, we only need to follow the
doctrinal guidance set by Periquet v. NLRC 13 which outlines the parameters for valid compromise agreements, waivers
and quitclaims —

Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and
represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a
change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspecting or gullible person,
or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction.
But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing,
and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and
binding undertaking.

In closely examining the subject agreements, we find that on their face the Compromise Agreement 14 and Release,
Waiver and Quitclaim 15 are devoid of any palpable inequity as the terms of settlement therein are fair and just. Neither
can we glean from the records any attempt by the parties to renege on their contractual agreements, or to disavow or
disown their due execution. Consequently, the same must be recognized as valid and binding transactions and,
accordingly, the instant case should be dismissed and finally terminated insofar as concerns petitioner Nestor Romero.

We cannot likewise accommodate respondent's contention that the failure of all the petitioners to sign the petition as well
as the Verification and Certification of Non-Forum Shopping in contravention of Sec. 5, Rule 7, of the Rules of Court will
cause the dismissal of the present appeal. While the Loquias case requires the strict observance of the Rules, it however
provides an escape hatch for the transgressor to avoid the harsh consequences of non-observance. Thus —

. . . . We find that substantial compliance will not suffice in a matter involving strict observance of the rules. The attestation
contained in the certification on non-forum shopping requires personal knowledge by the party who executed the
same. Petitioners must show reasonable cause for failure to personally sign the certification. Utter disregard of the rules
cannot justly be rationalized by harking on the policy of liberal construction (Italics supplied).

In their Ex Parte Motion to Litigate as Pauper Litigants, petitioners made a request for a fifteen (15)-day extension, i.e.,
from 24 April 2002 to 8 May 2002, within which to file their petition for review in view of the absence of a counsel to
represent them. 16 The records also reveal that it was only on 10 July 2002 that Atty. Arnold Cacho, through the UST
Legal Aid Clinic, made his formal entry of appearance as counsel for herein petitioners. Clearly, at the time the instant
petition was filed on 7 May 2002 petitioners were not yet represented by counsel. Surely, petitioners who are non-lawyers
could not be faulted for the procedural lapse since they could not be expected to be conversant with the nuances of the
law, much less knowledgeable with the esoteric technicalities of procedure. For this reason alone, the procedural infirmity
in the filing of the present petition may be overlooked and should not be taken against petitioners.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE and the
decision of the NLRC dated 30 March 2001 which affirmed in toto the decision of the Labor Arbiter dated 29 May 1998
ordering respondent Coca-Cola Bottlers Phils., Inc., to reinstate Prudencio Bantolino, Nilo Espina, Eddie Ladica, Arman
Queling, Rolando Nieto, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and Nelson Manalastas to their former
positions as regular employees, and to pay them their full back wages, with the exception of Prudencio Bantolino whose
back wages are yet to be computed upon proof of his dismissal, is REINSTATED, with the MODIFICATION that herein
petition is DENIED insofar as it concerns Nestor Romero who entered into a valid and binding Compromise
Agreement and Release, Waiver and Quitclaim with respondent company. ECTIcS

SO ORDERED.

SECOND DIVISION
[G.R. No. 127240. March 27, 2000.]

ONG CHIA, petitioner, vs. REPUBLIC OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.

DECISION

MENDOZA, J p:

This is a petition for review of the decision 1 of the Court of Appeals reversing the decision of the Regional Trial Court,
Branch 24, Koronadal, South Cotabato 2 admitting petitioner Ong Chia to Philippine citizenship. prLL

The facts are as follows:

Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year old boy, he arrived at the port of Manila
on board the vessel "Angking." Since then, he has stayed in the Philippines where he found employment and eventually
started his own business, married a Filipina, with whom he had four children. On July 4, 1989, at the age of 66, he filed a
verified petition to be admitted as a Filipino citizen under C.A. No. 473, otherwise known as the Revised Naturalization
Law, as amended. Petitioner, after stating his qualifications as required in §2, and lack of the disqualifications enumerated
in §3 of the law, stated —

17. That he has heretofore made (a) petition for citizenship under the provisions of Letter of Instruction No. dito 270 with
the Special Committee on Naturalization, Office of the Solicitor General, Manila, docketed as SCN Case No. 031776, but
the same was not acted upon owing to the fact that the said Special Committee on Naturalization was not reconstituted
after the February, 1986 revolution such that processing of petitions for naturalization by administrative process was
suspended;

During the hearings, petitioner testified as to his qualifications and presented three witnesses to corroborate his testimony.
So impressed was Prosecutor Isaac Alvero V. Moran with the testimony of petitioner that, upon being asked by the court
whether the State intended to present any witness against him, he remarked: prcd

Actually, Your Honor, with the testimony of the petitioner himself which is rather surprising, in the sense that he seems to
be well-versed with the major portion of the history of the Philippines, so, on our part,  we are convinced, Your Honor
Please, that petitioner really deserves to be admitted as a citizen of the Philippines. And for this reason, we do not wish to
present any evidence to counteract or refute the testimony of the witnesses for the petitioner, as well as the petitioner
himself. 3

Accordingly, on August 25, 1999, the trial court granted the petition and admitted petitioner to Philippine citizenship. The
State, however, through the Office of the Solicitor General, appealed contending that petitioner: (1) failed to state all the
names by which he is or had been known; (2) failed to state all his former places of residence in violation of  C.A. No. 473,
§7; (3) failed to conduct himself in a proper and irreproachable manner during his entire stay in the Philippines, in violation
of §2; (4) has no known lucrative trade or occupation and his previous incomes have been insufficient or misdeclared,
also in contravention of §2; and (5) failed to support his petition with the appropriate documentary evidence. 4

Annexed to the State's appellant's brief was a copy of a 1977 petition for naturalization filed by petitioner with the Special
Committee on Naturalization in SCN Case No. 031767, 5 in which petitioner stated that in addition to his name of "Ong
Chia," he had likewise been known since childhood as "Loreto Chia Ong." As petitioner, however, failed to state this other
name in his 1989 petition for naturalization, it was contended that his petition must fail.  6 The State also annexed income
tax returns 7 allegedly filed by petitioner from 1973 to 1977 to show that his net income could hardly support himself and
his family. To prove that petitioner failed to conduct himself in a proper and irreproachable manner during his stay in the
Philippines, the State contended that, although petitioner claimed that he and Ramona Villaruel had been married twice,
once before a judge in 1953, and then again in church in 1977, petitioner actually lived with his wife without the benefit of
marriage from 1953 until they were married in 1977. It was alleged that petitioner failed to present his 1953 marriage
contract, if there be any. The State also annexed a copy of petitioner's 1977 marriage contract 8 and a Joint-
Affidavit 9 executed by petitioner and his wife. These documents show that when petitioner married Ramona Villaruel on
February 23, 1977, no marriage license had been required in accordance with Art. 76 of the  Civil Code because petitioner
and Ramona Villaruel had been living together as husband and wife since 1953 without the benefit of marriage. This,
according to the State, belies his claim that when he started living with his wife in 1953, they had already been married.
The State also argued that, as shown by petitioner's Immigrant Certificate of Residence,  10 petitioner resided at "J.M.
Basa Street, Iloilo," but he did not include said address in his petition.

On November 15, 1996, the Court of Appeals rendered its decision which, as already noted, reversed the trial court and
denied petitioner's application for naturalization. It ruled that due to the importance of naturalization cases, the State is not
precluded from raising questions not presented in the lower court and brought up for the first time on appeal.  11 The
appellate court held: cdrep

As correctly observed by the Office of the Solicitor General, petitioner Ong Chia failed to state in this present petition for
naturalization his other name, "LORETO CHIA ONG," which name appeared in his previous application under Letter of
Instruction No. dito 270. Names and pseudonyms must be stated in the petition for naturalization and failure to include the
same militates against a decision in his favor . . . This is a mandatory requirement to allow those persons who know
(petitioner) by those other names to come forward and inform the authorities of any legal objection which might adversely
affect his application for citizenship.

Furthermore, Ong Chia failed to disclose in his petition for naturalization that he formerly resided in "J.M. Basa St., Iloilo"
and "Alimodian, Iloilo." Section 7 of the Revised dito Naturalization Law requires the applicant to state in his petition "his
present and former places of residence." This requirement is mandatory and failure of the petitioner to comply with it is
fatal to the petition. As explained by the Court, the reason for the provision is to give the public, as well as the
investigating agencies of the government, upon the publication of the petition, an opportunity to be informed thereof and
voice their objections against the petitioner. By failing to comply with this provision, the petitioner is depriving the public
and said agencies of such opportunity, thus defeating the purpose of the law. . .

Ong Chia had not also conducted himself in a proper and irreproachable manner when he lived-in with his wife for several
years, and sired four children out of wedlock. It has been the consistent ruling that the "applicant's 8-year cohabitation with
his wife without the benefit of clergy and begetting by her three children out of wedlock is a conduct far from being proper
and irreproachable as required by the Revised dito Naturalization Law," and therefore disqualifies him from becoming a
citizen of the Philippines by naturalization. . .

Lastly, petitioner Ong Chia's alleged annual income in 1961 of P5,000.00, exclusive of bonuses, commissions and
allowances, is not lucrative income. His failure to file an income tax return "because he is not liable for income tax yet"
confirms that his income is low. . ." It is not only that the person having the employment gets enough for his ordinary
necessities in life. It must be shown that the employment gives one an income such that there is an appreciable margin of
his income over expenses as to be able to provide for an adequate support in the event of unemployment, sickness, or
disability to work and thus avoid one's becoming the object of charity or public charge." . . . Now that they are in their old
age, petitioner Ong Chia and his wife are living on the allowance given to them by their children. The monthly pension
given by the elder children of the applicant cannot be added to his income to make it lucrative because like bonuses,
commissions and allowances, said pensions are contingent, speculative and precarious. . .

Hence, this petition based on the following assignment of errors:

I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN RULING THAT IN NATURALIZATION CASES, THE APPELLATE COURT
CAN DENY AN APPLICATION FOR PHILIPPINE CITIZENSHIP ON THE BASIS OF DOCUMENTS NOT PRESENTED BEFORE THE TRIAL COURT
AND NOT FORMING PART OF THE RECORDS OF THE CASE.

II. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER HAS BEEN KNOWN BY SOME OTHER NAME NOT STATED IN HIS
PETITION IS NOT SUPPORTED BY THE EVIDENCE ON RECORD. LibLex

III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE PETITIONER STATED IN HIS PETITION AND ITS ANNEXES HIS PRESENT
AND FORMER PLACES OF RESIDENCE.

IV. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER FAILED TO CONDUCT HIMSELF IN A PROPER AND
IRREPROACHABLE MANNER IS NOT SUPPORTED BY THE EVIDENCE ON RECORD.

Petitioner's principal contention is that the appellate court erred in considering the documents which had merely been annexed
by the State to its appellant's brief and, on the basis of which, justified the reversal of the trial court's decision. Not having been
presented and formally offered as evidence, they are mere "scrap(s) of paper devoid of any evidentiary value,"  12 so it was
argued, because under Rule 132, §34 of the Revised Rules on Evidence, the court shall consider no evidence which has not
been formally offered.
The contention has no merit. Petitioner failed to note Rule 143 13 of the Rules of Court which provides that —

These rules shall not apply to land registration, cadastral and election cases, naturalization and insolvency proceedings, and
other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.
(italics added)

Prescinding from the above, the rule on formal offer of evidence (Rule 132, §34) now being invoked by petitioner is clearly not
applicable to the present case involving a petition for naturalization. The only instance when said rules may be applied by
analogy or suppletorily in such cases is when it is "practicable and convenient." That is not the case here, since reliance upon
the documents presented by the State for the first time on appeal, in fact, appears to be the more practical and convenient
course of action considering that decisions in naturalization proceedings are not covered by the rule on  res
judicata. 14 Consequently, a final favorable judgment does not preclude the State from later on moving for a revocation of the
grant of naturalization on the basis of the same documents.

Petitioner claims that as a result of the failure of the State to present and formally offer its documentary evidence before the trial
court, he was denied the right to object against their authenticity, effectively depriving him of his fundamental right to procedural
due process. 15 We are not persuaded. Indeed, the reason for the rule prohibiting the admission of evidence which has not
been formally offered is to afford the opposite party the chance to object to their admissibility. 16 Petitioner cannot claim that he
was deprived of the right to object to the authenticity of the documents submitted to the appellate court by the State. He could
have included his objections, as he, in fact, did, in the brief he filed with the Court of Appeals, thus:

The authenticity of the alleged petition for naturalization (SCN Case-No. 031767) which was supposedly filed by Ong Chia under
LOI 270 has not been established. In fact, the case number of the alleged petition for naturalization . . . is  031767 while the case
number of the petition actually filed by the appellee is 031776. Thus, said document is totally unreliable and should not be
considered by the Honorable Court in resolving the instant appeal. 17

Indeed, the objection is flimsy as the alleged discrepancy is trivial, and, at most, can be accounted for as a typographical error
on the part of petitioner himself. That "SCN Case No. 031767," a copy of which was annexed to the petition, is the correct case
number is confirmed by the Evaluation Sheet 18 of the Special Committee On Naturalization which was also docketed as "SCN
Case No. 031767." Other than this, petitioner offered no evidence to disprove the authenticity of the documents presented by
the State. prLL

Furthermore, the Court notes that these documents — namely, the petition in SCN Case No. 031767, petitioner's marriage
contract, the joint affidavit executed by him and his wife, and petitioner's income tax returns — are all public documents. As
such, they have been executed under oath. They are thus reliable. Since petitioner failed to make a satisfactory showing of any
flaw or irregularity that may cast doubt on the authenticity of these documents, it is our conclusion that the appellate court did not
err in relying upon them.

One last point. The above discussion would have been enough to dispose of this case, but to settle all the issues raised, we
shall briefly discuss the effect of petitioner's failure to include the address "J.M. Basa St., Iloilo" in his petition, in accordance with
§7, C.A. No. 473. This address appears on petitioner's Immigrant Certificate of Residence, a document which forms part of the
records as Annex A of his 1989 petition for naturalization. Petitioner admits that he failed to mention said address in petition, but
argues that since the Immigrant Certificate of Residence containing it had been fully published, 19 with the petition and the other
annexes, such publication constitutes substantial compliance with §7. 20 This is allegedly because the publication effectively
satisfied the objective sought to be achieved by such requirement, i.e., to give investigating agencies of the government the
opportunity to check on the background of the applicant and prevent suppression of information regarding any possible
misbehavior on his part in any community where he may have lived at one time or another.  21 It is settled, however, that
naturalization laws should be rigidly enforced and strictly construed in favor of the government and against the applicant. 22 As
noted by the State, C.A. No. 473, §7 clearly provides that the applicant for naturalization shall set forth in the petition his present
and former places of residence. 23 This provision and the rule of strict application of the law in naturalization cases defeat
petitioner's argument of "substantial compliance" with the requirement under the Revised Naturalization Law. On this ground
alone, the instant petition ought to be denied.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the instant petition is hereby DENIED. SO ORDERED.

FIRST DIVISION

[G.R. No. 112983. March 22, 1995.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HECTOR MAQUEDA @ PUTOL, and RENE SALVAMANTE (at
large), accused, HECTOR MAQUEDA @ PUTOL, accused-appellant.

DECISION

DAVIDE, JR., J p:

As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and his Filipino wife,
Teresita Mendoza, chose the peace and quiet of a country home not any near the metropolis of Manila or its environs, but
in the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable paradise, beyond
the reach of worldly distractions and trouble. That illusion was shattered when in the early morning of 27 August 1991, in
the sanctity of their own home, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a
robbery. Sufficient prima facie evidence pointed to Rene Salvamante, the victims, former houseboy, as one of the
perpetrators of the ghastly crime.

As to Rene's co-conspirator, the prosecution initially included one Richard Malig y Severino in the information for robbery
with homicide and serious physical injuries  1 filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC)
of Benguet at La Trinidad, Benguet. cdrep

Only Richard Malig was arrested. On 22 January 1992, prior to the arraignment of Richard Malig, the prosecution filed a
motion to amend the information 2 to implead as co-accused Hector Maqueda alias Putol because the evaluation of the
evidence subsequently submitted established his complicity in the crime, and at the hearing of the motion the following
day, the Prosecutor further asked that accused Richard Malig be dropped from the information because further evaluation
of the evidence disclosed no sufficient evidence against him. 3

The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued.
Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail.  4 He
categorically stated therein that "he is willing and volunteering to be a State witness in the above-entitled case, it
appearing that he is the least guilty among the accused in this case."

On 22 April 1992, the prosecution filed an Amended Information 5 with only Salvamante and Maqueda as the accused. Its
accusatory portion reads as follows:

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

[An enumeration and description of the articles follow]

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

Contrary to Law.

Since Rene Salvamante continues to elude arrest and has remained at large, trial proceeded against Maqueda only, after
he entered a plea of not guilty on 22 April 1992. 6

In its decision 7 promulgated on 31 August 1993, the trial court found accused Hector Maqueda guilty beyond reasonable
doubt of the crime of robbery with homicide and serious physical injuries and sentenced him to suffer the penalty
of reclusion perpetua and to "indemnify the victim, Teresita M. Barker in the amount of P50,000.00 for the death of William
Horace Barker, P41,681.00 representing actual expenses, P100,000.00 as moral damages and to pay the costs." LLjur

The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie Dacara and Julieta
Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje, Prosecutor Daniel Zarate, Ray Dean
Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda
Castrence and SPO3 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and presented
SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sur-rebuttal witness.

The version of the prosecution, as culled from the trial court's detailed and meticulous summary thereof, is as follows:

Between 10:30 and 11:00 p.m. of 26 August 1991, the spouses Horace William Barker and Teresita Mendoza Barker
repaired to their bedroom after Teresita had checked as was her wont, the main doors of their house to see if they had
been locked and bolted.

At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers who shared a room
with her cousin and fellow househelp, Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to
wash her face, and proceeded to the toilet. When she opened the door of the toilet and switched on the light, she saw
Rene Salvamante. She knew Salvamante very well because he and his sister Melanie were the former househelps of the
Barkers whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her
chores. LLphil

Salvamante suddenly strangled her. While she was fighting back, Norie happened to turn her face and she saw a fair-
complexioned, tall man with a high-bridged nose at Salvamante's side, whom she identified at the trial as Maqueda. After
she broke free from Salvamante, Norie fled towards the garage and shouted for help. Salvamante chased her and pulled
her back inside the house.

Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening the door of her room,
saw a man clad in maong jacket and short pants with his right hand brandishing a lead pipe standing two meters in front
of her. At the trial, she pointed to accused Maqueda as the man she saw then. She got scared and immediately closed the
door. Since the door knob turned as if someone was forcing his way into the room, she held on to it and shouted for help.

The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room, leaving behind her
husband who was still asleep. She went down the stairs and proceeded to the dining room. She saw Salvamante and a
companion who was a complete stranger to her. Suddenly, the two rushed towards her and beat her up with lead pipes.
Despite her pleas to get what they want and not to hurt her, they continued to beat her up until she lost consciousness. At
the trial, she pointed to accused Maqueda as Salvamante's companion.

Salvamante also hit Norie with the lead pipe on her back and at the back of her right hand. She fell to the concrete floor,
and after she had recovered, she ran to the garage and hid under the car. After a few seconds, she went near the door of
the garage and because she could not open it, she called Julieta. Julieta opened the door and they rushed to their room
and closed the door. When they saw that the door knob was being turned, they braced themselves against the door to
prevent anyone from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr.
Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta heard the sound of
water flowing from the toilet and the barking of dogs.

At 7:00 a.m. of that same day, 27, August 1991, Mike Tabayan and Mark Pacio were resting in a waiting shed beside the
Asin road at Aguyad, Tuba, Benguet, which is only a kilometer away from the house of the Barkers. They saw two men
approaching them from a curve. When the two men reached the shed, he and Mark noticed that the taller of the two had
an amputated left hand and a right hand with a missing thumb and index finger. This man was carrying a black bag on his
right shoulder.

Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following would lead to Naguilian,
La Union. Mike replied that it did not. Five minutes later, a passenger jeepney bound for Baguio City and owned and
driven by Ben Lusnong arrived at the waiting shed. The two men boarded it. Mike again noticed that the taller man had
the defects above mentioned because the latter used his right hand with only three fingers to hold on to the bar of the
jeepney as he boarded it. In the investigation conducted by the Tuba police, he identified through a picture the shorter
man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man.

At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered enough courage to leave the room where they had earlier
barricaded themselves and proceed to the kitchen to get the key to the gate of the garage. In the dining room, they saw
the Barkers bathed in their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet Albon to
seek help. After requesting Janet to call the police, they returned to the Barker's house but did not enter it for fear of what
they had seen earlier. They just stayed near the road. LLphil

Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio City Police Station,
headed by police Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health Department, also
arrived. The team conducted an initial investigation only because it found out that the scene of the crime was within the
jurisdiction of the Tuba Police Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu
found the body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location.
They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit "CC"), and a green
hand towel (Exhibit "DD"). He also discovered another lead pipe (Exhibit "BB") at the back of the door of the house. He
then interviewed the two househelps who provided him with descriptions of the assailants. The team then left, leaving
behind BCF Security Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation
(Exhibit "KK"). LibLex

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

At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at the Barker house to conduct their
investigation. Enriquez, who in the meantime was called by Dalit, returned to the Barker house.

The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the Baguio City Police were
first brought to the PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court.

The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road, Baguio City, where it was
examined by Dr. Francisco P. Cabotaje, Municipal Health Officer of Tuba, Benguet. He found in it twenty-seven injuries,
which could have been caused by a blunt instrument, determined the cause of death as hemorrhagic shock, and then
issued a death certificate (Exhibits "P," "O," and "R"). LexLib

The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center where she was treated
and confined for eight days. The attending physician, Dr. Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m.
of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations primarily on
the left side of the occipital area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes
was paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were
caused by a blunt instrument, like a lead pipe, and concluded that if her injuries had been left unattended, she would have
died by noontime of 27 August 1991 due to bleeding or hemorrhagic shock.

On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital bed of Mrs. Barker,
showed her pictures of several persons, and asked her to identify the persons who had assaulted her. She pointed to a
person who turned out to be Richard Malig. When informed of the investigation, Dr. Hernandez told the members of the
team that it was improper for them to conduct it without first consulting him since Mrs. Barker had not yet fully recovered
consciousness. Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double
vision. LexLib

On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged from the hospital and
upon getting home, tried to determine the items lost during the robbery. She requested Glen Enriquez to get back the
pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker
discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2")
were missing. The aggregate value of the missing items was P204,250.00. She then executed an affidavit on these
missing items (Exhibit "X").

Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she sustained a
damaged artery on her left eye which could cause blindness. She then sought treatment at the St. Luke's Roosevelt
Hospital in New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise received treatment at the
New York Medical Center (Exhibit "M").

On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen Enriquez to go to
Guinyangan, Quezon, to coordinate with the police in determining the whereabouts of accused Rene Salvamante. In
Guinyangan, Enriquez was able to obtain information from the barangay captain, Basilio Requeron, that he saw
Salvamante together with a certain "Putol" in September 1991; however, they already left the place.

On 21 December 1991, Enriquez, Melanio Mendoza, and three others went back to Guinyangan to find out whether
Salvamante and "Putol' had returned. Upon being informed by Barangay Captain Requeron that the two had not, Enriquez
requested Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan. cdll

On 4 March 1992, Requeron's daughter called up Enriquez to inform him that "Putol," who is none other than accused
Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police
Station, together with another policeman, proceeded to Guinyangan. The Guinyangan Police Station turned over
Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail.

Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the headquarters of the 235th PNP Mobile
Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Renton, directed SPO3 Armando
Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under
the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation
in the crime at the Barker house on 27 August 1991.

On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-6"). He stated therein
that "he is willing and volunteering to be a State witness in the above entitled case, it appearing that he is the least guilty
among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked
him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an
affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the
only accused on trial (Exhibit "II").

In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to
talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought
him to Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to the Barker house and it was
only when they were at the vicinity thereof that Salvamante revealed to him that his real purpose in going to Baguio City
was to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the kitchen of the
Barker house, one of the househelps was already there; Salvamante hit her with a lead pipe and she screamed; then Mrs.
Barker came down, forcing him, Maqueda, to attack her with the lead pipe provided him by Salvamante. After he felled
Mrs. Barker, he helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. When the Barkers
were already unconscious on the floor, Salvamante went upstairs and a few minutes later came down bringing with him a
radio cassette and some pieces of jewelry.

Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked toward the road
where they saw two persons from whom they asked directions and when a passenger jeepney stopped and they were
informed by the two persons that it was bound for Baguio City, he and Salvamante boarded it. They alighted somewhere
along Albano Street in Baguio City and walked until they reached the Philippine Rabbit Bus station where they boarded a
bus for Manila. 8

Accused Hector Maqueda put up the defense of denial and alibi. His testimony is summarized by the trial court in this
wise:

Accused Hector Maqueda denied having anything to do with the crime. He stated that on August 27, 1991 he was at the
polvoron factory owned by Minda Castrense located at Lot 1, Block 21, Posadas Bayview Subdivision, Sukat, Muntinlupa.
Metro Manila. He was employed as a caretaker since July 5, 1991 and he worked continuously there up to August 27,
1991. It was his sister, Myrna Katindig, who found him the job as caretaker. As caretaker, it was his duty to supervise the
employees in the factory and whenever his employer was not around, he was in charge of the sales. He and his 8 co-
employees all sleep inside the factory.

On August 26, 1991, he reported for work although he could not recall what he did that day. He slept inside the factory
that night and on August 27, 1991, he was teaching the new employees how to make the seasoning for the polvoron.

On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was his vacation time from his job
at the polvoron factory. He was to be back at work after New Year's Day in 1992. Upon alighting from the bus at
Guinyangan, Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they were childhood
playmates, having gone to the same elementary school. He had no chance to talk to him that day when he saw him and
so they just waved to each other. He again saw accused Salvamante after Christmas day on the road beside their
(Salvamante) house. Salvamante invited him to go to Calauag, Quezon Province and roam around. He agreed to go as
he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused
were at Calauag, Salvamante asked Maqueda to accompany him (Salvamante) in selling a cassette recorder which he
said came from Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's mother told him
about it. They were able to sell the cassette recorder to Salvamante's aunt. They had their meal and then went to visit
accused Maqueda's brother. After that occasion, he never saw accused Salvamante again. After his Christmas vacation,
he went back to work at the polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who was a
townmate of his asked him to accompany her home as she was hard up in her work at the factory. Hence, he
accompanied Roselyn home to Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he
was not able to as he was arrested by members of the CAFGU at the house of Roselyn Merca when he brought her
home. He was then brought to the Guinyangan municipal jail, then to the Tuba Police Station, Tuba, Benguet. There he
was told to cooperate with the police in arresting Salvamante so he would not stay long in the Province of Benguet. He
was also told that if he would point to accused Salvamante, he would be freed and he could also become a state witness.
He told them that he could attest to the fact that he accompanied accused Salvamante in selling the cassette
recorder. prLL

On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet where he has remained under
detention up to the present. 9

The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castrence and SPO3 Armando
Molleno. Castrence, the owner of the polvoron factory where Maqueda worked, testified that she started her business only
on 30 August 1991 and thus it was impossible for her to have hired Maqueda on 5 July 1991. SPO3 Molleno declared that
he informed Maqueda of his constitutional rights before Maqueda was investigated and that Maqueda voluntarily and
freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10

Although the trial court had doubts on the identification of Maqueda by prosecution witnesses Teresita Mendoza Barker,
Norie Dacara, and Julieta Villanueva and thus disregarded their testimonies on this matter, it decreed a conviction "based
on the confession and the proof of corpus delicti" as well as on circumstantial evidence. It stated thus:

Since we have discarded the positive identification theory of the prosecution pinpointing accused Maqueda as the culprit,
can we still secure a conviction based on the confession and the proof of  corpus delicti as well as on circumstantial
evidence?

In order to establish the guilt of the accused through circumstantial evidence, the following requisites must be present: 1)
there must be more than one circumstance; 2) the facts from which the inferences are derived are proved; and 3) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (People vs. Pajarit, G.R.
No. 82770, October 19, 1992, 214 SCRA 678). There must be an unbroken chain of circumstances which leads to one fair
and reasonable conclusion pointing to the defendant to the exclusion of all others, as the author of the crime ( People vs.
Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569).

The circumstances shown by the prosecution which tend to show the guilt of the accused are:
1. A physical demonstration to which the accused and his counsel did not offer any objection shows that despite his being
handicapped, accused Maqueda could well and easily grip a lead pipe and strike a cement post with such force that it
produced a resounding vibration. It is not farfetched then to conclude that accused Maqueda could have easily beat Mr.
Barker to death.

2. His presence within the vicinity of the crime scene right after the incident in the company of accused Salvamante was
testified to by Mike Tayaban, the only prosecution witness who noticed the defective hands of the accused. As they had to
ask for directions from the witness in the Tagalog dialect shows that they were strangers to the place.

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

4. His Motion to Grant Bail (Exhibit "HH") contains this statement "That he is willing and volunteering to be a State witness
in the above-entitled case, it appearing that he is the least guilty among the accused in this case." This in effect, supports
his extrajudicial confession made to the police at Calauag, Quezon Province. Although he claims that he did not bother to
read the motion as he was just told that his signature would mean his release from detention, this is a flimsy excuse which
cannot be given credence. Had he not understood what the motion meant, he could have easily asked his sister and
brother-in-law what it meant seeing that their signatures were already fixed on the motion.

5. This time, his admission to Prosecutor Zarate that he was at the Barker house that fateful morning and his even more
damaging admissions to Ray Dean Salvosa as to what he actually did can be considered as another circumstance to
already bolster the increasing circumstances against the accused.

6. The accused's defense is alibi. As stated in a long line of cases, alibi is at best a weak defense and easy of fabrication
(People vs. Martinado, G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not
only appear that the accused interposing the same was at some other place but also that it was physically impossible for
him to be at the scene of the crime at the time of its commission (People vs. Pugal, G.R. No. 90637, October 29, 1992,
215 SCRA 247). This defense easily crumbles down as prosecution witness Mike Tayaban placed accused Maqueda at
the vicinity of the crime scene.

The combination of all these circumstances plus his extrajudicial confession produce the needed proof beyond reasonable
doubt that indeed accused Maqueda is guilty of the crime. 11

The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit "LL") of Maqueda taken by SPO2 Molleno
immediately after Maqueda was arrested.

Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit him because the trial
court committed this lone error:

. . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME

CHARGED. 12

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

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

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

SEC. 26. Admission of a party. — The act, declaration or omission of party as to a relevant fact may be given in evidence
against him.

xxx xxx xxx

SEC. 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against him.

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

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while
an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection
with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an
acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only
to establish the ultimate fact of guilt. 14

And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless
corroborated by evidence of corpus delicti.

The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken without the assistance of
counsel because it was of the opinion that since an information had already been filed in court against him and he was
arrested pursuant to a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore, taken during
custodial investigation. Hence, Section 12(1), Article III of the Constitution providing as follows:

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

is not applicable, 15 i.e., the police investigation was "no longer within the ambit of a custodial investigation." It heavily
relied on People vs. Ayson 16 where this Court elucidated on the rights of a person under custodial investigation and the
rights of an accused after a case is filed in court. The trial court went on to state:

At the time of the confession, the accused was already facing charges in court. He no longer had the right to remain silent
and to counsel but he had the right to refuse to be a witness and not to have any prejudice whatsoever result to him by
such refusal. And yet, despite his knowing fully well that a case had already been filed in court, he still confessed when he
did not have to do so. 17

The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested under the aforequoted
Section 12(1), Article III of the Constitution, but on the voluntariness of its execution. Since voluntariness is presumed,
Maqueda had the burden of proving otherwise, which he failed to do and, hence, the  Sinumpaang Salaysay was
admissible against him. LexLib

As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court admitted their
testimony thereon only to prove the tenor of their conversation but not to prove the truth of the admission because such
testimony was objected to as hearsay. It said:
In any case, it is settled that when testimony is presented to establish not the truth but the tenor of the statement or the
fact that such statement was made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA
652). 18

While we commend the efforts of the trial court to distinguish between the rights of a person under Section 12(1), Article III
of the Constitution and his rights after a criminal complaint or information had been filed against him, we cannot agree
with its sweeping view that after such filing an accused "no longer, [has] the right to remain silent and to counsel but he
[has] the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal." If this
were so, then there would be a hiatus in the criminal justice process where an accused is deprived of his constitutional
rights to remain silent and to counsel and to be informed of such rights. Such a view would not only give a very restrictive
application to Section 12(1); it would also diminish the said accused's rights under Section 14(2) Article III of
the Constitution.

The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of
the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at
that stage when a person is "under investigation for the commission of an offense." The direct and primary source of this
Section 12(1) is the second paragraph of Section 20, Article II of the 1973 Constitution which reads:

Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and
to be informed of such right . . .

The first sentence to which it immediately follows refers to the rights against self-incrimination reading:

No person shall be compelled to be a witness against himself.

which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second paragraph of Section 20 in
the Bill of Rights of the 1973 Constitution was an acceptance of the landmark doctrine laid down by the United States
Supreme Court in Miranda vs. Arizona. 19 In that case, the Court explicitly stated that the holding therein "is not an
innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It went on
to state its ruling:

Our holding will be spelled out with some specificity in the pages which follow but briefly stated, it is this: the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By
custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be
employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure
a continuous opportunity to exercise it, the following measures are required. Prior to any questioning the person must be
warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of
these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may
not question him. The mere fact that he may have answered some question or volunteered some statements on his own
does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and
thereafter consents to be questioned. 20

It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the
word custodial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, in Galman
vs. Pamaran, 21 this Court aptly observed:

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the
words "under'' and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did
not adopt in toto the entire fabric of the Miranda doctrine. LexLib

Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable
to the investigation for the commission of an offense of a person not in custody. 22 Accordingly, as so formulated, the
second paragraph of Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused only begin
upon arraignment. Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs. Enrile: 24

7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and
he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to
counsel, and that any statement he might make could be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible
— or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any
person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf.
The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence.

Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest
and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him
in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest.
From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second
paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the
commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the present Constitution with
the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b)
if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be
waived except in writing and in the presence of counsel.

Then, too, the right to be heard would be a farce if it did not include the right to counsel. 25 Thus, Section 12(2), Article III
of the present Constitution provides that in all criminal prosecutions the accused shall "enjoy the right to be heard by
himself and counsel." In People vs. Holgado, 26 this Court emphatically declared:

One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to answer for a
criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and
counsel." In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most
intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without
counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And
this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted
by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules
of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask
him whether he desires the aid of an attorney, but it is essential that the court should assign one  de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure an attorney of his own.

It was therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is strictly limited to
custodial investigation and that it does not apply to a person against whom a criminal complaint or information has already
been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court,
then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions
from accused persons after they had been arrested but before they are arraigned because at such stage the accused
persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel. cdll

Once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of
arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant
to the issuing judge, 27 and since the court has already acquired jurisdiction over his person, it would be improper for any
public officer or law enforcement agency to investigate him in connection with the commission of the offense for which he
is charged. If, nevertheless, he is subjected to such investigation, then Section 12(1), Article III of the  Constitution and the
jurisprudence thereon must be faithfully complied with.

The Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the former's arrest was taken in palpable violation of
his rights under Section 12(1), Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not even told
of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such
uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of
the Constitution which reads:

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against
him.

However, the extrajudicial admissions of Maqueda to prosecutor Zarate and to Ray Dean Salvosa stand on a different
footing. These are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made
them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a
state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are
primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away
by government and that government has the duty to protect; 28 or restrictions on the power of government found "not in
the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine
that governmental power is not unlimited." 29 They are the fundamental safeguards against aggressions of arbitrary
power, 30 or state tyranny and abuse of authority. In laying down the principles of the government and fundamental
liberties of the people, the Constitution did not govern the relationships between individuals. 31

Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former
under Section 26, Rule 130 of the Rules of Court. In Aballe vs. People, 32 this Court held that the declaration of an
accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person,
otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what
he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he
gives its substance. By analogy, that rule applies to oral extrajudicial admissions.

To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly stated that "he is
willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the
accused in this case."

In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness,
Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of
alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he
also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa,
his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstancial evidence. The following
circumstances were duly proved in this case:

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

(2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva
as one of two persons who committed the crime;

(3) He and co-accused Rene Salvamante are friends;

(4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September
1991;

(5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and

(6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty."

Section 4, rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

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

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

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision of Branch 10 of the
Regional Trial Court of Benguet in Criminal Case No. 91-CR-1206 is AFFIRMED in toto. LLphil

Costs against accused-appellant HECTOR MAQUEDA @ PUTOL.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 81561. January 18, 1991.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANDRE MARTI, accused-appellant.

DECISION

BIDIN, J p:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX)
convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article II and Section 2 (e)(i),
Article I of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

"On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the
booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them
four (4) gift-wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the
contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and
address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

"Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused,
assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of
appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of
the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8). LLpr

"Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and
husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he
opened appellant's box, a peculiar odor emitted therefrom. His curiosity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took
several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

"Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the
samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

"He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of
Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the
Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job
Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).

"Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents,
opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried
marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).

"The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package
contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also
opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

"The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt"
acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the
Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops
as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs
Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

"THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS
CONTAINED IN THE FOUR PARCELS.

"THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS
UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED. cdphil

"THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW
THE FOUR PARCELS CAME INTO HIS POSSESSION." (Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional
rights against unreasonable search and seizure and privacy of communication (Secs. 2 and 3, Art. III,  Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

"Section 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.

"Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.

"(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding."

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the  1935
Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized." (Sec. 1 [3], Article III).

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court
may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct.
1684, 6 L.Ed. 1081 2d [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any
evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier
adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the
illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to
the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence
obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.),
Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986];
Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the
State acting through the medium of its law enforcers or other authorized government agencies. LLpr

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily
discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of
State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot
be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

"1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether
citizen or alien, from interference by government, included in which is his residence, his papers, and other
possessions . . .

". . . There the state, however powerful, does not as such have the access except under the circumstances above noted,
for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life . . ."
(Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against
unreasonable searches and seizures declared that:

"(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its
protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as
against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served."

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the
automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are
restraints upon the government and its agents, not upon private individuals, (citing People v. Potter, 240 Cal. App.2d 621,
49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

"The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which
appellant stayed overnight and in which he left behind a travel case containing the evidence  *** complained of. The
search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police,
informed them of the bag's contents, and made it available to the authorities.

"The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a
private citizen. Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the latter transgressing
appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be
admitted against him in the prosecution of the offense charged. LLphil

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence
later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to
fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal
search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a
standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122;
167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and
later summoned the agents to his place of business. Thereafter, he opened the parcels containing the rest of the shipment
and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much
less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless
search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search
(Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927];
Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the
police at the specific request of the manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds
support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the
land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech
in the Bill of Rights answers the query which he himself posed, as follows:

"First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy.
Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual
and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What
the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder."
(Sponsorship Speech of Commissioner Bernas; Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against
the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. cdphil

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is
involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and
fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized
that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search
warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced
deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against.
The restraint stayed with the State and did not shift to anyone else.

Corollarily, alleged violations against unreasonable search and seizure may only be invoked against the State by an
individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private
individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal
complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies,
in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and
communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the
undisputed fact that his rights under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate,
as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the
assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is
presumed that they have regularly performed their duties (Sec. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that
appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

"Fiscal Formoso:

"You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused
together with the girl?

"WITNESS:

"Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give
any written statement, sir." (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As
borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while
being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any
reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of
conviction. Appellant's second assignment of error is therefore misplaced. cdphil

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the
packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub
along Ermita, Manila; that in the course of their 30-minute conversation, Michael requested him to ship the packages and
gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to
human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not
have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to
readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the
cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-
so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and
cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously
convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that
the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is
just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original
Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such
as the common experience and observation of mankind can approve as probable under the circumstances (People v.
Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989];
People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did
not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B",
Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more
weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him
(Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise. LexLib

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is
hereby AFFIRMED. No costs.

SO ORDERED.
 SECOND DIVISION

[G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J p:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila
(Branch X) which ordered petitioner to return documents and papers taken by her from private respondent's clinic without
the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic
of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary,
forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged paramours, greeting cards, cancelled checks, diaries, Dr. Martin's
passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and
for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The
case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private
respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in paragraph 3 of
plaintiff's Complaint or those further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and
any person acting in her behalf to immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were
enjoined from "using or submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that
they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court
declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private
respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appeals
affirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled
that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in
evidence and, therefore, their use by petitioner's attorney, Alfonso Felix, Jr., did not constitute malpractice or gross
misconduct. For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private
respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix,
Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the
complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr. which it found to be
"impressed with merit:" 2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

xxx xxx xxx

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was admittedly
an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On
September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to admit the genuineness and authenticity of the
subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes. At that point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati?
Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath. Such verified
admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his
admission. For Cecilia to avail herself of her husband's admission and use the same in her action for legal separation
cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the
documents and papers for the purpose of securing Dr. Martin's admission as to their genuineness and authenticity did not
constitute a violation of the injunctive order of the trial court. By no means does the decision in that case establish the
admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction
issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of
the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition
for certiorari filed by petitioner against the trial court's order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the
privacy of communication and correspondence [to be] inviolable" 3 is no less applicable simply because it is the wife (who
thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public
safety or order requires otherwise, as prescribed by law." 4 Any violation of this provision renders the evidence obtained
inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other
and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed
his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor
wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.  6 Neither
may be examined without the consent of the other as to any communication received in confidence by one from the other
during the marriage, save for specified exceptions. 7 But one thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that
each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.
 EN BANC

[G.R. No. 181881. October 18, 2011.]

BRICCIO "Ricky" A. POLLO, petitioner,vs.CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV

RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY
D. UNITE AND THE CIVIL SERVICE COMMISSION, respondents.

DECISION

VILLARAMA, JR., J p:

This case involves a search of office computer assigned to a government employee who was charged administratively
and eventually dismissed from the service. The employee's personal files stored in the computer were used by the
government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision 1 dated
October 11, 2007 and Resolution 2 dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition
for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by
the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the
best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge
of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the
CSC.

On January 3, 2007 at around 2:30 p.m.,an unsigned letter-complaint addressed to respondent CSC Chairperson Karina
Constantino-David which was marked "Confidential" and sent through a courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the
CSC Central Office. Following office practice in which documents marked "Confidential" are left unopened and instead
sent to the addressee, the aforesaid letter was given directly to Chairperson David. ATDHSC

The letter-complaint reads:

The Chairwoman

Civil Service Commission

Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of
your agency to be a lawyer of an accused gov't employee having a pending case in the csc. I honestly think this is a
violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the
Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The
justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of
your clean and good office is being tainted.

Concerned Govt employee 3

Chairperson David immediately formed a team of four personnel with background in information technology (IT), and
issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found
in the Mamamayan Muna (PALD) and Legal divisions." 4 After some briefing, the team proceeded at once to the CSC-
ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of
the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite)
of Chairperson David's directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by
several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00
p.m.,Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time,
informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text
messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If
you can make it here now it would be better."

"All PCs of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can't do anything about ...it ...it's a directive from chair."

"Memo of the chair was referring to an anonymous complaint";"ill send a copy of the memo via mms" 5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer.
Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main
office: "Sir may mga taga C.O. daw sa kuarto natin." 6 At around 10:00 p.m. of the same day, the investigating team
finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all
the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD
computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSC's Office for
Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters  7 in
connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David
issued the Show-Cause Order 8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to
submit his explanation or counter-affidavit within five days from notice. DIEAHc

Evaluating the subject documents obtained from petitioner's personal files, Chairperson David made the following
observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative
cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or
other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing
charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the
central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government
service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated
practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary practice without any
consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these
draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and
disposition. 9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no
attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused
CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer,
and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that
he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007
in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives,
friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would
violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of the computer issued under a
Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In
view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as
evidence, being "fruits of a poisonous tree." 10

On February 26, 2007, the CSC issued Resolution No. 070382 11 finding prima facie case against the petitioner and
charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation
of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to
submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the
charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension
effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1,
2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as
without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and
alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one
time or another, to make use of his computer out of close association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner's CPU and Atty. Eric N. Estrellado,
the latter being Atty. Solosa's client who attested that petitioner had nothing to do with the pleadings or bill for legal fees
because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against
Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the
preventive suspension imposed on him. In its Resolution No. 070519 12 dated March 19, 2007, the CSC denied the
omnibus motion. The CSC resolved to treat the said motion as petitioner's answer.  

On March 14, 2007, petitioner filed an Urgent Petition 13 under Rule 65 of the Rules of Court, docketed as CA-G.R. SP
No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007
as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this,
however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida
(Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and
a separate complaint for disbarment against Director Buensalida. 14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April
30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary
injunction. 15 Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same
to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference
shall entitle the prosecution to proceed with the formal investigation ex-parte. 16 Petitioner moved to defer or to reset the
pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of
his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007
with similar warning on the consequences of petitioner and/or his counsel's non-appearance. 17 This prompted petitioner
to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt. 18

On June 12, 2007, the CSC issued Resolution No. 071134 19 denying petitioner's motion to set aside the denial of his
motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing
officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to
have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420, 20 the dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo
GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation
of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties,
namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and
bar from taking future civil service examinations. 21

On the paramount issue of the legality of the search conducted on petitioner's computer, the CSC noted the dearth of
jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an
employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible
misconduct committed by said employee and without the latter's consent or participation. The CSC thus turned to relevant
rulings of the United States Supreme Court, and cited the leading case of O'Connor v. Ortega 22 as authority for the view
that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and
seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search and
seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons 23 which declared
that the federal agency's computer use policy foreclosed any inference of reasonable expectation of privacy on the part of
its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondent's
legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the
employee's office was upheld as valid because a government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and
scope. CaDEAT

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of
privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even
assuming that there was no such administrative policy, the CSC was of the view that the search of petitioner's computer
successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited
authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant
requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then
ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified
petitioner's dismissal from the service with all its accessory penalties.

In his Memorandum 24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the
service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise
prayed for the inclusion of Resolution No. 071800 25 which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion
committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous
letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded
a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioner's computer and
later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer
policy declaring the computers as government property and that employee-users thereof have no reasonable expectation
of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous
in CSC's act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that —

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND
BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS
AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY,
TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY
RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS
INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED
TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF
FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE
OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN
HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF O.M. 10 s.
2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID
NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE
1987 PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL
EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT
MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO. 26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his
personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution, 27 which 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. 

The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches and
seizures. 28 But to fully understand this concept and application for the purpose of resolving the issue at hand, it is
essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared
in People v. Marti: 29

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935
Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized." (Sec. 1[3],Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States  Constitution. As such, the Court
may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction. 30

In the 1967 case of Katz v. United States, 31 the US Supreme Court held that the act of FBI agents in electronically
recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and
constituted a "search and seizure". Because the petitioner had a reasonable expectation of privacy in using the enclosed
booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable (objective). 32

In Mancusi v. DeForte 33 which addressed the reasonable expectations of private employees in the workplace, the US
Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters
that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus
"recognized that employees may have a reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of O'Connor v.
Ortega 34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program,
sexual harassment of female hospital employees and other irregularities involving his private patients under the state
medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the
Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer." 35 A plurality of four Justices concurred that the correct analysis has two
steps: first, because "some government offices may be so open to fellow employees or the public that no expectation of
privacy is reasonable", a court must consider "[t]he operational realities of the workplace" in order to determine whether
an employee's Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy
expectation, an employer's intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of reasonableness under all the
circumstances." 36 AIcECS

On the matter of government employees' reasonable expectations of privacy in their workplace, O'Connor teaches:

...Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of
employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate
regulation. ...The employee's expectation of privacy must be assessed in the context of the employment relation. An office
is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead,
in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government offices that others — such as fellow
employees, supervisors, consensual visitors, and the general public — may have frequent access to an individual's office.
We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does
not disappear merely because the government has the right to make reasonable intrusions in its capacity as
employer," ...but some government offices may be so open to fellow employees or the public that no expectation
of privacy is reasonable. ...Given the great variety of work environments in the public sector, the question of
whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis. 37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega's Fourth
Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy that
society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share
his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office
while those work-related files (on physicians in residency training) were stored outside his office, and there being no
evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing
personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any
expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable
expectation of privacy at least in his desk and file cabinets. 38
Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the O'Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply
concluded without discussion that the "search ...was not a reasonable search under the fourth amendment." ..."[t]o hold
that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the
standards governing such searches ...[W]hat is reasonable depends on the context within which a search takes
place. ...Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination
of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality
of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests
alleged to justify the intrusion." ...In the case of searches conducted by a public employer, we must balance the
invasion of the employees' legitimate expectations of privacy against the government's need for supervision,
control, and the efficient operation of the workplace.

xxx xxx xxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk,
or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly
burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no
reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have
required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of
criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these
circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that
government offices could not function if every employment decision became a constitutional matter." ... cCHITA

xxx xxx xxx

The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if
employers were required to have probable cause before they entered an employee's desk for the purpose of finding a file
or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal
investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly,
the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of
securing state property. ...To ensure the efficient and proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee
misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal
need for law enforcement." ...Public employers have an interest in ensuring that their agencies operate in an effective and
efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement,
or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with
tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public
interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the
criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is
conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the
type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee
misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into
tangible and often irreparable damage to the agency's work, and ultimately to the public interest. ... 

xxx xxx xxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement make the ...probable-
cause requirement impracticable," ...for legitimate, work-related noninvestigatory intrusions as well as
investigations of work-related misconduct.A standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions
upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally
protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct,should be judged by the standard of reasonableness under all the
circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be
reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider 'whether the ...action
was justified at its inception,' ...;second, one must determine whether the search as actually conducted 'was reasonably
related in scope to the circumstances which justified the interference in the first place,'" ...

Ordinarily, a search of an employee's office by a supervisor will be "justified at its inception" when there are
reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-
related misconduct, or that the search is necessary for a noninvestigatory work-related purpose  such as to
retrieve a needed file. ...The search will be permissible in its scope when "the measures adopted are reasonably
related to the objectives of the search and not excessively intrusive in light of ...the nature of the
[misconduct]." ...39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the
search and neither was there any finding made as to the scope of the search that was undertaken, the case was
remanded to said court for the determination of the justification for the search and seizure, and evaluation of the
reasonableness of both the inception of the search and its scope.

In O'Connor the Court recognized that "special needs" authorize warrantless searches involving public employees for
work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against
the employee's reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the
warrant requirement, which are related to law enforcement. 40

O'Connor was applied in subsequent cases raising issues on employees' privacy rights in the workplace. One of these
cases involved a government employer's search of an office computer, United States v. Mark L. Simons 41 where the
defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and
possessing materials containing child pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access. The agency had instituted a policy on computer use stating that employees
were to use the Internet for official government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or
monitor the user's Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the
agency's computer network, upon initial discovery of prohibited internet activity originating from Simons' computer, to
conduct a remote monitoring and examination of Simons' computer. After confirming that Simons had indeed downloaded
pictures that were pornographic in nature, all the files on the hard drive of Simon's computer were copied from a remote
work station. Days later, the contractor's representative finally entered Simon's office, removed the original hard drive on
Simon's computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons' office in the evening when Simons was not around. The search team  copied the
contents of Simons' computer; computer diskettes found in Simons' desk drawer; computer files stored on the zip drive or
on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved
to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights.
After a hearing, the district court denied the motion and Simons was found guilty as charged. CDAcIT

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons' computer and office did not
violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under
the O'Connor exception to the warrant requirement because evidence of the crime was discovered in the course of an
otherwise proper administrative inspection. Simons' violation of the agency's Internet policy happened also to be a
violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The
warrantless entry into Simons' office was reasonable under the Fourth Amendment standard announced
in O'Connor because at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard
drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet
access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the
objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation
of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer.
...To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized. ...And, in order to prove a legitimate expectation of
privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as
objectively reasonable. ...

xxx xxx xxx

...We conclude that the remote searches of Simons' computer did not violate his Fourth Amendment rights because, in
light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet.
Additionally, we conclude that Simons' Fourth Amendment rights were not violated by FBIS' retrieval of Simons' hard drive
from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in
light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor"
employees' use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as
deemed appropriate." ...This policy placed employees on notice that they could not reasonably expect that their Internet
activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from
the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing
his Internet use. ...Accordingly, FBIS' actions in remotely searching and seizing the computer files Simons downloaded
from the Internet did not violate the Fourth Amendment.

xxx xxx xxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office ....Here, Simons has
shown that he had an office that he did not share. As noted above, the operational realities of Simons' workplace may
have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace
practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record,  Simons
possessed a legitimate expectation of privacy in his office.

xxx xxx xxx

In the final analysis, this case involves an employee's supervisor entering the employee's government office and retrieving
a piece of government equipment in which the employee had absolutely no expectation of privacy — equipment that the
employer knew contained evidence of crimes committed by the employee in the employee's office. This situation may be
contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there
was a conjunction of the conduct that violated the employer's policy and the conduct that violated the criminal law. We
consider that FBIS' intrusion into Simons' office to retrieve the hard drive is one in which a reasonable employer might
engage. ...42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board 43 which involved the constitutionality of a provision
in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with
certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug
testing, which effects a search within the meaning of Sec. 2, Art. III of the  Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of
drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the
company's work policies, the collective bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement
upon such privacy has been upheld. (Emphasis supplied.) ADCETI 

Applying the analysis and principles announced in O'Connor and Simons to the case at bar, we now address the following
questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?;and (2) Was the
search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner's computer reasonable in
its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee's relationship to the item
seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the item." These factors are relevant to both the subjective and objective
prongs of the reasonableness inquiry, and we consider the two questions together. 44 Thus, where the employee used a
password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the Fourth
Amendment. 45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy
either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had
a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other
employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees
from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV,
he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to
use his computer which to him seemed a trivial request. He described his office as "full of people, his friends, unknown
people" and that in the past 22 years he had been discharging his functions at the PALD, he is "personally assisting
incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan
Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself
alone, that in fact he stays in the office as a paying customer." 46 Under this scenario, it can hardly be deduced that
petitioner had such expectation of privacy that society would recognize as reasonable. aASDTE

Moreover, even assuming arguendo,in the absence of allegation or proof of the aforementioned factual circumstances,
that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the
presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate
business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxx xxx xxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in
anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the
confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on
the computer through the Internet or any other computer network.Users understand that the CSC may use human or
automated means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of
a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users.However,
he is accountable therefor and must insure its care and maintenance.

xxx xxx xxx

Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer
system. Individual passwords shall not be printed, stored online, or given to others.  Users shall be responsible for all
transactions made using their passwords. No User may access the computer system with another User's password or
account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files
or messages does not imply that Users have an expectation of privacy in the material they create or receive on the
computer system.The Civil Service Commission has global passwords that permit access to all materials stored on its
networked computer system regardless of whether those materials have been encoded with a particular User's password.
Only members of the Commission shall authorize the application of the said global passwords. TCEaDI

xxx xxx xxx 47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy
in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-the-spot inspections may be done to
ensure that the computer resources were used only for such legitimate business purposes.

One of the factors stated in O'Connor which are relevant in determining whether an employee's expectation of privacy in
the workplace is reasonable is the existence of a workplace privacy policy. 48 In one case, the US Court of Appeals
Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his
computer files where the university's computer policy, the computer user is informed not to expect privacy if the university
has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be
searched when the university is responding to a discovery request in the course of litigation. Petitioner employee thus
cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials. 49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner's computer, we answer in
the affirmative.

The search of petitioner's computer files was conducted in connection with investigation of work-related misconduct
prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with
pending cases in the CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources
adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in
another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and
involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an
investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the
alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity
of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public
Assistance and Liaison Division (PALD) and Legal Division;

xxx xxx xxx 50

A search by a government employer of an employee's office is justified at inception when there are reasonable grounds
for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. 51 Thus, in the 2004
case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agency's computer use
policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not
have any personal privacy rights regarding their use of the agency information systems and technology,the government
employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore
evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that
case, the defendant employee's computer hard drive was first remotely examined by a computer information technician
after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail
messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken
and examined. A formal administrative investigation ensued and later search warrants were secured by the police
department. The initial remote search of the hard drive of petitioner's computer, as well as the subsequent warrantless
searches was held as valid under the O'Connor ruling that a public employer can investigate work-related misconduct so
long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the
first place. 52 CAHaST 

Under the facts obtaining, the search conducted on petitioner's computer was justified at its inception and scope. We
quote with approval the CSC's discussion on the reasonableness of its actions, consistent as it were with the guidelines
established by O'Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission
that the search of Pollo's computer has successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued
the search in its capacity as a government employer and that it was undertaken in connection with an
investigation involving a work-related misconduct,one of the circumstances exempted from the warrant requirement.
At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was
"lawyering" for parties having pending cases with the said regional office or in the Commission.  The nature of the
imputation was serious, as it was grievously disturbing.If, indeed, a CSC employee was found to be furtively
engaged in the practice of "lawyering" for parties with pending cases before the Commission would be a highly repugnant
scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling
its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative
tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any
trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast,if only to arrest or limit any
possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was
forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that
were subjected to the search was justified since these furnished the easiest means for an employee to encode
and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating
evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click
of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable
cause requirement would invariably defeat the purpose of the work-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent
manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe
the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the
search and the concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any
way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an
employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its
employees. Consequently, the evidence derived from the questioned search are deemed admissible. 53

Petitioner's claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the
privacy of communication and correspondence under Section 3 (1),Article III of the 1987 Constitution is also untenable
considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government
workplace under the aforecited authorities. We likewise find no merit in his contention that  O'Connor and Simons are not
relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the
search of petitioner's computer was justified there being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such
misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in O'Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court,
Metropolitan Trial Court of Manila 54 involving a branch clerk (Atty. Morales) who was investigated on the basis of an
anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office
supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to
access Atty. Morales' personal computer and print two documents stored in its hard drive, which turned out to be two
pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales'
computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the
MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was
no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would
give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel
also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct.
The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court
employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his
constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of
OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately
filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the
investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no
other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to
hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of
evidence. TacADE

The above case is to be distinguished from the case at bar because, unlike the former which involved
a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is
a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and
circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer
assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative
case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the
charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but
even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant
evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable
minds might conceivably opine otherwise. 55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents
stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the
formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-
wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission
Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his
computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his
computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We
hold that the CSC's factual finding regarding the authorship of the subject pleadings and misuse of the office computer is
well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions
or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for
reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the
promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance
in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an
inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing the same for the money — a "legal mercenary" selling or
purveying his expertise to the highest bidder, so to speak. 

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he
was the author thereof. This is because he had a control of the said computer. More significantly, one of the
witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records
lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of
Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal
files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record
during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect.
Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that
during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes
more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she
personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the
formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of
weight and credence. The same is true with the other supporting affidavits, which Pollo submitted. cAHIST

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully
authorizing private persons to use the computer assigned to him for official purpose, not only once but several times
gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect,
acting as a principal by indispensable cooperation ...Or at the very least, he should be responsible for serious misconduct
for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what
they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the
documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein,
Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too
preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to
the respondent, unless he had something to do with it? 56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8
of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II — Disciplinary Cases

SEC. 8. Complaint. — A complaint against a civil service official or employee shall not be given due course unless it is in
writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining
authority,the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or
supported by documentary or direct evidence, in which case the person complained of may be required to comment.

xxx xxx xxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the
CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in
the two divisions adverted to in the anonymous letter — as part of the disciplining authority's own fact-finding investigation
and information-gathering — found a prima facie case against the petitioner who was then directed to file his comment. As
this Court held in Civil Service Commission v. Court of Appeals 57 —
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on
Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by
the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as
the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis
supplied.)

As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP),the same deserves scant consideration. The
alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission
as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by
Chairperson David in her Reply to the Addendum to Commissioner Buenaflor's previous memo expressing his dissent to
the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was
in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and
former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a
Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been
to issue a memorandum order. 58 Moreover, being an administrative rule that is merely internal in nature, or which
regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity. 59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC's ruling that petitioner is guilty
of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of  R.A. No. 6713. The
gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory
penalties, pursuant to existing rules and regulations. acHCSD

WHEREFORE,the petition for review on certiorari is DENIED.The Decision dated October 11, 2007 and Resolution dated
February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.
 SECOND DIVISION

[G.R. Nos. 133254-55. April 19, 2001.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO SALANGUIT y KO, accused-appellant.

DECISION

MENDOZA, J p:

This is an appeal from the decision, 1 dated January 27, 1998, of the Regional Trial Court, Branch 96, Quezon City,
finding accused-appellant Roberto Salanguit y Ko guilty of violation of §16 of  Republic Act No. 6425, as amended, and
sentencing him accordingly to suffer imprisonment ranging from six (6) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum, and of §8 of the same law and sentencing him for such
violation to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00.

Charges against accused-appellant for violations of R.A. No. 6425 were filed on December 28, 1995. In Criminal Case
No. Q-95-64357, the information alleged:

That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused, did then and there
willfully, unlawfully and knowingly possess and/or use 11.14 grams of Methamphetamine Hydrochloride (Shabu) a
regulated drug, without the necessary license and/or prescription therefor, in violation of said law.

CONTRARY TO LAW. 2

In Criminal Case No. Q-95-64358, the information charged:

That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused not being authorized by
law to possess or use any prohibited drug, did, then and there willfully, unlawfully and knowingly have in his possession
and under his custody and control 1,254 grams of Marijuana, a prohibited drug. aSECAD

CONTRARY TO LAW. 3

When arraigned on May 21, 1996, accused-appellant pleaded not guilty, 4 whereupon he was tried.

Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and chief of the Physical
Science Branch of the Philippine National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics
Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City, a field operative.
The prosecution evidence established the following:

On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional Trial Court, Branch 90, Dasmariñas,
Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City.
He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12
grams of shabu from accused-appellant. The sale took place in accused-appellant's room, and Badua saw that
the shabu was taken by accused-appellant from a cabinet inside his room. The application was granted, and a search
warrant was later issued by Presiding Judge Dolores L. Español.

At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with one civilian informer, went to the
residence of accused-appellant to serve the warrant. 6

The police operatives knocked on accused-appellant's door, but nobody opened it. They heard people inside the house,
apparently panicking. The police operatives then forced the door open and entered the house. 7

After showing the search warrant to the occupants of the house, Lt. Cortes and his group started searching the
house. 8 They found 12 small heat-sealed transparent plastic bags containing a white crystalline substance, a paper clip
box also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrapped
in newsprint 9 having a total weight of approximately 1,255 grams. 10 A receipt of the items seized was prepared, but the
accused-appellant refused to sign it. 11
After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning, Quezon City,
along with the items they had seized. 12

PO3 Duazo requested a laboratory examination of the confiscated evidence. 13 The white crystalline substance with a
total weight of 2.77 grams and those contained in a small box with a total weight of 8.37 grams were found to be positive
for methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves, one weighing 425 grams and the
other 850 grams, were found to be marijuana. 14

For the defense, accused-appellant testified in his own behalf. His testimony was corroborated by his mother-in-law,
Soledad Arcano.

Accused-appellant testified that on the night of December 26, 1995, as they were about to leave their house, they heard a
commotion at the gate and on the roof of their house. Suddenly, about 20 men in civilian attire, brandishing long firearms,
climbed over the gate and descended through an opening in the roof. 15

When accused-appellant demanded to be shown a search warrant, a piece of paper inside a folder was waved in front of
him. As accused-appellant fumbled for his glasses, however, the paper was withdrawn and he had no chance to read
it. 16

Accused-appellant claimed that he was ordered to stay in one place of the house while the policemen conducted a
search, forcibly opening cabinets and taking his bag containing money, a licensed .45 caliber firearm, jewelry, and canned
goods. 17

The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accused-appellant, took
him with them to the NARCOM on EDSA, Quezon City, where accused-appellant was detained. 18

Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony. Arcano testified that the policemen
ransacked their house, ate their food, and took away canned goods and other valuables. 19

After hearing, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered:

1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425, as amended, finding the accused
ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly
sentenced to suffer an indeterminate sentence with a minimum of six (6) months of arresto mayor and a maximum of four
(4) years and two (2) months of prision correccional; and,

2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as amended, finding the accused
ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly
sentenced to suffer reclusion perpetua and to pay a fine of P700,000.00.

The accused shall further pay the costs of suit.

The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of marijuana bricks are hereby confiscated and
condemned for disposition according to law. The evidence custodian of this Court is hereby directed to turn such
substances over to the National Bureau of Investigation pursuant to law.

SO ORDERED. 20

Hence this appeal. Accused-appellant contends that —

THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT VALID

THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR ILLEGAL POSSESSION OF

METHAMPHETAMINE HYDRO-CHLORIDE (SHABU)

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT FOR VIOLATION §8, R.A. NO. 6425
THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS OF MARIJUANA

THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED EXCESSIVE FORCE IN ENFORCING
THE SEARCH WARRANT.

Accused-appellant is contesting his conviction on three grounds. First, the admissibility of the shabu allegedly recovered
from his residence as evidence against him on the ground that the warrant used in obtaining it was invalid. Second, the
admissibility in evidence of the marijuana allegedly seized from accused-appellant pursuant to the "plain view" doctrine.
Third, the employment of unnecessary force by the police in the execution of the warrant.

First. Rule 126, §4 of the Revised Rules on Criminal Procedure 21 provides that a search warrant shall not issue except
upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines.

In issuing a search warrant, judges must comply strictly with the requirements of the  Constitution and the Rules of
Criminal Procedure. No presumption of regularity can be invoked in aid of the process when an officer undertakes to
justify its issuance. 22 Nothing can justify the issuance of the search warrant unless all the legal requisites are fulfilled.

In this case, the search warrant issued against accused-appellant reads:

SEARCH WARRANT NO. 160

For: Violation of RA 6425

SEARCH WARRANT

TO ANY PEACE OFFICER:

GREETINGS:

It appearing to the satisfaction of the undersigned after examining under oath SR. INSP. RODOLFO V. AGUILAR, PNP
and his witness SPO1 EDMUND M. BADUA, PNP that there is probable cause to believe that ROBERT SALANGUIT has
in his possession and control in his premises Binhagan St., San Jose, Quezon City as shown in Annex "A", the properties
to wit: TcIAHS

UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA

which should be seized and brought to the undersigned.

You are hereby commanded to make an immediate search anytime of the day/night of the premises above-described and
forthwith seize and take possession of the above-stated properties and bring said properties to the undersigned to be
dealt with as the law directs.

GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite, Philippines.

(SGD.) DOLORES L. ESPAÑOL

Judge

Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable cause to search for
drug paraphernalia; (2) that the search warrant was issued for more than one specific offense; and (3) that the place to be
searched was not described with sufficient particularity.

Existence of Probable Cause

The warrant authorized the seizure of "undetermined quantity of shabu and drug paraphernalia." Evidence was presented
showing probable cause of the existence of methamphetamine hydrochloride or shabu. Accused-appellant contends,
however, that the search warrant issued is void because no evidence was presented showing the existence of drug
paraphernalia and the same should not have been ordered to be seized by the trial court. 23
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as a poseur-buyer, did
not testify in the proceedings for the issuance of a search warrant on anything about drug paraphernalia. He stated:

Q Being a member of the Intelligence and Operation Section, NMDU, NARCOM, do you remember if you were assigned
into a monitoring or surveillance work?

A Yes, sir.

Q Of what particular assignment or area were you assigned for monitoring or surveillance?

A Its within the Quezon City area particularly a house without a number located at Binhagan St., San Jose, Quezon City,
sir.

Q Do you know the person who occupies the specific place?

A Yes, sir, he is ROBERT SALANGUIT @ Robert.

Q Are you familiar with that place?

A Yes, sir, as part of my surveillance, I was able to penetrate inside the area and established contract with ROBERT
SALANGUIT alias Robert through my friend who introduced me to the former.

Q In what particular occasion did you meet ROBERT SALANGUIT alias Robert?

A When I was introduced by my friend as a good buyer and drug pusher of shabu, sir.

Q Were you able to buy at that time?

A Yes, sir.

Q How much if you can still remember the amount involved?

A I was able to buy two point twelve (2.12) grams of shabu in the amount of Two Thousand Seven Hundred Fifty
(P2,750.00) pesos, sir.

Q Having established contact with ROBERT SALANGUIT @ Robert, do you know where the stuff (shabu) were being
kept?

A Yes, sir, inside a cabinet inside his room.

Q How were you able to know the place where he kept the stuff?

A When I first bought the 2.12 grams of shabu from him, it was done inside his room and I saw that the shabu was taken
by him inside his cabinet.

Q Do you know who is in control of the premises?

A Yes, sir, it was ROBERT SALANGUIT @ Robert.

Q How sure are you, that the shabu that you bought from ROBERT SALANGUIT @ Robert is genuine shabu?

A After I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to our office and reported the progress of
my mission to our Chief and presented to him the 2.12 grams of shabu I bought from the subject. Then afterwards, our
Chief formally requested the Chief PNP Central Crime Laboratory Services, NPDC, for Technical Analysis which yielded
positive result for shabu, a regulated drug as shown in the attached certification of PNP CLS result No. D-414-95 dated 19
Dec. 95.

Q Do you have anything more to add or retract from your statement?
A Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I wish to buy bigger quantity of shabu, he
is willing to transact to me on cash basis at his price of One Thousand Seven Hundred Fifty (P1,750.00) pesos per gram.

Q Are you willing to sign your statement freely and voluntarily?

A Yes, sir. 24

However, the fact that there was no probable cause to support the application for the seizure of drug paraphernalia does
not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in
fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the
search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of
methamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Thus,
in Aday v. Superior Court, 25 the warrant properly described two obscene books but improperly described other articles. It
was held:

Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such a
conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned
merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable
from the authorization relating to the named books, which formed the principal basis of the charge of obscenity. The
search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles
. . . In so holding we do not mean to suggest that invalid portions of a warrant will be treated as severable under all
circumstances. We recognize the danger that warrants might be obtained which are essentially general in character but
as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the
expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant
procedure, of course, could not be tolerated.

It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the
items to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search for
other items not supported by the evidence. 26 Accordingly, we hold that the first part of the search warrant, authorizing
the search of accused-appellant's house for an undetermined quantity of shabu, is valid, even though the second part,
with respect to the search for drug paraphernalia, is not.

Specificity of the Offense Charged

Accused-appellant contends that the warrant was issued for more than one specific offense because possession or use of
methamphetamine hydrochloride and possession of drug paraphernalia are punished under two different provisions
of R.A. No. 6425. 27 It will suffice to quote what this Court said in a similar case to dispose of this contention:

While it is true that the caption of the search warrant states that it is in connection with "Violation of  R.A. 6425, otherwise
known as the Dangerous Drugs Act of 1972 ," it is clearly recited in the text thereof that "There is probable cause to
believe that Adolfo Olaes alias 'Debie' and alias 'Baby' of No. 628 Comia St., Filtration, Sta. Rita, Olongapo City, has in
their session and control and custody of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and
exempt narcotics preparations which is the subject of the offense stated above." Although the specific section of
the Dangerous Drugs Act is not pinpointed, there is no question at all of the specific offense alleged to have been
committed as a basis for the finding of probable cause. The search warrant also satisfies the requirement in the Bill of
Rights of the particularity of the description to be made of the "place to be searched and the persons or things to be
seized." 28

Indeed, in People v. Dichoso 29 the search warrant was also for "Violation of R.A. 6425," without specifying what
provisions of the law were violated, and it authorized the search and seizure of "dried marijuana leaves and
methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however, upheld the validity of the
warrant:

Appellant's contention that the search warrant in question was issued for more than (1) offense, hence, in violation
of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since
illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by
different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1)
specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal
possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia.
This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs
which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are
closely related or which belong to the same class or species. Accordingly, one (1) search warrant may thus be validly
issued for the said violations of the Dangerous Drugs Act. 30

Similarly, in another case, 31 the search warrant was captioned: "For Violation of P.D. No. 1866 (Illegal Possession of
Firearms, etc.)." The validity of the warrant was questioned on the ground that it was issued without reference to any
particular provision in P.D. No. 1866, which punished several offenses. We held, however, that while illegal possession of
firearms is penalized under §1 of P.D. No. 1866 and illegal possession of explosives is penalized under §3 thereof, the
decree is a codification of the various laws on illegal possession of firearms, ammunitions, and explosives which offenses
are so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. Thus,
only one warrant was necessary to cover the violations under the various provisions of the said law.

Particularity of the Place

Accused-appellant contends that the search warrant failed to indicate the place to be searched with sufficient particularity.

This contention is without merit. As the Solicitor General states:

. . . While the address stated in the warrant is merely "Binhagan St., San Jose, Quezon City," the trial court took note of
the fact that the records of Search Warrant Case No. 160 contained several documents which identified the premises to
be searched, to wit: 1) the application for search warrant which stated that the premises to be searched was located in
between No. 7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition of witness which described the
premises as "a house without a number located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the
location of the premises to be searched. In fact, the police officers who raided appellant's house under the leadership of
Police Senior Inspector Rodolfo Aguilar could not have been mistaken as Inspector Aguilar resides in the same
neighborhood in Binhagan where appellant lives and in fact Aguilar's place is at the end of appellant's place in Binhagan.
Moreover, the house raided by Aguilar's team is undeniably appellant's house and it was really appellant who was the
target. The raiding team even first ascertained through their informant that appellant was inside his residence before they
actually started their operation. 32

The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended to be searched. 33 For example, a search warrant authorized a search of
Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were five
apartments in the basement and six apartments on both the ground and top floors and that there was an Apartment
Number 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting the
warrant that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass."  34 In this
case, the location of accused-appellant's house being indicated by the evidence on record, there can be no doubt that the
warrant described the place to be searched with sufficient particularity.

In sum, we hold that with respect to the seizure of shabu from accused-appellant's residence, Search Warrant No. 160
was properly issued, such warrant being founded on probable cause personally determined by the judge under oath or
affirmation of the deposing witness and particularly describing the place to be searched and the things to be seized.

Second. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but not marijuana.
However, seizure of the latter drug is being justified on the ground that the drug was seized within the "plain view" of the
searching party. This is contested by accused-appellant.

Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who has the right to be in the position
to have that view are subject to seizure and may be presented in evidence. 35 For this doctrine to apply, there must be:
(a) prior justification; (b) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the evidence
before the police. 36 The question is whether these requisites were complied with by the authorities in seizing the
marijuana in this case.

Prior Justification and Discovery by Inadvertence

Because the location of the shabu was indicated in the warrant and thus known to the police operatives, it is reasonable to
assume that the police found the packets of the shabu first. Once the valid portion of the search warrant has been
executed, the "plain view doctrine" can no longer provide any basis for admitting the other items subsequently found. As
has been explained:

What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine
serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused
— and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to
extend a general exploratory search from one object to another until something incriminating at last emerges. 37

The only other possible justification for an intrusion by the police is the conduct of a search pursuant to accused-
appellant's lawful arrest for possession of shabu. However, a search incident to a lawful arrest is limited to the person of
the one arrested and the premises within his immediate control. 38 The rationale for permitting such a search is to prevent
the person arrested from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy
it. AHDcCT

The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or contemporaneous
with, the shabu subject of the warrant, or whether it was recovered on accused-appellant's person or in an area within his
immediate control. Its recovery, therefore, presumably during the search conducted after the  shabu had been recovered
from the cabinet, as attested to by SPO1 Badua in his deposition, was invalid.

Apparent Illegality of the Evidence

The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure. This case is
similar to People v. Musa 39 in which we declared inadmissible the marijuana recovered by NARCOM agents because
the said drugs were contained in a plastic bag which gave no indication of its contents. We explained:

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its
contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the
NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view"
of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, is transparency, or otherwise, that its contents are obvious to an observer. 40

No presumption of regularity may be invoked by an officer in aid of the process when he undertakes to justify an
encroachment of rights secured by the Constitution. 41 In this case, the marijuana allegedly found in the possession of
accused-appellant was in the form of two bricks wrapped in newsprint. Not being in a transparent container, the contents
wrapped in newsprint could not have been readily discernible as marijuana. Nor was there mention of the time or manner
these items were discovered. Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without
a warrant was conducted in accordance with the "plain view doctrine," we hold that the marijuana is inadmissible in
evidence against accused-appellant. However, the confiscation of the drug must be upheld.

Third. Accused-appellant claims that undue and unnecessary force was employed by the searching party in effecting the
raid.

Rule 126, §7 of the Revised Rules on Criminal Procedure 42 provides:

Right to break door or window to effect search. — The officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a
house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully
detained therein.
Accused-appellant's claim that the policemen had clambered up the roof of his house to gain entry and had broken doors
and windows in the process is unsupported by reliable and competent proof. No affidavit or sworn statement of
disinterested persons, like the barangay officials or neighbors, has been presented by accused-appellant to attest to the
truth of his claim.

In contrast, Aguilar and Duano's claim that they had to use some force in order to gain entry cannot be doubted. The
occupants of the house, especially accused-appellant, refused to open the door despite the fact that the searching party
knocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside the
house. These circumstances justified the searching party's forcible entry into the house, founded as it is on the
apprehension that the execution of their mission would be frustrated unless they do so.

WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court, Branch 96, Quezon City,
finding accused-appellant Roberto Salanguit y Ko guilty of possession of illegal drugs under §16 of  R.A. No. 6425,
otherwise known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a prison term ranging from six
(6) months of arresto mayor, as minimum, and four (4) years and two (2) months of prision correccional, as maximum,
and ordering the confiscation of 11.14 grams of methamphetamine hydrochloride is AFFIRMED.

In Criminal Case No. Q-95-64358, the decision of the same court finding accused-appellant Roberto Salanguit y Ko guilty
of possession of prohibited drugs under §8 of R.A. No. 6425, as amended, and sentencing him to suffer the penalty
of reclusion perpetua and to pay a fine of P700,000.00 is hereby REVERSED and SET ASIDE and accused-appellant is
ACQUITTED of the crime charged. However, the confiscation of the 1,254 grams of marijuana, as well as the 11.14
grams of methamphetamine hydrochloride, and its disposition as ordered by the trial court is AFFIRMED.

SO ORDERED

THIRD DIVISION
[G.R. No. 96177. January 27, 1993.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARI MUSA y HANTATALU, accused-appellant.

DECISION

ROMERO, J p:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the Regional
Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4
of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

"That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell
to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug.

CONTRARY TO LAW." 2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command
(NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2)
T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the
buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime
Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as
follows: LLjur

"Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS
COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and
test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this
Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to
Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer
had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was able
to buy one newspaper-wrapped dried marijuana (Exh. 'E') for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and
found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the
poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-bust money had been
taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for which Belarga signed
a receipt (Exh. 'L' & 'L-1'). The team under Sgt. Foncargas was assigned as back-up security. A pre-arranged signal was
arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM
teams proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader,
Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.

Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned
themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on
between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and
asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After
receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper wrappers
containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were
marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two
civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and
two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the
NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from
the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then
asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away).
Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then
placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two
newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. 'C' & 'D'). LexLib

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name - Mari
Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one
newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been
taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory
examination. The turnover of the marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated
December 14, 1989 (Exh. 'B'), which was stamped 'RECEIVED' by the PC Crime Laboratory (Exh. 'E-1') on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens
subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December 14,
1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4' and 'J-5'). Mrs. Anderson identified in court the two newspaper wrapped marijuana
bought at the buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on
each wrapper (Exhs. 'C-1' and 'D-1'). She also identified the one newspaper-wrapped marijuana bought at the test-buy on
December 13, 1989, through her markings (Exh. 'E-1'). Mrs. Anderson also identified her Chemistry Report (Exh. 'J' &
sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words 'buy-bust' and the
words 'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga also identified the receipt of the P20 marked
money (with SN GA955883) (Exh. 'L'), dated December 14, 1989, and his signature thereon (Exh. 'L-1'). He also identified
the letter-request, dated December 14, 1989, addressed to the PC Crime Laboratory (Exh. 'B') and his signature thereon
(Exh. 'B-2') and the stamp of the PC Crime Laboratory marked 'RECEIVED' (Exh. 'B-1')." 4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his
wife. The trial court summarized the version of the defense, thus:

"[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With
him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman manicurist, and a male cousin named
Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of
their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents,
dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask
permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched
Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The
NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the
plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about
ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him
for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the
NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The
writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari
Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him.
Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM
agents he wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt
very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated, he
said his wife was outside the NARCOM building. The very day he was arrested (on cross-examination Mari Musa said it
was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the
marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari
Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might
be maltreated in the fiscal's office. cdll

Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received
from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against
the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to
support. Mari Musa said he had not been arrested for selling marijuana before. 5

After trial, the trial court rendered the assailed decision with the following disposition:

"WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant
to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter
imposed without subsidiary imprisonment." 6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility
of the prosecution witnesses.

The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust
operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2)
there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation
on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful
operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-
bust operation for the following day. 9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain
Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt.
Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.

Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached the
house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two
paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there
were other people in the house. 14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right
hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents
searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he
gave it to his wife. 16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which
resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright.
Being totally untainted by contradictions in any of the material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without
merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for
the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held
that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the
transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell
marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will
not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors
may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance that these people will not report him to
the authorities. cdll

The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant
submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could
not have possibly witnessed the sale. The appellant invokes People v. Ale 20 where the Court observed that from a
distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of
rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that
the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.

People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain
that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette
sticks. The Court rejected this claim, stating that:

"This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions
and tainted with inaccuracies.

Biñan testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the
rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance
where they were observing the alleged sale of more or less 10 to 15 meters." 21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt.
Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt.
Belarga's testimony reads: 2 2

Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?

A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that Sgt. Ani
proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the time
wearing short pants and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musa and went
inside the house and came back later and handed something to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-
100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant
was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court
earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani
to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13,
1939; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to
T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation
the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville,
Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust
operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house
of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places;  28 the
appellant met Sgt. Ani and an exchange of articles took place. 29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court
has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the
appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's
case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is
sufficient to prove the consummation of the sale of the prohibited drug. cdll

The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the
NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other
NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the
marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his
wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a
"cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contents
but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the
admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are
admissible in evidence. 33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures
by providing in Article III, Section 2, the following:

"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 witness he may produce, and particularly describing the place to be searched and the persons or
things to be seized."

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissible,
any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35

While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule
are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that "[t]he most important exception to the necessity for a
search warrant is the right of search and seizure as an incident to a lawful arrest." 37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful
arrest, thus:

SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a search warrant.

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search
upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take
from the person arrested and money or property found upon his person which was used in the commission of the crime or
was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or
which may be used as evidence in the trial of the cause." 38 Hence, in a buy-bust operation conducted to entrap a drug-
pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after
the arrest even without arrest and search warrants. 39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found
nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a
corner. LLjur

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one
arrested to include the premises or surroundings under his immediate control. 40 Objects in the "plain view" of an officer
who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 41
In Ker v. California, 42 police officers, without securing a search warrant but having information that the defendant
husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants'
apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from
the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small
scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the
Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after
observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the
defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer
merely saw what was placed before him in full view." 43 The U.S. Supreme Court ruled that the warrantless seizure of the
marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the
prosecution's evidence. 44

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to
extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually
applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes
across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the application
of the doctrine:

"What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine
serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused
— and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to
extend a general exploratory search from one object to another until something incriminating at last emerges." 46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the
seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.

In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which
they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was,
therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from
one portion of the house to another before they sighted the plastic bag. Unlike Ker v. California, where the police officer had reason to
walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from
room to room with the obvious intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents.
They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana.
Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM
agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. 48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in
the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution.  The
exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence
presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act
of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the
appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond
reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED. SO ORDERED.
 FIRST DIVISION

[G.R. No. 93516. August 12, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA

DADO, accused-appellant.

DECISION

MEDIALDEA, J p:

The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial Court of
Dagupan City with violation of Presidential Decree No. 1866 in furtherance of, or incident to, or in connection with the
crime of subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka
Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric
and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later amended to exclude all the above-
enumerated persons except the accused-appellant from the criminal charge. The amended information reads:

"That on or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the territorial jurisdiction of
this Honorable Court, the above-named accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did then
and there, wilfully, unlawfully and criminally, have in his possession, custody and control one (1) M14 Rifle bearing Serial
No. 1249935 with magazine and Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in connection with
the crime of subversion, filed against said accused in the above-entitled case for Violation of Republic Act 1700, as
amended by Executive order No. 276. prLL

"Contrary to Third Paragraph of Sec. 1, P.D. 1866." (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p. 37). Trial on the merits
ensued. The prosecution rested its case and offered its exhibits for admission. The counsel for accused-appellant
interposed his objections to the admissibility of the prosecution's evidence on grounds of its being hearsay, immaterial or
irrelevant and illegal for lack of a search warrant. On these bases, he, thereafter, manifested that he was not presenting
any evidence for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial court rendered its
decision, the dispositive portion of which states:

"WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka Dado guilty beyond
reasonable doubt of Violation of Presidential Decree Number 1866, and considering that the Violation is in furtherance of,
or incident to, or in connection with the crime of subversion, pursuant to Section 1, Paragraph 3 of Presidential Decree
Number 1866 hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs of the
proceedings.

"The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the articles and/or items seized on June 19,
1988 in connection with this case and marked and submitted in court as evidence are ordered confiscated and forfeited in
favor of the government, the same to be turned over to the Philippine Constabulary Command at Lingayen, Pangasinan.

"SO ORDERED." (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT
TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE
PRESENTED BY THE PROSECUTION.

B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYING CIRCUMSTANCES OF
SUBVERSION WAS NOT PROVEN BY THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS
LISTED IN EXHIBIT E AFTER THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH OF
THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED-APPELLANT BECAUSE
THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL
POSSESSION OF FIREARMS IN FURTHERANCE OR OF INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION." (pp. 55-66, Rollo)

The antecedent facts are set forth by the Solicitor General in his Brief, as follows:

"On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer connected with the 152nd PC Company at
Lingayen, Pangasinan, and some companions were sent to verify the presence of CPP/NPA members in Barangay
Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended Gregorio Flameniano, Berlina Aritumba,
Revelina Gamboa and Deogracias Mayaoa. When interrogated, the persons apprehended revealed that there was an
underground safehouse at Gracia Village in Urdaneta, Pangasinan. After coordinating with the Station Commander of
Urdaneta, the group proceeded to the house in Gracia Village. They found subversive documents, a radio, a 1 x 7
caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989). LLpr

"After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented apartment of
Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a
visitor of Rosemarie Aritumba. She stated that she worked with Bernie Mendoza, herein appellant. She guided the group
to the house rented by appellant. When they reached the house, the group found that it had already been vacated by the
occupants. Since Morados was hesitant to give the new address of Bernie Mendoza, the group looked for the Barangay
Captain of the place and requested him to point out the new house rented by appellant. The group again required
Morados to go with them. When they reached the house, the group saw Luz Tanciangco outside. They told her that they
already knew that she was a member of the NPA in the area. At first, she denied it, but when she saw Morados she
requested the group to go inside the house. Upon entering the house, the group, as well as the Barangay Captain, saw
radio sets, pamphlets entitled 'Ang Bayan', xerox copiers and a computer machine. They also found persons who were
companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Marites Calosa, Eric Tanciangco and
Luzviminda Morados). The group requested the persons in the house to allow them to look around. When Luz Tanciangco
opened one of the rooms, they saw books used for subversive orientation, one M-14 rifle, bullets and ammunitions,
Kenwood radio, artificial beard, maps of the Philippines, Zambales, Mindoro an(d) Laguna and other items. They
confiscated the articles and brought them to their headquarters for final inventory. They likewise brought the persons
found in the house to the headquarters for investigation. Said persons revealed that appellant was the lessee of the house
and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn, October 31, 1989)." (p. 5, Brief of
Plaintiff-Appellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their drive against lawless elements in our society, We
must, however, stress that the latter's efforts to this end must be done within the parameters of the law. In the case at bar,
not only did We find that there are serious flaws in the method used by the law officers in obtaining evidence against the
accused-appellant but also that the evidence as presented against him is weak to justify conviction.

We reverse.

The records of this case show that the accused-appellant was singled out as the sole violator of P.D. No. 1866, in
furtherance of, or incident to, or in connection with the crime of subversion. Yet, there is no substantial and credible
evidence to establish the fact that the appellant is allegedly the same person as the lessee of the house where the M-14
rifle and other subversive items were found or the owner of the said items. The prosecution presented two witnesses who
attested to this fact, thus:

"Lieutenant Candito Quijardo

Fiscal

"Q: How about this Bernie Mendoza, who was the one renting the house?
"A: He was not around at that time, but according to Luz (Tanciangco) who mentioned the name Bernie Mendoza (as) the
one who was renting the house and at the same time claiming that it was Bernie Mendoza who owns the said items."
(TSN of October 31, 1989, p. 40)

xxx xxx xxx

"Q: I am showing you another picture which we request to be marked as Exhibit 'K-2,' tell us if it has any connection to the
house?

"A: The same house, sir.

"Q: Now, this person who according to you allegedly occupied the house at Bonuan Gueset, by the name of Bernie
Mendoza, in your capacity as a Military officer, did you find out the identity?

"A: I am not the proper (person) to tell the real identity of Bernie de Guzman. Cdpr

"Q: Can you tell the Honorable Court the proper person who could tell the true identity of Bernie Mendoza?

"A: The Intelligence of the Pangasinan PC Command.

"Q: Can you name these officers?

"A: Captain Roberto Rosales and his assistant, First Lt. Federico Castro. (ibid, pp. 54-55)

"M/Sgt. Artemio Gomez

"Q: That underground house, do you know who was the principal occupant of that house?

xxx xxx xxx

"A: During our conversation with the occupants, they revealed that a certain Ka Bernie is the one occupying the house,
Bernie Mendoza alias Basilio Damaso.

" . . . (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on their own personal
knowledge. The Solicitor General, however, argues that while the testimonies may be hearsay, the same are admissible
because of the failure of counsel for appellant to object thereto.

It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should not be
misled into thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsay
evidence, whether objected to or not, cannot be given credence. In People v. Valero, We emphatically declared that:

"The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or
evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give
such evidence any probative value. The lack of objection may make any incompetent evidence admissible.
But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not
has no probative value." (L-45283-84, March 19, 1982, 112 SCRA 675, italics supplied)

It is unfortunate that the prosecution failed to present as witnesses the persons who knew the appellant as the lessee and
owner of the M-14 rifle. In this way, the appellant could have exercised his constitutional right to confront the witnesses
and to cross-examine them for their truthfulness. Likewise, the records do not show any other evidence which could have
identified the appellant as the lessee of the house and the owner of the subversive items. To give probative value to these
hearsay statements and convict the appellant on this basis alone would be to render his constitutional rights useless and
without meaning.

Even assuming for the sake of argument that the appellant is the lessee of the house, the case against him still will not
prosper, the reason being that the law enforcers failed to comply with the requirements of a valid search and seizure
proceedings. prLL
 The right against unreasonable searches and seizures is enshrined in the Constitution Article III, Section 2. The purpose
of the law is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the
home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpations when
attempted (see Rivero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are instances when a
warrantless search and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search of a moving vehicle,
and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 267).
None of these exceptions is present in this case.

The Solicitor General argues otherwise. He claims, that the group of Lt. Quijardo entered the appellant's house upon
invitation of Luz Tanciangco and Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened one of
the rooms, they saw a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more subversive
items, that technically speaking, there was no search as the group was voluntarily shown the articles used in subversion;
that besides, a search may be validly conducted without a search warrant with the consent of the person searched as in
this case, appellant's helper and Luz Tanciangco allowed them to enter and to look around the appellant's house; and that
since the evidence seized was in plain view of the authorities, the same may be seized without a warrant.

We are not persuaded. The constitutional immunity from unreasonable searches and seizures, being a personal one
cannot he waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in
his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). In the case at bar, the records show that appellant was not in his
house at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the authorities to enter it (TSN, October
31, 1989, p. 10). We find no evidence that would establish the fact that Luz Morados was indeed the appellant's helper, or
if it was true that she was his helper, that the appellant had given her authority to open his house in his absence. The
prosecution likewise failed to show if Luz Tanciangco has such an authority. Without this evidence, the authorities'
intrusion into the appellant's dwelling cannot be given any color of legality. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional
rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by the
authorities was illegal. It would have been different if the situation here demanded urgency which could have prompted
the authorities to dispense with a search warrant. But the record is silent on this point. The fact that they came to the
house of the appellant at nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside his house. In Alih
v. Castro, We ruled that:

"The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the
petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the
weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a
preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by
the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a
military invasion." (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)

Another factor which illustrates the weakness of the case against the accused-appellant is in the identification of the gun
which he was charged to have illegally possessed. In the amended information (supra, pp. 1-2), the gun was described as
an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a different serial number thus:

"FISCAL:

Q. Will you kindly restate again the items that you found inside the house? Lt. Quijardo:

A. When she opened the doors of the rooms that we requested for, we immediately saw different kinds of books of which
we believed to be used for subversive orientation and the M-14 rifle. prcd"

Q. In what portion of the house did you find this M-14 rifle which you mentioned?

A. In the same room of which the subversive documents were placed.

Q. If this firearm would be shown to you would you be able to identify the same?

A. Yes, sir.
Q. I am showing to you a rifle bearing a serial number 1249985 which for purposes of identification, may we request your
Honor, that this rifle be marked as Exhibit 'D.'

COURT:

Mark it.

"FISCAL:

Q. Kindly examine the said firearm and tell the Honorable Court the relation of that firearm to the firearm which according
to you found inside the room allegedly occupied by one Bernie Mendoza?

A. This is the same rifle which was discovered during our raid in the same house." (TSN, October 31, 1989, pp. 36-38,
italics supplied)

The Solicitor General contends that the discrepancy is merely a typographical error.

We do not think so. This glaring error goes into the substance of the charge. Its correction or lack of it could spell the
difference between freedom and incarceration of the accused-appellant.

In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the existence of the
firearm and that the accused who possessed or owned the firearm does not have the corresponding license for it. Since
the gun as identified at the trial differs from the gun described in the amended information, the corpus delicti (the
substance of the crime, the fact that a crime has actually been committed) has not been fully established. This
circumstance coupled with dubious claims of appellant's connection to the house (where the gun was found) have totally
emasculated the prosecution's case.

But even as We find for the accused-appellant, We, take exception to the argument raised by the defense that the crime
of subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with the
crime of subversion. It appears that the accused-appellant is facing a separate charge of subversion. The defense
submits that the trial court should have peremptorily dismissed this case in view of the subversion charge. In People of the
Philippines v. Asuncion, et al., We set forth in no uncertain terms the futility of such argument. We quote:

"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 (G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976])., 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 he 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.' (Italics supplied)

"Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 SCRA 289 [1981]), 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. 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.

"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 (contrary 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." llcd
"Private respondents contended that the Court in Misolas v. Panga 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
could 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.'

"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 . . . " (G.R. Nos. 83837-42, April 22, 1992)

Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the charge of illegal possession of
firearm in furtherance of, or incident to or in connection with the crime of subversion, We are therefore, left with no option,
but to acquit the accused on reasonable doubt. ACCORDINGLY, the decision appealed from is hereby REVERSED and
the appellant is ACQUITTED with costs de oficio.

SO ORDERED.

THIRD DIVISION
[G.R. No. 72564. April 15, 1988.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANITA CLAUDIO Y BAGTANG, accused-appellant.

DECISION

GUTIERREZ, JR., J p:

This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch 73 finding the accused Anita
Claudio y Bagtang guilty beyond reasonable doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972
as amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a fine of P20,000.00, and to pay the
costs.

The information filed against the accused alleged:

"That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused without being lawfully authorized, did then and there wilfully, unlawfully and
knowingly transport 1.1 kilos of Marijuana dried leaves, which are prohibited drugs for the purpose of selling the same
from Baguio City to Olongapo City." (Rollo, p. 13)

The lower court established her guilt beyond reasonable doubt on the basis of the prosecution's evidence as follows:

"To prove the guilt of the accused, the prosecution offered the following documentary and testimonial evidence as follows:
Exhibit "A" — Letter request for Examination of suspected marijuana dried leaves weighing approximately 1.1 kilos dated
July 25, 1981; "B" — plastic container; "B" marijuana contained in the plastic container; "B"-1-a" — another plastic
container; "C" — Chemistry Report No. D-668-81;"C " Findings: Positive for marijuana; "D, "D-1," D-2 and "D-3;" "E" and
"E" photographs of accused with Pat. Daniel Obiña and Paulino Tiongco showing the marijuana, "F — Victory Liner Ticket
No. 84977; "G"— Sworn Statement of Pat. Daniel Obiña, "H" — Request for Field Test on suspected marijuana from
accused by P/Lt. Antonio V. Galindo; "H"-1 date of receipt of the request; "L" — Certificate of Field Test dated duly 22,
1981; "B-2" and "B-2-a" — additional wrapping paper; and the testimonies of witnesses of the prosecution, Theresa Ann
Bugayong; Pat. Daniel Obiña, Cpl. Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio Bagang.

"Theresa Ann Bugayong - 22 years old, single, Forensic Chemist and a resident of 1150 Sampaloc, Metro Manila, testified
that she received a request from the Task Force Bagong Buhay, Olongapo City, dated July 25, 1981, on specimen of
marijuana submitted for examination. The specimen consisted of 900 grams of suspected dried marijuana flowering tops
wrapped in a newspaper placed in a plastic bag with a marking "MB Store" (Exh. "B").

"The examination conducted by her proved to be positive for marijuana. After her examination, she prepared Chemistry
Report No. D-668-81 dated July 29, 1981 (Exhs. "C" and "C-1"). She conducted three examinations: microscopic
examination, the duguenoi levine test and thirdly, the confirmatory examination of thin layer chromatographic test. The
said specimen was submitted to them by OIC Danilo Santiago, a representative of the CANU, Olongapo City. LexLib

"The second witness for the prosecution was Daniel Obiña, 37 years old, married, policeman and residing at 34 Corpuz
St., East Tapinac, Olongapo City. Obiña testified that he has been a member of the INP, since 1970 up to the present. He
was assigned in June, 1972 at the Investigation Division as operative. His job then was among other things to follow up
reports in their office, recover stolen items and apprehend suspects. On July 21, 1981, he was on Detached Service with
the ANTI-NARCOTICS Unit; and that on that date, he came from Baguio City and arrived in Olongapo City at about 1:30
o'clock in the afternoon having left Baguio at about 8:30 o'clock in the morning. He took the Victory Liner in going back to
Olongapo City. His family lives in Baguio City. On board the Victory Liner, he was seated on the second seat at the back.
While he was thus seated, suspect Anita Claudio boarded the same bus and took the seat in front of him after putting a
bag which she was carrying at the back of the seat of Obiña. The bag placed by suspect behind his seat was a wooven
buri bag made of plastic containing some vegetables. The act of the accused putting her bag behind Pat. Obiña seat
aroused his suspicion and made him felt (sic) nervous. With the feeling that there was something unusual, he had the
urge to search the woven plastic bag. But it was only at San Fernando, Pampanga when he was able to go to the bag. He
inserted one of his fingers in a plastic bag located at the bottom of the woven bag and smelt marijuana. The plastic woven
bag appearing to contain camote tops on the top has a big bundle of plastic of marijuana at the bottom. He could
recognize the smell of marijuana because he was assigned at that time at the ANTI-NARCOTICS Unit. He did not,
however, do anything after he discovered that there was marijuana inside the plastic bag of the accused until they
reached Olongapo City and the accused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita. Right
after the accused alighted from the bus, policeman Obiña intercepted her and showed her his ID identifying himself as a
policeman and told her he will search her bag because of the suspicion that she was carrying marijuana inside said bag.
In reply, accused told him, "Please go with me, let us settle this at home." However, the witness did not heed her plea and
instead handcuffed her right hand and with her, boarded a tricycle right away and brought the suspect to the police
headquarters with her bag appearing to contain vegetables.

"At the police headquarters Investigation Section. the bag was searched in the presence of Investigator Cpl. Tiongco; Pat.
Obiña, the accused and Sgt. Leoncio Bagang. Inside the plastic bag was found a big bundle of plastic containing
marijuana weighing about one kilo. Witness stated that he could detect marijuana even before the application of
chemicals because of his one year and a half assignment with the CANU. After the marijuana was taken from the bag of
the accused, photographs were taken of the accused and the marijuana confiscated from her possession with Pat. Obiña
and that of Investigator Tiongco, accused and himself identified photographs shown to him in open Court. (Exhs. "D," "D-
1," "D-2" and "D-3"). Witness was likewise shown a plastic bag of marijuana contained in a plastic container (Exhs. "B,"
"B-1" and "B-1-a") and identified it as the one confiscated from the accused and pointed to his initials on the newspaper
wrapping which also shows the date and time, although the wrapper at the time he testified appeared to be soiled already.
The marijuana was allegedly still fresh when confiscated.

"To prove further that the accused transported the confiscated marijuana from Baguio City to Olongapo City, witness
identified Victory Liner Ticket No. 684977 which was confiscated from the accused and for identification purposes, the
witness presented the body number of the bus he wrote at the back of the ticket which is "309" (Exhs. "F" and "F-1").
Regarding himself, he did not pay his fare from Baguio City because as a policeman, he used his badge and a free ride.

"On cross-examination, witness stated that he went to Baguio City on July 15, 1981 and underwent treatment of his heart
while he was there. He was given a furlough for medical treatment. He stayed in Baguio City for about five days and
returned to Olongapo City or July 21, 1981. Prior to July 21, 1981, witness never knew the accused, and the first time he
saw her was in Baguio when she boarded the same Victory Liner he took. When the accused who was bringing with her a
woven plastic bag placed the bag right behind his seat instead of placing it in front of her or beside her seat Witness
Obiña became suspicious and his suspicion was confirmed when they reached San Fernando, Pampanga, after he
checked the buri bag. The bus stopped at said town to load some gasoline. Witness inserted one of his fingers inside the
buri bag and thereafter smelt marijuana. He confirmed his testimony on direct that when witness confronted accused he
was invited to go with her in order to settle the matter to which he refused. Accused further testified that from the time the
accused placed her bag behind his seat from Baguio City, he felt so nervous and had to take his medicine at the Tarlac
Station. It was only after having taken his medicine that his apprehension was contained and thus was able to insert his
right hand inside the buri bag in San Fernando, Pampanga. His fingers reached the very bottom of the bag. He identified
his sworn statement regarding this incident given on July 21, 1981 which is Exhibit "G." Witness likewise identified
accused Anita Claudio in open court.

"Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac Bajac, Olongapo City, testified that as
a policeman on the afternoon of July 21, 1981, he was inside the Investigation Division of the Police Station, Olongapo
City. As Duty Investigator, between 1:46 and 2:00 o'clock in the afternoon of the same day, Pat. Daniel Obiña arrived at
the Police Station with a woman and identified her in the courtroom as Anita Claudio. Pat. Obiña reported to him that he
apprehended Anita Claudio inside the Victory Liner bus for possession of marijuana dried leaves. The marijuana leaves
were contained in a buri bag with some vegetables such as camote tops, bananas and some other vegetable". The
marijuana was placed in a plastic wrapper with the name National Book Store colored black and white. Witness identified
the wrapper (Exh. "B-2"). The bag contained the markings of Pat. Obiña which are his initials, (Exh. "B-2-a"), and numbers
210781 representing the date which was placed by Pat. Obiña after Cpl. Tiongco examined the suspected marijuana.
cdrep

"After examining and seeing the marijuana together with the vegetables, he interviewed apprehending officer Obiña and
reduced his statements in writing. Cpl. Tiongco identified the sworn statement of Obiña (Exh. 'G). He also interviewed
accused Anita Claudio who was all the while inside the Investigation Room seated on a chair. After appraising her of her
constitutional rights, he asked the accused whether she was willing to give her written statements to which the accused
refused. Hence, no statements were taken of her. However, pictures were taken inside the investigation room. Exhs. "D"
and "E," series which were already previously identified by Pat. Obiña. Witness identified the persons appearing in the
pictures as that of Pat. Obiña and the accused and also of himself. Thereafter, the marijuana contained in the plastic bag
were turned over to Lt. Galindo and Anita Claudio was detained.

"Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East Tapinac, Olongapo City, testified he was
since March 1972 a policeman and was stationed at Police Station 21, Olongapo City, Metrodiscom. However, in 1981, he
was already assigned to the CANU-General Anti-NARCOTICS Unit. On July 22, 1981, he reported for work at the CANU
and received from Lt. Galindo more than a kilo of suspected marijuana dried leaves. As requested by Lt. Galindo, he
conducted a field test on this marijuana which he received from Lt. Galindo, as evidenced by a request signed by him
dated July 22, 1981 (Exh. "H").

"In connection with the field test conducted by him on the specimen, he prepared a Certificate of Field Test dated July 22,
1981 (Exhs. "I"). The Certificate of Field Test indicated the presence of tetra-hydrocannabinol (THC), an active substance
that can only be found in marijuana, a prohibited drug. Cpl. Abello identified a plastic bag of marijuana received from Lt.
Galindo which he later give to CIC Danilo Santiago, the Evidence Custodian, for the latter to bring the specimen to the PC
Crime Laboratory.

"The last witness for the prosecution was Leoncio Bagang, 40 years old, married, residing at No. 27 Jones St., East
Tapinac, Olongapo City, a policeman of Olongapo City, assigned with Police Station "21." He has been a policeman since
1966 up to the present. In July, 1981, he was then assigned at the Patrol Division and his duty was to patrol the city
proper from Magsaysay Drive up to east Bajac Bajac.

"He narrated that on July 21, 1981, between the hours of 1:00 and 2:00 o'clock in the afternoon, he was at the Caltex
Gasoline Station, East Bajac Bajac, Olongapo City along Rizal Avenue. He was then on duty patrol using a motorcycle.
While he was at the said place, he saw Pat. Obiña alighted from the Victory Liner bus ordering somebody to alight from
the same bus. When he heard Pat. Obiña, he approached him and asked him what was happening. Pat. Obiña told him
he apprehended a certain woman possessing dried marijuana. The woman was still then inside the bus. Pat. Obiña then
brought the woman to the police department who was bringing with her a buri bag. They boarded a tricycle, the woman
riding inside the tricycle while Pat. Obiña sat behind the driver. He then followed in his motorcycle the said tricycle to the
police station. He went inside the Investigation Section of the Police Station and he was there when Pat. Obiña reported
to Cpl. Tiongco his apprehension of the woman possessing marijuana. He saw the marijuana for the first time inside the
Investigation Section placed in a buri bag covered with newspaper. He witnessed the taking out of the marijuana from
inside the bag by Pat. Obiña in the presence of Cpl. Tiongco and the woman or the accused in this case, and himself.
Policeman Bagang identified the accused in open Court. When asked about the nature of the marijuana when it was
brought out from the bag, he said that the marijuana was dried but not well dried. Aside from the marijuana inside the buri
bag, there were vegetables and bananas. Witness identified in open court, the marijuana he saw found in the buri bag of
the accused. His means of identification was the signature of Pat. Obiña, (Exh. "B-1"). He likewise identified a newspaper
wrapping which was already torn.

"While in the Investigation Division, witness Bagang heard the accused's answer to Cpl. Tiongco's question that she was
going to deliver the marijuana to Sta. Rita. He, however, did not linger long at the investigation Division. After he saw the
marijuana and heard the answer of the accused to Cpl. Tiongco's question the place of delivery of the marijuana, he left
the police station. Witness likewise identified an initial DO-21-07-81 already marked as Exhibit "B-2." DO which is an
initial, and not a signature, stands for Daniel Obiña. After the testimony of Leoncio Bagang, the prosecution rested its
case." (Rollo, pp. 42-47)

Accused Claudio raised the following assignments of errors in this appeal:

"CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR SOME OF THE ELEMENTS OF
THE OFFENSE IS OR ARE ABSENT.

II

"CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE ALLEGED BUYMAN WAS NOT
PRESENTED TO TESTIFY.
III

"APPELLANT'S CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS WRONG BECAUSE SOME
MATERIAL FACTS WERE OVERLOOKED AND NOT CONSIDERED IN FAVOR OF APPELLANT. (Rollo, p. 91)

The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II of  Rep. Act No. 6425 and not
for violating Sec. 4 of the same Act.

The latter section, Sec. 4 provides:

"Sec. 4. Sale, Administration, Delivery Distribution and Transportation of Prohibited Drugs. — The penalty of life
imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or
should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be imposed."

Claudio contends that there was no delivery as there was no recipient of the prohibited drugs. Therefore, she may not be
convicted under Sec. 4 of Rep. Act No. 6425. LibLex

The contention is without merit. A closer perusal of the subject provision shows that it is not only delivery which is
penalized but also the sale, administration, distribution and transportation of prohibited drugs. Claudio was caught
transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.

The accused also alleges that before the completion of delivery, the intention of the possessor is unknown.

This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1 kilos of marijuana. This is a
considerable quantity. As held in the case of People v. Toledo, (140 SCRA 259, 267) "the possession of such
considerable quantity as three plastic bags of marijuana leaves and seeds coupled with the fact that he is not a user of
prohibited drugs cannot indicate anything except the intention of the accused to sell, distribute and deliver said
marijuana."

The accused next contends the warrantless search, seizure and apprehension as unlawful.

The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.

Rule 113, Sec. 5(a) of the said Rules provides:

" . . . 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.

xxx xxx xxx

Meanwhile, its Rule 126, Sec. 12 provides:

"Section 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a search warrant. (12a)"

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obiña did not need a warrant to arrest Claudio as
the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful.
(Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.

The accused takes inconsistent positions in her appellant's brief At first, she does not deny having had with her marijuana
at the time of her arrest. Instead, she claims that she should just be guilty of possession. In a complete turnabout, in the
latter portion of said brief, she claims that the evidence against her were mere fabrications and the marijuana allegedly
found in her possession was only planted.
We have carefully examined the records of the case and we find no ground to alter the trial court's findings and
appreciation of the evidence presented.

Credence is accorded to the prosecution's evidence, more so as it consisted mainly of testimonies of policemen. Law
enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People v. De
Jesus, 145 SCRA 521). We also find no reason from the records why the prosecution witnesses should fabricate their
testimonies and implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA 500). cdphil

The accused testified that she was not on that bus that came from Baguio City but rather she was in Olongapo City all that
time. She alleged that she was arrested by Pat. Obiña for no reason at all.

In the case at bar, alibi does not deserve much credit as it was established only by the accused herself (People v. De la
Cruz, 148 SCRA 582).

Moreover, it is a well-established rule that alibi cannot prevail over positive testimony (People v. De La Cruz, supra).

WHEREFORE, the judgment appealed from is AFFIRMED.

SO ORDERED.

FIRST DIVISION

[G.R. No. 74869. July 6, 1988.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant.

DECISION

CRUZ, J p:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty
of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced
him to life imprisonment plus a fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the
evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding
what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles
were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana
leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was
amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge
against Ali on the basis of a sworn statement of the arresting officers absolving her after a "thorough investigation."  5 The
motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted. 6

According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-
appellant was on board a vessel bound for Iloilo City and was carrying marijuana.  7 He was identified by name. 8 Acting
on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank
after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain
three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she
conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a
jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His
bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was
carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the
blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business
was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been
carrying was not properly identified and could have been any of several bundles kept in the stock room of the PC
headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo
City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below
his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they
damaged as a result of his manhandling. 1 6 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the
injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access
to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice,
meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not
described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the
falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really
beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities
and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his
release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and
searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him
under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after
an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the
Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant
when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier
received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with
marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of
the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follow:

"Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984?

"A Yes, sir.

"Q When did you receive this intelligence report?

"A Two days before June 25, 1984 and it was supported by reliable sources.

"Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date?

"A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being participated by Idel Aminnudin.

"Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9?

"A Yes, sir.

"Q Did you receive any other report aside from this intelligence report?

"A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling
operation.

"COURT:

"Q Previous to that particular information which you said two days before June 25, 1984, did you also receive any report regarding the
activities of Idel Aminnudin?

"A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.

"Q What were those activities?

"A Purely marijuana trafficking.

"Q From whom did you get that information?

"A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot identify the
person.

"Q But you received it from your regular informer?

"A Yes, sir.

"ATTY. LLARIZA:

"Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs?

"A Marijuana, sir.
"Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received
the intelligence report in writing?

"A Not a report of the particular coming of Aminnudin but his activities.

"Q You only knew that he was coming on June 25, 1984 two days before?

"A Yes, sir.

"Q You mean that before June 23, 1984 you did not know that Aminnudin was coming?

"A Before June 23, 1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received
the information that he was coming. Regarding the reports on his activities, we have reports that he has already consummated the act
of selling and shipping marijuana stuff.

"COURT:

"Q And as a result of that report, you put him under surveillance?

"A Yes, sir.

"Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

"A Yes, sir.

"Q Are you sure of that?

"A On the 23rd he will be coming with the woman.

"Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

"A Only on the 23rd of June.

"Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report?

"A No, more.

"Q Why not?

"A Because we were very very sure that our operation will yield positive result.

"Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore?

"A Search warrant is not necessary." 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme
Court cannot countenance such a statement. This is still a government of laws and not of men.

The mandate of the Bill of Rights is clear:

"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."

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him
of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest
allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the
warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to
warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of
the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they
had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to
Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from
the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify
the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored
altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that
"search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the  Dangerous Drugs Act, it has
always been shown that they were caught red-handed, as result of what are popularly called "buy-bust" operations of the
narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of
selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that
he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that
he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The
identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them
to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship,
when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves
to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the
individual liberties its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that
fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so
declared even if his defense is weak as long as the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That
evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the
marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search
was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come
under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement
officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in
the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike
against any manner of high-handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too
high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal should escape than that the
government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been
proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered.

FIRST DIVISION
[G.R. No. 87059. June 22, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO MENGOTE Y TEJAS, accused-appellant.

DECISION

CRUZ, J p:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen
pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not
admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree.
The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its
seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call
from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in
Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial
by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was
holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried
to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then
searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson
revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted
in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police
headquarters for investigation by the Intelligence Division. LLpr

On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of
Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as
follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully
and knowingly have in his possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing

Serial No. 8720-T.

without first having secured the necessary license or permit therefor from the proper authorities.

Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the
subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen
from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "planted" on him at the time of his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B and C and admitted over the objection
of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation
of P.D. 1866. He was sentenced to reclusion perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal
seizure, no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful
arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also
contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been
disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons
or things to be seized.

Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for
any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself
controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed."

The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the
arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules
of Court reading as follows:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or private person may without a warrant, arrest a
person: Cdpr

(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 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.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to
the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

We have carefully examined the wording of this rule and cannot see how we can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was
arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least
attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-
appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers
themselves. There was apparently no offense that had just been committed or was being actually committed or at least
being attempted by Mengote in their presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts
"created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had
been committed and that the accused-appellant had committed it." The question is, What offense? What offense could
possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not
exactly forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different
if Mengote had been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley
at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from
a passenger jeep with his companion. He was not skulking in the shadows but walking in the clear light of day. There was
nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side
to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution
suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves
testified that they were dispatched to that place only because of the telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did
not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. LLpr

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was
a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind
the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, he surreptitiously
examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that
we subsequently upheld on the ground that probable cause had been sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion other than
Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in
their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was
unconstitutional. This was effected while he was coming down a vessel, to all appearances no less innocent than the
other disembarking passengers. He had not committed nor was he actually committing or attempting to commit an offense
in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that,
as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has
not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers
had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the
participation therein of the accused-appellant. It was only later, after Danganan had appeared at the police headquarters,
that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal
possession or the firearm found on Mengote's person, the policemen discovered this only after he had been searched and
the investigation conducted later revealed that he was not its owners nor was he licensed to possess it.

Before these events, the peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that
he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

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 the fact. The offense must also be committed in is presence or
within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx

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. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed,
being committed, or just committed, what was that crime? There is no allegation in the record of such a justification.
Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have
personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his
abdomen, even if it be possibly because of a stomachache, or if a peace officer could clamp handcuffs on any person with
a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply
cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice
on the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to
sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution
has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on
the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but
also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client.
The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation
even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of
the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of
them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital
evidence they had invalidly seized. LLpr

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons
who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by
those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and
ordered released immediately unless he is validly detained for other offenses. No costs.

SO ORDERED.
 SECOND DIVISION

[G.R. No. 123137. October 17, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO2 ALBERT ABRIOL, MACARIO ASTELLERO, and

JANUARIO DOSDOS, accused-appellants.

DECISION

QUISUMBING, J p:

On appeal is the decision dated May 17, 1995, of the Regional Trial Court of Cebu City, Branch 10, in Criminal Cases
Nos. CBU-30350 for murder and CBU-33664 for illegal possession of firearms, finding appellants Albert Abriol, Macario
Astellero, and Januario Dosdos guilty beyond reasonable doubt of murder and violation of Presidential Decree No.
1866 on Illegal Possession of Firearms. Its decretal portion reads:

WHEREFORE, judgment is hereby rendered:

In Criminal Case No. CBU-30350 for Murder, the Court finds accused Albert Abriol, Macario Astellero and Januario
Dosdos, GUILTY of murder beyond reasonable doubt and each is hereby sentenced to reclusion perpetua, with the
accessory penalties provided by law; to indemnify the heirs of deceased Alejandro Flores the sum of P50,000.00; actual
damages of P30,000.00, representing a reasonable amount for the embalming, vigil, wake, and burial expenses;
P30,000.00 for attorney's fees; and to pay the costs.

For insufficiency of evidence, accused Gaudioso Navales is hereby ACQUITTED with costs de officio.

In Criminal Case No. CBU-33664 for Illegal Possession of Firearms, accused Albert Abriol, Macario Astellero and
Januario Dosdos, are hereby sentenced to suffer an indeterminate penalty of 14 years, 8 months and 1 day to 17 years
and 4 months and to pay the costs.

The .38 caliber revolver, SN P08445 and the two .45 caliber pistols with SN PGO 13506 and SN 52469, are hereby
confiscated and forfeited in favor of the Government and accordingly, the Clerk of Court of this Branch is directed to turn
over the said firearms to the Chief of Police, Cebu City, or to the Firearms and Explosives Office (FEO) of the PNP Region
7, upon proper receipt.

The Cebu City Chief of Police is directed to release immediately upon receipt hereof, the person of Gaudioso Navales,
unless there be any other valid reason for his continued detention.

SO ORDERED. 1

This judgment was the culmination of proceedings beginning with the Amended Information dated September 6, 1993,
docketed as Criminal Case No. CBU-30350, wherein appellants PO2 Albert Abriol of the Philippine National Police (PNP),
Macario Astellero, Januario Dosdos, and PNP P/Chief Inspector Gaudioso Navales were charged with murder allegedly
committed as follows:

That on or about the 5th day of June, 1993, at about 11:50 P.M., in the City of Cebu, Philippines and within the jurisdiction
of this Honorable Court, the said accused, armed with handguns, conniving and confederating together and mutually
helping one another, with treachery and evident premeditation, with deliberate intent, with intent to kill, did then and there
shot one Alejandro Flores alias Alex with the said handguns, hitting him on the different parts of his body, thereby inflicting
upon him the following physical injuries:

CARDIO RESPIRATORY ARREST DUE TO SHOCK AND HEMORRHAGE SECONDARY TO MULTIPLE GUNSHOT
WOUNDS TO THE TRUNK AND THE HEAD

as a consequence of which the said Alejandro Flores alias Alex died later.

CONTRARY TO LAW. 2
At the time of the incident, appellant Abriol, a policeman previously detailed as a jailguard at the Bagong Buhay
Rehabilitation Center (BBRC) in Cebu City, was himself a detention prisoner in BBRC. He was charged with murder, a
non-bailable offense, in Criminal Case No. CBU-28843 before the RTC of Cebu City, Branch 14. 3

Appellant Astellero was a former prisoner at BBRC, who had served time for grave threats.  4 The warden then, Chief
Inspector Navales, 5 employed him as his personal driver and general factotum. 6 Navales was found guilty of grave
misconduct in Administrative Case No. 01-93 for allowing Abriol and Dosdos out of BBRC on the day of the murder and
was summarily dismissed from the police force.

Dosdos had been convicted by the RTC of Cebu City, Branch 10, of highway robbery in Criminal Case No. CBU-18152
but Navales failed to act on the mittimus ordering Dosdos' transfer to the national penitentiary, and he remained in
BBRC. 7 Abriol and Dosdos enjoyed special privileges at BBRC as the warden's errand boys 8 or "trustees."

The victim, Alejandro Flores alias "Alex," was a former policeman. He was dismissed from the PNP in August 1992 after
testing positive for prohibited drugs. 9

Abriol, Astellero, and Dosdos were also indicted for illegal possession of firearms in Criminal Case No. CBU-33664. The
charge sheet reads:

That on or about the 5th day of June 1993 at about 11:48 P.M. in the City of Cebu, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, conniving and confederating together and mutually helping one another, with
deliberate intent, did then and there keep under their control and possession the following:

1. one (1) .38 cal. revolver (Armscor) with SN P08445 with six empty shells;

2. one (1) .45 cal. pistol (Colt) with SN P6013506 with 9 live ammunitions (sic);

3. one (1) .45 cal. Pistol (Colt) with SN 52469 with five live ammunitions.

without first obtaining a permit or license therefor from competent authority.

CONTRARY TO LAW. 10

When arraigned, all the accused pleaded not guilty to both charges. Since the indictments arose from the same incident,
the cases were jointly tried.

The facts of the case are as follows:

At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a radio news reporter then aboard his jeep, had just reached
the ABS-CBN compound in P. del Rosario Street, Cebu City, when he heard a couple of gunshots. He looked around and
saw a man running unsteadily towards the intersection of P. del Rosario Street and Jones Avenue (Osmeña Boulevard).
The man was shouting "Tabang, tabang!" ("Help! Help!"). Sta. Cruz, Jr., saw a red "Jiffy" make a U-turn near the gate of
the city central school that nearly ran over the man shouting for help. The man turned back and staggered towards the
direction of Bacalso Avenue and Urgello Private Road, but after a few meters on wobbly legs, he stopped and collapsed.

Meanwhile, the "Jiffy" followed. It stopped beside the fallen figure and a tall, thin man alighted. The man fired several
shots at the prostrate figure. He boarded the "Jiffy" which sped away towards Leon Kilat Street. Romeo Sta. Cruz, Jr.,
moved his jeep and focused its headlights on the victim.

In the meantime, PO3 Alexander Rustela was at a vulcanizing shop near the intersection of Bacalso Avenue and Leon
Kilat Street, when he heard gunshots coming from the north. He ran towards where the gunshots came and saw people
scampering. All of a sudden, the "Jiffy" with three persons on board sped past him and made an abrupt left turn at Leon
Kilat Street. Rustela immediately radioed for assistance. Minutes later, patrol car No. 201 with PO2 Herbert Ramos on
board arrived. Rustela boarded the car and they followed the "Jiffy," while broadcasting an alarm to police headquarters
and other mobile patrol cars.

On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo Abellana were cruising aboard patrol car No. 208,
when they heard a radio message that the suspects in the shooting incident were aboard a "Jiffy." As they turned left at
Leon Kilat Street, they saw the "Jiffy" heading towards Carbon Market. They pursued the "Jiffy" which stopped in front of
the Don Bosco Building near BBRC, when police car No. 205, with PO Eugenio Badrinas and PO2 Gerald Cue aboard,
blocked the "Jiffy's" path. Cue fired a warning shot and three persons alighted. The driver was appellant Astellero, whom
Cue had recognized and seen before at the BBRC. Abrigana and Cue approached the trio who stood a meter away from
the "Jiffy." SPO1 Abrigana frisked Abriol and seized from his waist a .38 caliber revolver with serial number PO8485 with
six (6) empty shells in its cylinder. 11 Under Abriol's seat, the police also found a .45 caliber pistol bearing serial number
PGO 13506 with nine (9) live rounds in its magazine and another .45 caliber pistol with serial number 52469 loaded with
five (5) unfired bullets. 12

While the patrol cars were chasing the "Jiffy," another police team proceeded to the crime scene in response to the alarm.
This team from Police Station No. 3 in San Nicolas, Cebu City rushed the victim to the Cebu City Medical Center, where
he was pronounced dead on arrival. Meanwhile, PO3 Celso Seville, Jr., a homicide investigator of Police Station No. 3
found four (4) .45 caliber shells some four (4) feet away from the victim's body, and two (2) deformed slugs where the
victim had lain, and submitted them to the Region 7 PNP Crime Laboratory for ballistics testing. 13

Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime Laboratory autopsied the victim's body. He found that the cause
of the victim's death was "cardiorespiratory arrest due to shock and hemorrhage secondary to multiple gunshot wounds to
the trunk and head." 14 Dr. Diola recovered a .38 caliber slug from the corpse, which he later submitted for ballistics
examination.

SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory, reported the following:

1. Fired cartridge cases marked "JA-1" to "JA-3" possesses similar individual characteristics markings with the test
cartridge cases fired from cal .45 with SN: PGO13506;

2. Fired cartridge cases marked "JA-4" and "E-69-6" possesses similar individual characteristics markings with the test
cartridge cases fired from cal .45 pistol with SN: 52469;

3. Fired bullet metal jacket marked "JA-5" possesses similar individual characteristics markings with test bullets fired from
cal .45 pistol with SN: PGO13506;

4. Fired cartridge cases marked "E-45-1" to "E-45-6" possesses similar individual characteristics markings with the test
cartridge cases fired from cal .38 Rev. SN: P8445;

5. Fired bullets marked as "JA-6" and "LD" possesses similar individual characteristic markings with the test bullets fired
from cal .38 Rev. SN: P8445. 15

The following day, appellants underwent a paraffin test. The hands of appellants were found positive for gunpowder
residues. A chemistry test on the firearms showed that the three handguns were also positive. Inspector Myrna Areola,
Chief of the Chemistry Section of the PNP Region 7 Crime Laboratory, stated in her testimony that the firearms had been
fired, 16 and that appellants had fired the guns within a period of seventy-two (72) hours prior to the examination.

The widow and relatives of the victim testified on the possible motive behind the killing. They claimed the victim, a
confessed drug user, may have been "rubbed out" on the orders of Navales for failure to remit P31,000 as proceeds from
pushing prohibited drugs. After failing to deliver the drug money to Navales, for whom he was repeatedly pushing drugs,
the victim went into hiding, but later returned to Cebu City because he missed his family. 17

Appellants deny the accusations. Abriol averred that he and Dosdos were among the several "trustees" at BBRC assigned
to work in the kitchen. Appellant Astellero, who was the warden's driver, was also in charge of marketing for the prisoners'
food. On the day of the incident, Astellero realized that there was no money for the next day's marketing so he asked
Abriol to accompany him to the house of Navales, but since he was not in, they returned to BBRC and saw Navales an
hour later. After they received the money from Navales' niece on their way back to BBRC, Dosdos heard gunshots. Abriol
ordered Astellero, who was driving, to turn back. Then Abriol claimed he saw a tall, slim man alight from a "Jiffy" and
shoot at a prone figure on the ground. Seconds later, the gunman returned to the "Jiffy," which sped off. Abriol said he
ordered Astellero to chase that "Jiffy" but it had too much of a headstart and they lost sight of it. Abriol ordered Astellero to
proceed to BBRC. At Colon Street, they heard gunshots behind them and the blaring siren of a police car. They explained
that since they were detention prisoners, they had to evade meeting the police. They heard more gun shots. Upon
reaching BBRC, the gates were closed, so they drove to the old airport. On their way back to BBRC several police cars
blocked them and arrested them. SPO4 Eleazar Abrigana frisked him and took the .38 service revolver from his waist. 18

Abriol also testified that he surrendered his service firearm to the BBRC Administrative Officer when he was served a
warrant of arrest for murder in Criminal Case No. CBU-28843. However, the handgun was defective and it was returned to
him for repair by Armscor, and upon repair he handed it over to the BBRC armory. The armorer returned it to him since
there was no place to keep it. He said that although he was a detention prisoner, he had yet to be discharged from the
service. He was assigned guard and escort duties by the warden. 19 Abriol said that on the day of the incident he was, as
a BBRC jailguard, authorized to carry his service firearm. 20 He presented a Memorandum Receipt 21 authorizing him to
carry the government-issued .38 revolver. 22

On the witness stand, Astellero and Dosdos narrated a similar version of the incident as did Abriol. Both vehemently
denied having any knowledge of the two .45 caliber pistols found by PO3 Cue in the "Jiffy." 23

The defense also presented Dr. Jesus P. Cerna, medico-legal officer of the Cebu City PNP Command, to testify on the
caliber of the firearms which might have caused the gunshot wounds of the victim. Relying on the Necropsy Report
prepared by Dr. Diola, Dr. Cerna declared that wound nos. 1 and 2, which each measured 0.6 cm. by 0.6 cm., may have
been caused by a .38 caliber firearm. As to wound nos. 3 and 4, which each measured 0.5 cm. by 0.5 cm., it was possible
that a .38 handgun was used, or one with a smaller bore. Dr. Cerna opined that a .45 pistol could not have inflicted all the
foregoing wounds, as the entry points were too small for a .45 caliber bullet. With respect to the grazing wounds found on
the victim's body, Dr. Cerna testified that it was impossible to determine the caliber of the firearm used. 24

The trial court found appellants' version of the incident neither convincing and credible and, as earlier stated, it believed
the prosecution's version. Petitioners' were convicted of the offenses charged.

Hence, this appeal, with appellants assigning the following errors:

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIMES OF MURDER AND
ILLEGAL POSSESSION OF FIREARMS DESPITE THE FLIMSY AND UNRELIABLE EVIDENCE PRESENTED BY THE
PROSECUTION.

II

THE LOWER COURT ERRED IN FINDING THE GUILT OF THE ACCUSED-APPELLANTS OF THE CRIME OF
MURDER AND ILLEGAL POSSESSION OF FIREARMS BEYOND REASONABLE DOUBT.

At issue is whether the prosecution's evidence, which is mainly circumstantial, suffices to convict appellants for murder
and violation of Presidential Decree No. 1866, beyond reasonable doubt.

A. Criminal Case No. CBU-30350

On their conviction for murder, appellants argue that the prosecution's circumstantial evidence against them is weak,
ambiguous, and inconclusive. Specifically, appellants contend that they should be acquitted because:

First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as the culprits. At no point in his testimony did
eyewitness Sta. Cruz, Jr., positively identify any of the appellants or appellant Abriol as the gunman. Sta. Cruz, Jr. only
gave a general description of the assailants, despite attempts to make him give a categorical identification. He admitted
he found out the name of Abriol from television and news reports and could not identify Abriol as the one whom he saw
shot the victim. The transcript of his testimony is revealing.

Q: Then after the Jiffy stopped in front of the fallen victim, what happened next?

A: I saw that there was a man who disembarked from the Jiffy. He was a tall, thin fellow who disembarked from the Jiffy
and at the same time, he shot the fallen victim.

Q: How many times did he shoot the victim?

A: I cannot count attorney but I saw him shooting the victim.

Q: In your affidavit, you said that the person who disembarked from the Jiffy, whose name you know later on as PO2
Albert Abriol, PNP, shot the victim in the different parts of his body. If Albert Abriol is now in the courtroom, will you please
point to him?

A: I will know him attorney because of the TV shows and newspapers.

COURT: (TO WITNESS)

Q: You are referring to the name of that man who disembarked from the Jiffy and fired several shots at the fallen victim?

A: Yes, I know his name Your Honor on (sic) the news cast.

COURT: (TO WITNESS)

Q: Alright, forget the news. The man you saw when he alighted from the Jiffy and poured (sic) several bullets on the fallen
man, look around if he is in the courtroom?

A: I cannot identify Your Honor.

COURT:

Q: You cannot?

A: But [because] what I saw is a man who is tall and thin because it was dark.

xxx xxx xxx

Q: How many persons fired a shot at the fallen man?

A: I only saw that man Your Honor who alighted from the Jiffy.

Q: Did you see his physical features?

A: Only (t)his, I can only tell his height, he was tall and his body build is thin. Tall and thin. (Emphasis supplied) 25

Since the sole eyewitness could not identify the gunman and his companions, the prosecution relied on circumstantial
evidence from which the trial court could draw its findings and conclusion of culpability.  26 Circumstantial evidence may
be relied upon, as in this case, when to insist on direct testimony would result in setting felons free.

Second, appellants assert that the paraffin tests are judicially recognized as unreliable and inconclusive. A paraffin test
could establish the presence or absence of nitrates on the hand. However, it cannot establish that the source of the
nitrates was the discharge of firearms. Nitrates are also found in substances other than gunpowder. A person who tests
positive may have handled one or more substances with the same positive reaction for nitrates such as explosives,
fireworks, fertilizers, pharmaceuticals, tobacco, and leguminous plants. Hence, the presence of nitrates should only be
taken as an indication of a possibility that a person has fired a gun. 27 However, it must be borne in mind that appellants
were not convicted on the sole basis of the paraffin test.

Third, appellants claim that the autopsy report of prosecution witness Dr. Ladislao Diola revealed serious
ambiguities. 28 Dr. Jesus P. Cerna, using the same autopsy report, said that the gunshot wounds measuring 0.6 x 0.6
centimeters could not have been caused by a .45 caliber pistol because an entrance wound of that size was too small for
a .45 caliber bullet. 29 Dr. Cerna claimed that a wound inflicted by a .45 pistol would have an entry point of anywhere from
1.1 to 1.3 centimeters. He declared that it was with more reason that an entrance wound measuring .5 x .5 centimeters
could not be caused by a caliber .45 bullet. 30 Since no firearm smaller than a .38 caliber pistol was seized from
appellants, they claim the observation of Dr. Cerna only shows that they could not have shot the victim.

We note, however, that during cross-examination, Dr. Diola carefully explained that a firearm's caliber is not the only basis
for determining the cause of the gunshot wound. He said:
ATTY. REMOTIQUE:

Q: So, normally the size of .5 cm x .5 cm which is the point of entry of gunshot wound No. 3 this may have been caused
by a firearm of lesser caliber than caliber .38?

A: Not necessarily. There is a very small difference in the size and this does not preclude that gunshot wound No. 3 may
have also been caused by the same firearm which caused gunshot wounds Nos. 1 and 2. There are factors which often
affect the size of the wounds at the time of the examination, perhaps a recission (sic) of the skin in the area where
gunshot Wound No. 3 was inflicted so that gunshot wound becomes smaller.

Q: Did you not say that normally the point of entry of the gunshot wounds vary with the caliber of the firearm which caused
it, so that the point of entry caused by one firearm of a particular caliber may be bigger than the point of entry of a gunshot
wound caused by another firearm of lesser caliber?

A: I told you of other factors that often affect the size of the entry of the bullet although the caliber is one basis of the size
of the wounds.

xxx xxx xxx

Q: Will you explain further on that because my understanding is that .5 cm wound must perforce be caused by a firearm of
lesser caliber than that which caused the .6 cm wound?

A: As I said there are ranges in the size of the wounds. The variance in the size of the wound when it is minimal does not
exclude the possibility that a wound with a .5 cm size and .6 cm size could have been caused by the same caliber.
(Emphasis supplied). 31

The Office of the Solicitor General points out that Dr. Diola's testimony is supported by Dr. Pedro P. Solis, a medical
expert, in his book entitled Legal Medicine. The factors which could make the wound of entrance bigger than the caliber
include: (1) shooting in contact or near fire; (2) deformity of the bullet which entered; (3) a bullet which might have entered
the skin sidewise; and (4) an acute angular approach of the bullet. However, where the wound of entrance is smaller than
the firearm's caliber, the same may be attributed to the fragmentation of the bullet before entering the skin or to
a contraction of the elastic tissues of the skin (italics supplied). 32 Dr. Diola testified that a .45 caliber pistol could have
caused the grazing wounds on the victim's head and extremities. 33 Dr. Cerna corroborated Dr. Diola's findings in this
regard. 34 Such expert opinions disprove appellants' theory that the .45 caliber handguns confiscated from them could not
have been used in killing the victim.

Fourth, appellants allege that the testimony of P/Inspector Lemuel Caser, the prosecution's ballistics expert, clearly shows
that: (1) He is ignorant about such ballistics instruments such as the micrometer, goniometer, and pressure barrel. 35 (2)
He is not conversant with "the required references concerning ballistics," particularly books on the subject by foreign
authorities. 36 (3) He could not "scientifically determine the caliber of a bullet." 37 Since P/Inspector Caser lacked
adequate training and expertise in ballistics, they claim that his opinion that the test bullets and cartridges matched the
slugs and cartridges recovered from the scene of the crime was not reliable. Appellants also assail Caser's failure to take
the necessary photographs to support his findings.

An expert witness is "one who belongs to the profession or calling to which the subject matter of the inquiry relates and
who possesses special knowledge on questions on which he proposes to express an opinion." 38 There is no definite
standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. It is
sufficient that the following factors be present: (1) training and education; (2) particular, first-hand familiarity with the facts
of the case; and (3) presentation of authorities or standards upon which his opinion is based.  39 The question of whether
a witness is properly qualified to give an expert opinion on ballistics rests with the discretion of the trial court. 40

In giving credence to Caser's expert testimony, the trial court explained:

The defense downgraded the capability of Caser in forensics ballistics and identifying firearms. Much stress is given to the
absence of photographs of his examination. Nonetheless, the Court is satisfied (with) Caser's examination, findings and
conclusions with the use of a microscope. Caser's conclusion based on his examination deserves credit. He found the
impressions on the primer of the fired cartridges that were test-fired to have the same characteristics with those recovered
at the scene of the crime. Whenever a triggerman pumps a bullet (into) the body of his victim, he releases a chunk of
concrete evidence that binds him inseparably to his act. Every gun barrel deeply imprints on every bullet its characteristic
marking peculiar to that gun and that gun alone. These marking might be microscopic but they are terribly vocal in
announcing their origin. And they are as infallible for purposes of identification, as the print left by the human finger. 41

We agree with the trial court that P/Inspector Caser qualifies as a ballistics expert. He is a licensed criminologist, trained
at the Ballistics Command and Laboratory Center in Fort Bonifacio, in the PNP Crime Laboratory in Camp Crame, and in
the National Bureau of Investigation. He had previously testified as an expert witness in at least twenty-seven (27) murder
and homicide cases all over the country. 42 An expert witness need not present comparative microphotographs of test
bullets and cartridges to support his findings. 43 Examination under a comparison microscope showing that the test bullet
and the evidence bullet both came from the same gun is sufficient. 44 Moreover, the ballistician conclusively found similar
characteristic markings in the evidence, test cartridges and slugs.

Fifth, appellants aver that the prosecution failed to show any plausible motive for appellants to kill the victim. The
prosecution tried to prove that their co-accused Navales instigated them to kill the victim because Navales had a grudge
against him. However, as Navales was acquitted, appellants insist that Navales' acquittal should redound to their benefit
since no motive was imputed on their part.

Motive is not an essential element of a crime, 45 particularly of murder. 46 It becomes relevant only where there is no
positive evidence of an accused's direct participation in the commission of a crime. 47 Stated otherwise, proof of motive
becomes essential to a conviction only where the evidence of an accused's participation in an offense is
circumstantial. 48 A careful perusal of the State's evidence reveals that the prosecution had established sufficient motive
why appellants killed the victim, independent of any grudge which Navales may have had against the latter. At the time of
the incident, appellants Abriol and Dosdos were both BBRC detention prisoners during Navales' term as warden. Abriol
and Dosdos were treated as highly favored "trustees" of Navales and were never locked up. Abriol and Dosdos were even
allowed to go out of BBRC to do the marketing for the prison's kitchen. Appellant Astellero, a former detention prisoner,
was also a recipient of Navales' favors. Navales hired Astellero as his personal driver after the latter served his sentence.
Navales and the victim, a former BBRC jailguard, were associates in dealing with prohibited drugs, until they had a falling
out allegedly after the victim failed to remit to Navales proceeds from the sale of illegal drugs amounting to P31,000.
Appellants apparently killed the victim to return the "special favors" Navales had showered them. Lack of a motive does
not necessarily preclude conviction. Persons have been killed or assaulted for no reason at all, and friendship or even
relationship is no deterrent to the commission of a crime. 49

Sixth, in the present case, appellants contend that the PNP cannot be presumed to have done their work since it
committed errors and blunders in transferring possession and custody of the physical evidence. They allege there was a
possibility that the evidence was tainted, planted, or manufactured. Besides, appellants point out that the presumption of
regularity cannot prevail over the constitutional presumption of innocence of the accused.

The record shows that the police officers did not issue acknowledgement receipts in some instances. However, minor
lapses do not mean that the State had failed to show an unbroken chain of custody of the subject firearms and
ammunition, nor that said firearms and ammunition were tampered. The slugs and spent shells recovered from the scene
of the crime and the victim's corpse were plainly identified in open court by the PNP investigators. The ballistician testified
that the bullets and cartridges recovered from the crime scene had been fired from the subject handguns. Under these
circumstances, we must respect the presumption of the regularity in the performance of duties.

Seventh, appellants insist that the prosecution failed to show that the red "Jiffy" used by them and seized by the police
officers was the same vehicle used by the gunmen who killed Alejandro Flores. Appellants point out that PO3 Rustela,
who was aboard police car No. 201, testified that they lost sight of the red "Jiffy" while chasing it along Leon Kilat Street.
Appellants argue that the "Jiffy" which was chased by patrol car No. 208 until it was cornered near BBRC by the other
pursuing patrol cars was not the same vehicle originally sighted and tailed by patrol car No. 201.

In rejecting this theory, the trial court stated that:

. . . PO3 Rustela who was nearby, immediately ran to the scene of the crime and met the red jiffy with three persons on
board, that speedily passed by him proceeding towards Leon Kilat Street. Car 208 readily picked up the trail and pursued
the red jiffy from Leon Kilat, then making abrupt turns on downtown streets until other patrol cars joined the chase and
captured them in Lahug, near the BBRC. The identity of the red jiffy was never interrupted. Members of the Mobile Patrol
Cars identified in court without batting an eyelash, the red jiffy which was the object of the shooting alarm. There was no
interruption, no let-up in the chase, right after Alejandro Flores was shot and there was no other red jiffy that the crews of
the (pursuing) patrol cars noticed.

The Court rejects their claim of innocence, for their very acts belied the same.

Astellero could have stopped the jeep upon noticing that patrol cars were already running after them with sirens, blinkers
and warning shots fired. From Leon Kilat Street to Lahug airport, there were several police stations that they could have
sought shelter and police assistance. Guilt has many ways of surfacing. Instead of stopping, Abriol ordered Astellero to
accelerate their speed. Their obvious purpose was to elude the patrol cars. Flight is indicative of guilt. 50

But, in this case, is the totality of the circumstantial evidence relied upon by the trial court sufficient to support a
conviction?

Circumstantial evidence is that which indirectly proves a fact in issue. For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with each other, consistent with the theory that the accused
is guilty of the offense charged, and at the same time inconsistent with the hypothesis that he is innocent and with every
other possible, rational hypothesis, except that of guilt. 51 An accused can be convicted on the basis of circumstantial
evidence where all the circumstances constitute an unbroken chain leading to one fair and reasonable conclusion pointing
to the accused, to the exclusion of all others, as the culprit. 52

In our assessment, the prosecution's evidence constitutes an unbroken chain of events leading to the inevitable
conclusion of guilt on the part of appellants. First, the fatal shooting of Alejandro Flores occurred at around 11:50 P.M. of
June 5, 1993 in front of the ABS-CBN compound in Cebu City. The gunman, who was tall and thin, alighted from a red
"Jiffy," pumped several bullets into the prone victim, and got back aboard the "Jiffy" which then sped towards Leon Kilat
Street. Second, eyewitness Romeo Sta. Cruz, Jr.'s description of the gunman as "tall and thin" perfectly matches the
physique of appellant Abriol. Third, PO3 Alexander Rustela, who was close to the crime scene, heard the gunshots and
ran towards the place where the sound of gunshots emanated. A red "Jiffy" with three persons aboard whizzed by him and
abruptly turned at Leon Kilat Street. After Sta. Cruz, Jr. informed him that the gunmen were aboard a red "Jiffy," Rustela
boarded patrol car No. 201, radioed an alarm, and commenced a pursuit of the fleeing vehicle. Police car no. 208
received the alarm, and on turning into Leon Kilat Street, encountered the speeding red "Jiffy." They immediately chased
the "Jiffy" but failed to catch it. Police cars Nos. 208 and 205 cornered the vehicle in front of the Don Bosco building near
BBRC. PO2 Gerald Cue, on patrol car no. 205 fired a warning shot at the vehicle and directed all those aboard to
disembark. Three men got out, with their hands raised. SPO1 Abrigana, on patrol car no. 208 and PO2 Cue approached
the trio. Abrigana frisked the man who was seated in the front passenger seat, who turned out to be appellant Abriol, and
recovered from his waist a .38 caliber revolver with six empty shells. Cue searched the red "Jiffy" and found two
loaded .45 caliber pistols under the front seat where Abriol had sat. Other police officers immediately went to the crime
scene where they found the victim barely alive. PO3 Seville retrieved four .45 caliber slugs and two deformed slugs at the
spot where the victim was shot. The autopsy of the victim's remains showed that he died of cardio respiratory arrest due
to shock and hemorrhage secondary to gunshot wounds. A deformed metal jacket of a .38 caliber slug was recovered
from the corpse. Ballistics tests showed that the bullets and cartridges had identical individual characteristics with those of
the test bullets and cartridges. Paraffin tests conducted on each of the appellants, one day after the incident, revealed that
all were positive for gunpowder residues. The subject firearms were also chemically examined and found positive for
gunpowder residue. Before the shooting incident, appellants were seen at Navales' house until around 7:30 P.M., when
they left aboard Navales' red "Jiffy" with Astellero driving, Abriol in the front passenger seat, and Dosdos in the back
seat. 53 Appellants' seating arrangements were exactly the same, several hours later, after they were pursued and
cornered by police cars near BBRC. Appellants admitted that they dropped by the Navales residence at around 7:00 P.M.
and 11:00 P.M.

These unbroken chain of events prove not only appellants' identities but also their participation and collective
responsibility in the murder of Alejandro Flores. They reveal a unity of purpose and concerted action evidencing their
conspiracy to kill him. Against this matrix of facts and circumstances, appellants' bare denials cannot stand. Their story of
chasing a red "Jiffy" is merely a disingenuous diversion of no evidentiary value for the defense.
Finally, the information for murder alleged treachery and evident premeditation. We note, though, that the trial court did
not state which circumstance qualified the killing into murder.

A review of the record would reveal that there was no evident premeditation. There is evident premeditation when the
following are shown: (a) the time when the accused determined to commit the crime; (b) an act or acts manifestly
indicating that the accused has clung to his determination; and (c) a lapse of time between the determination to commit
the crime and the execution thereof sufficient to allow him to reflect upon the consequences of his act. 54 Evident
premeditation indicates deliberate planning and preparation. Nowhere in the record is it shown when and how appellants
planned and prepared to kill the victim.

Concerning treachery, however, it was shown that: (1) the means of execution employed gave the person attacked no
opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously
adopted. 55 These twin requisites were adequately proved.

Appellants had superiority in numbers and weapons. The victim was without any means to defend himself as no weapon
was found or even intimated to be in his possession. The victim was running away from the "Jiffy" prior to the killing. That
he was warned or threatened earlier is of no moment. Even when the victim is warned of danger to his person, if the
execution of the attack made it impossible for the victim to defend himself or to retaliate, treachery can still be
appreciated. 56 The victim was lying prostrate on the ground when he was deliberately and mercilessly riddled with
bullets. The weapons used, the number of assailants, the swift and planned manner of the attack, and the multiple
number of wounds inflicted upon the victim all demonstrate a determined assault with intent to kill the victim. No doubt
there was treachery.

B. Criminal Case No. CBU-33664

On their conviction for illegal possession of firearms, appellants contend that the handguns and ammunition allegedly
taken from them by the police officers were illegally seized. They assert that the police had no warrant to effect a search
and seizure, such that these illegally seized firearms were inadmissible as evidence, and it was error for the trial court to
admit them.

There are eight (8) instances where a warrantless search and seizure is valid. They are: (1) consented searches;  57 (2)
as an incident to a lawful arrest; 58 (3) searches of vessels and aircraft for violation of immigration, customs, and drug
laws; 59 (4) searches of moving vehicles; 60 (5) searches of automobiles at borders or constructive borders; (6) where the
prohibited articles are in "plain view;" 61 (7) searches of buildings and premises to enforce fire, sanitary, and building
regulations; and (8) "stop and frisk" operations. 62

In this case, the warrantless search and seizure of the subject handguns and ammunition is valid for two reasons. It was a search
incidental to a lawful arrest. It was made after a fatal shooting, and pursuit of a fast-moving vehicle seeking to elude pursuing police
officers, and a more than reasonable belief on the part of the police officers that the fleeing suspects aboard said vehicle had just
engaged in criminal activity. The urgent need of the police to take immediate action in the light of the foregoing exigencies clearly
satisfies the requirements for warrantless arrests under the Rules of Court. 63 Moreover, when caught in flagrante delicto with firearms
and ammunition which they were not authorized to carry, appellants were actually violating P.D. No. 1866, another ground for valid
arrest under the Rules. 64

Appellants further contend that the trial court erred in convicting appellants Astellero and Dosdos of illegal possession of firearms. They
point out that the .38 caliber revolver was recovered from appellant Abriol, who as a policeman was authorized to carry and possess
said firearm, as evidenced by his Memorandum Receipt (MR), which had "not been recalled, cancelled or revoked until the time of the
trial of these cases." Appellants claim that the two .45 caliber pistols could have been left in the vehicle by PNP personnel assigned at
BBRC, considering that the red "Jiffy" was generally used as a service vehicle by BBRC personnel. They also argue that the
prosecution failed to prove appellants' ownership, control, and possession of the .45 caliber pistols, considering that appellants were six
meters away from the "Jiffy" when said handguns were allegedly found.

To sustain a conviction for violation of P.D. No. 1866, the prosecution must prove two elements of the offense: (1) the existence of the
subject firearm; (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to
possess it. 65 These the prosecution did. It presented a .38 caliber revolver with serial number PO8445, a .45 caliber pistol with serial
number PGO 13506 Para Ordinance, and a .45 caliber pistol with serial number 52469. The .38 caliber handgun was recovered from
appellant Abriol, while the two .45 caliber automatics were found and seized from under the front passenger seat of appellants' vehicle.
SPO4 Aquilles Famoso of the Cebu City PNP Metropolitan District Command's Firearms and Explosive Unit testified that appellants
were not listed as licensed firearm owners in Cebu City. 66 The prosecution also presented a certification from P/Senior Inspector
Edwin Roque of the Firearms and Explosives Division of PNP Headquarters at Camp Crame, Quezon City that appellant Abriol is not
licensed to hold any firearm; that the .45 caliber pistols were unlicensed; and that a certification from the PNP Firearms and Explosives
Office attesting that a person is not a licensee of any firearm, proves beyond reasonable doubt the second element of illegal
possession of firearm. 67

Abriol insists that he had a valid MR authorizing him to carry the .38 revolver. We agree with the observation of the trial court that:

The claim of Abriol that .38 caliber was issued to him, as evidenced by the corresponding receipt (MR), is of no moment. While an MR
is an authority of Abriol to possess the government firearm that was issued to him, when he was charged and detained at BBRC for an
earlier case of murder, other than the case at bar, he was already then at that moment a detained prisoner and therefore,
(un)authorized to carry a firearm. A military man or a member of the PNP who commits a crime, is immediately disarmed upon his
arrest and stripped of all the rights and privileges that go with the function of his office, and this includes, in the case of Abriol, his MR.
Thus, when he shot Alejandro Flores with his .38 caliber revolver, this firearm was already unauthorized and its use and possession
illegal. 68

Even if Abriol's MR was valid, said authorization was limited only to the .38 caliber revolver and not the two .45 caliber automatic pistols
found under the front passenger seat of the "Jiffy." Appellants were still in the unlawful possession of the .45 caliber pistols. Under P.D.
No. 1866, possession is not limited to actual possession. 69 In this case, appellants had control over the pistols. They were all liable
since conspiracy was established and the act of one is the act of all. 70

Appellants claim that they were six meters away from the "Jiffy" when it was searched and the two .45 caliber pistols were seized. They
suggest that the policemen who searched the vehicle could have planted said firearms. The trial court found that they were in fact only
one meter away from the vehicle. Findings of fact of the trial court, when supported by the evidence on record, are binding and
conclusive upon appellate courts. 71

All told, on the charge of illegal possession of firearms, no reversible error was committed by the trial court when it found appellants
guilty beyond reasonable doubt.

The Office of the Solicitor General recommends that although appellants were charged with and convicted of two separate offenses of
murder and violation of P.D. No. 1866, R.A. No. 8294, which amended said decree, should be applied to appellants retroactively,
citing People v. Molina, 292 SCRA 742, 779 (1998) interpreting R.A. No. 8294.

We agree. We ruled in Molina that with the passage of R.A. No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or
homicide is not a separate crime, but merely a special aggravating circumstance. This was recently reiterated in People v. Castillo, G.R.
Nos. 131592-93, February 15, 2000. 72 Appellants are thus guilty only of murder with the special aggravating circumstance of use of
unlicensed firearms. The imposition of the penalty of reclusion perpetua cannot however be modified since the murder took place
before the effectivity of R.A. No. 7659.

A final word on the damages. In addition to the award of P50,000 as indemnity ex delicto, the trial court awarded P30,000 in actual
damages, "representing a reasonable amount for the embalming, vigil, wake and burial expenses," and P30,000 as attorney's fees. To
be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof, and on the best evidence obtainable by the injured party. 73 No such evidence was offered. The award of actual
damages must, therefore, be deleted. However, temperate damages may be awarded since the family of the victim has demonstrably
spent for the wake, funeral and burial arrangements. The amount of P20,000 should suffice as temperate damages. In addition, we find
an award of exemplary damages in order, pursuant to Article 2230 of the Civil Code.74 The killing was attended by the special
aggravating circumstance of use of unlicensed firearms. Moreover, the public good demands that detained prisoners should not abuse
their status as "trustees." Had the police been unsuccessful in their pursuit of appellants, the latter would have used the BBRC as
shelter and as an alibi that they could not have committed the crime since they were then in detention. Thus, we find an award of
P10,000 as exemplary damages in order. Accordingly, the award of attorney's fees is sustained. 75

WHEREFORE, the assailed Decision of the Regional Trial Court of Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 and
CBU-33664 is hereby MODIFIED. Appellants Albert Abriol, Macario Astellero, and Januario Dosdos are hereby found GUILTY of
murder, qualified by treachery, with the special aggravating circumstance of use of unlicensed firearms and are hereby sentenced to
suffer the penalty of reclusion perpetua with the accessory penalties provided for by law. Appellants Abriol, Astellero, and Dosdos are
also ordered to pay, jointly and severally, the heirs of Alejandro Flores the sum of P50,000 as death indemnity, P20,000 as temperate
damages, P10,000 as exemplary damages, and P30,000 as attorney's fees, as well as the costs. AcICHD

SO ORDERED.

FIRST DIVISION
[G.R. No. 89139. August 2, 1990.]

ROMEO POSADAS y ZAMORA, petitioner, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION

GANCAYCO, J p:

The validity of a warrantless search on the person of petitioner is put into issue in this case.

On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar, both members of
the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were within the premises of the Rizal Memorial
Colleges they spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously.

They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his
attempt to get away was thwarted by the two notwithstanding his resistance.

They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson revolver with
Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun,  2 a smoke (tear gas) grenade 3 a and two (2)
live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the police station for further investigation. In the
course of the same, the petitioner was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the
prohibited articles recovered from him were indorsed to M/Sgt. Didoy, the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of not guilty
and trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of the offense charged as
follows:

"WHEREFORE, in view of all the foregoing, this Court finds the accused guilty beyond reasonable doubt of the offense
charged.

It appearing that the accused was below eighteen (18) years old at the time of the commission of the offense (Art. 68, par.
2), he is hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor
to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of Reclusion Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor of the government and the Branch Clerk of Court is
hereby directed to turn over said items to the Chief, Davao Metrodiscom, Davao City." 5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course a decision was
rendered on February 23, 1989 affirming in toto the appealed decision with costs against the petitioner. 6

Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or search and seizure,
the items which were confiscated from the possession of the petitioner are inadmissible in evidence against him. LexLib

The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner, argues that under
Section 12, Rule 126 of the Rules of Court a person lawfully arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without a search warrant. It is further alleged that the arrest without
a warrant of the petitioner was lawful under the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:

"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a
person:

(a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense;
(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 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.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to
the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)"

From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a peace officer or private
person, among others, when in his presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been committed, and he has personal knowledge of
the facts indicating that the person arrested has committed it.

The Solicitor General argues that when the two policemen approached the petitioner, he was actually committing or had
just committed the offense of illegal possession of firearms and ammunitions in the presence of the police officers and
consequently the search and seizure of the contraband was incidental to the lawful arrest in accordance with  Section 12,
Rule 126 of the 1985 Rules on Criminal Procedure. We disagree.

At the time the peace officers in this case identified themselves and apprehended the petitioner as he attempted to flee
they did not know that he had committed, or was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag. They did now know what its contents
were. The said circumstances did not justify an arrest without a warrant. llcd

However, there are many instances where a warrant and seizure can be effected without necessarily being preceded by
an arrest, foremost of which is the "stop and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this Court in Valmonte vs. de Villa, 7 as follows:

"Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by
the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a
violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there
was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited.
Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to
be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair
grounds, or simply looks into a vehicle or flashes a light therein, these do not constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security
measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace
and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the
government in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by
deteriorating economic conditions — which all sum up to what one can rightly consider, at the very least, as abnormal
times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right
against a warrantless search which is however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform in the same manner that all
governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to
the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price
we pay for an orderly society and a peaceful community. (Emphasis supplied)."

Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the search thereat in
the case at bar, there is no question that, indeed, the latter is more reasonable considering that unlike in the former, it was
effected on the basis of a probable cause. The probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.

It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall
have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late.

In People vs. CFI of Rizal, 8 this Court held as follows:

". . . In the ordinary cases where warrant is indispensably necessary, the mechanics prescribed by the Constitution and
reiterated in the Rules of Court must be followed and satisfied. But We need not argue that there are exceptions. Thus in
the extraordinary events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be
performed except without warrant, what constitutes a reasonable or unreasonable search or seizure becomes purely a
judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or
seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or
thing searched and the character of the articles procured."

The Court reproduces with approval the following disquisition of the Solicitor General: cdphil

"The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose object is either to
determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to
obtain more information. This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men
repeatedly walked past a store window and returned to a spot where they apparently conferred with a third man. This
aroused the suspicion of a police officer. To the experienced officer, the behavior of the men indicated that they were
sizing up the store for an armed robbery. When the police officer approached the men and asked them for their names,
they mumbled a reply. Whereupon, the officer grabbed one of them, spun him around and frisked him. Finding a
concealed weapon in one, he did the same to the other two and found another weapon. In the prosecution for the offense
of carrying a concealed weapon, the defense of illegal search and seizure was put up. The United States Supreme Court
held that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for the
purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest." In such a
situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow a crime to occur, to stop a
suspicious individual briefly in order to determine his identity or maintain the status quo while obtaining more information. .
..

Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and hence, the
constitutional guarantee against unreasonable searches and seizures has not been violated." 9

WHEREFORE, the petition is DENIED with costs against petitioner.

SO ORDERED.

THIRD DIVISION
[G.R. No. 113447. October 9, 1997.]

ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

PANGANIBAN, J p:

When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no
time to secure an arrest or a search warrant, policemen should employ limited, flexible responses — like "stop-and-frisk"
— which are graduated in relation to the amount of information they possess, the lawmen being ever vigilant to respect
and not to violate or to treat cavalierly the citizen's constitutional rights against unreasonable arrest, search and seizure.

The Case

This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court, seeking the
reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA
G.R. CR No. 07266, entitled "People of the Philippines vs. Alain Manalili y Dizon."

In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan City Fiscal
E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed as follows: 2

"That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused without any authority of law, did then and there willfully, unlawfully and feloniously have
in his custody, possession and control crushed marijuana residue, which is a prohibited drug and knowing the same to be
such.

Contrary to Law."

Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge. 3 With the agreement of the public
prosecutor, appellant was released after filing a P10,000.00 bail bond. 4 After trial in due course, the Regional Trial Court
of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision  5 convicting
appellant of illegal possession of marijuana residue. The dispositive portion of the decision reads: 6

"WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty beyond
reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal Possession of
Marijuana residue), and hereby sentences (sic) said accused to suffer imprisonment of SIX (6) YEARS and ONE (1) DAY;
and to pay a fine of P6,000.00; and to pay the costs.

xxx xxx xxx"

Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the defense, filed a Notice of
Appeal 8 dated May 31, 1989. On April 19, 1993, Respondent Court 9 promulgated its assailed Decision, denying the
appeal and affirming the trial court: 10

"ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs against
appellant."

Respondent Court 11 denied reconsideration via its assailed Resolution dated January 20, 1994, disposing:

"ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby DENIED."

The Facts

Version of the Prosecution

The facts, as found by the trial court, are as follows: 12

"At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan City
Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City
Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was
driving a Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The surveillance was being
made because of information that drug addicts were roaming the area in front of the Kalookan City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon a male
person in front of the cemetery who appeared high on drugs. The male person was observed to have reddish eyes and to
be walking in a swaying manner. When this male person tried to avoid the policemen, the latter approached him and
introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands.
The male person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person had in
his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the
wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana
contents. aisadc

The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was turned
over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet
and its suspected marijuana contents. The man turned out to be the accused ALAIN MANALILI y DIZON.

Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the same with
a white sheet of paper on which he wrote 'Evidence 'A' 4/11/88 Alain Manalili'. The white sheet of paper was marked as
Exhibit 'E-3'. The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit 'E-4').

Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a chemical
analysis of the subject marijuana residue (Exhibit 'D'). Cpl. Tamondong thereafter prepared a Joint Affidavit of the
apprehending policemen (Exhibit 'A'). Pat. Angel Lumabas handcarried the referral slip (Exhibit 'D') to the National Bureau
of Investigation (NBI), including the subject marijuana residue for chemical analysis. The signature of Pat. Lumabas
appears on the left bottom corner of Exhibit 'D'.

The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana residue at 7:40
o'clock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit 'D'.

It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which she identified.
(Exhibit 'E') 13 Mrs. Pascual referred to the subject specimen as 'crushed marijuana leaves' in her Certification dated April
11, 1988 (Exhibit 'F'). 14 These crushed marijuana leaves gave positive results for marijuana, according to the Certificate.

Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also found that the
'crushed marijuana leaves' gave positive results for marijuana. She then prepared a Final Report of her examinations
(Exhibit 'G').

After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it. (Exhibit 'E').
She then wrote identification notes on this letter-envelope. (Exhibit 'E-1').

Pat. Lumabas carried the Certification marked as Exhibit 'F' from the NBI Forensic Chemistry Section to Cpl. Tamondong.
Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit 'C')"

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery when he
was apprehended. 15

Version of the Defense

The trial court summarized the testimonies of the defense witnesses as follows: 16

"At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at A. Mabini
street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered the driver of the
tricycle to stop because the tricycle driver and his lone passenger were under the influence of marijuana. The policemen
brought the accused and the tricycle driver inside the Ford Fiera which the policemen were riding in. The policemen then
bodily searched the accused and the tricycle driver. At this point, the accused asked the policemen why he was being
searched and the policemen replied that he (accused) was carrying marijuana. However, nothing was found on the
persons of the accused and the driver. The policemen allowed the tricycle driver to go while they brought the accused to
the police headquarters at Kalookan City where they said they would again search the accused.

On the way to the police headquarters, the accused saw a neighbor and signaled the latter to follow him. The neighbor
thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accused was asked to
remove his pants in the presence of said neighbor and another companion. The policemen turned over the pants of the
accused over a piece of bond paper trying to look for marijuana. However, nothing was found, except for some dirt and
dust. This prompted the companion of the neighbor of the accused to tell the policemen to release the accused. The
accused was led to a cell. The policemen later told the accused that they found marijuana inside the pockets of his pants.

At about 5:00 o'clock in the afternoon on the same day, the accused was brought outside the cell and was led to the Ford
Fiera. The accused was told by the policemen to call his parents in order to 'settle' the case. The policemen who led the
accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who
told the accused to call his parents. The accused did not call his parents and he told the policemen that his parents did not
have any telephone.

At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the office of an inquest Fiscal. There,
the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the accused not to say anything.
The accused was then brought back to the Kalookan City Jail.

Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were stopped by
policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothing either on his
person or on the person of the accused when both were searched on April 11, 1988.

Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police Headquarters
on April 11, 1988. He said that the police searched the accused who was made to take off his pants at the police
headquarters but no marijuana was found on the body of the accused".

Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that tricycles were
allowed to ply in front of the Caloocan Cemetery. 17

The Rulings of the Trial and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the arresting
officers testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested" witnesses, testifying only on what
transpired during the performance of their duties. Substantially, they asserted that the appellant was found to be in
possession of a substance which was later identified as crushed marijuana residue.

The trial court disbelieved appellant's defense that this charge was merely "trumped up," because the appellant neither
took any legal action against the allegedly erring policemen nor moved for a reinvestigation before the city fiscal of
Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations, surmises or
conjectures. On the alleged "serious" discrepancies in the testimonies of the arresting officers, the appellate court ruled
that the said inconsistencies were insubstantial to impair the essential veracity of the narration. It further found petitioner's
contention — that he could not be convicted of illegal possession of marijuana residue — to be without merit, because the
forensic chemist reported that what she examined were marijuana leaves. cda

Issues

Petitioner assigns the following errors on the part of Respondent Court.

"I

The Court of Appeals erred in upholding the findings of fact of the trial court.
II

The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of the accused had
been proved (beyond) reasonable doubt.

III

The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution witnesses were
material and substantial and not minor.

IV

The Court of Appeals erred in not appreciating the evidence that the accused was framed for the purpose of extorting
money.

The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent with both innocence
and guilt.

VI

The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in evidence."

Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility of
prosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and (3) the
sufficiency of the prosecution evidence to sustain his conviction.

The Court's Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk

Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were products of
an illegal search. The Solicitor General, in his Comment dated July 5, 1994, which was adopted as memorandum for
respondent, counters that the inadmissibility of the marijuana leaves was waived because petitioner never raised this
issue in the proceedings below nor did he object to their admissibility in evidence. He adds that, even
assuming arguendo that there was no waiver, the search was legal because it was incidental to a warrantless arrest
under Section 5 (a), Rule 113 of the Rules of Court.

We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark case
of Terry vs. Ohio, 18 a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a
citizen on the street, interrogate him, and pat him for weapon(s):

". . . (W)here a police officer observes an 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 identified 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, and any weapon seized may properly be introduced in evidence against
the person from whom they were taken." 19

In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention and
detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. This
was the legitimate investigative function which Officer McFadden discharged in that case, when he approached petitioner
and his companion whom he observed to have hovered alternately about a street corner for an extended period of time,
while not waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a third
person. It would have been sloppy police work for an officer of 30 years experience to have failed to investigate this
behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified the
limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with
whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of
searches and seizures through the warrant procedure, excused only by exigent circumstances.

In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial
warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. 20 Section 2, Article III of
the 1987 Constitution, gives this guarantee:

"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."

Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a "fruit of the
poisonous tree," falling under the exclusionary rule:

"SEC. 3. . . .

(2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in any
proceeding."

This right, however, is not absolute. 21 The recent case of People vs. Lacerna enumerated five recognized exceptions to
the rule against warrantless search and seizure, viz.: "(1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against
unreasonable search and seizure." 22 In People vs. Encinada, 23 the Court further explained that "[in] these cases, the
search and seizure may be made only with probable cause as the essential requirement. Although the term eludes exact
definition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of
the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought
in connection with said offense or subject to seizure and destruction by law is in the place to be searched."

Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant.
In Posadas vs. Court of Appeals, 24 the Court held that there were many instances where a search and seizure could be
effected without necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case, members of the
Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They found
inside petitioner's bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal. gun
and a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to search
the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the
circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to
determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his
shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had red eyes
and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular
hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such
suspicious behavior was characteristic of drug addicts who were "high." The policemen therefore had sufficient reason to
stop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana in
petitioner's possession: 25

"FISCAL RALAR:

Q And why were you conducting surveillance in front of the Caloocan Cemetery, Sangandaan, Caloocan City?

A Because there were some informations that some drug dependents were roaming around at A. Mabini Street in front of
the Caloocan Cemetery, Caloocan City.

xxx xxx xxx

Q While you were conducting your surveillance, together with Pat. Angel Lumabas and one Arnold Enriquez, what
happened, if any?

A We chanced upon one male person there in front of the Caloocan Cemetery then when we called his attention he tried
to avoid us, then prompting us to approach him and introduce ourselves as police officers in a polite manner. cdtai

xxx xxx xxx

Q Could you describe to us the appearance of that person when you chanced upon him?

A That person seems like he is high on drug.

Q How were you able to say Mr. Witness that that person that you chanced upon was high on drug?

A Because his eyes were red and he was walking on a swaying manner.

Q What was he doing in particular when you chanced upon him?

A He was roaming around, sir.

Q You said that he avoided you, what did you do when he avoided you?

A We approached him and introduced ourselves as police officers in a polite manner, sir.

Q How did you introduce yourselves?

A In a polite manner, sir.

Q What did you say when you introduced yourselves?

A We asked him what he was holding in his hands, sir.

Q And what was the reaction of the person when you asked him what he was holding in his hands?

A He tried to resist, sir.

Q When he tried to resist, what did you do?

A I requested him if I can see what was he was (sic) holding in his hands.

Q What was the answer of the person upon your request?

A He allowed me to examine that something in his hands, sir.

xxx xxx xxx

Q What was he holding?

A He was holding his wallet and when we opened it, there was a marijuana (sic) crushed residue."
Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived the inadmissibility of any
evidence illegally obtained when he filed to raise this issue or to object thereto during the trial. A valid waiver of a right,
more particularly of the constitutional right against unreasonable search, requires the concurrence of the following
requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof;
and (3) he or she had an actual intention to relinquish the right. 26 Otherwise, the Courts will indulge every reasonable
presumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this
elementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise its
violation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases
where the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not
raised below cannot be pleaded for the first time on appeal. 27

Second Issue: Assessment of Evidence

Petitioner also contends that the two arresting officers' testimony contained "polluted, irreconcilable and unexplained"
contradictions which did not support petitioner's conviction.

We disagree. Time and again, this Court has ruled that the trial court's assessment of the credibility of witnesses,
particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it had the
opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts and
circumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect the
result of the case, we will not countenance a departure from this rule. 28

We concur with Respondent Court's ruling:

"(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution witnesses'
testimonies, We do not find them substantial enough to impair the essential veracity of their narration. In People vs. Avila,
it was held that — "As long as the witnesses concur on the material points, slight differences in their remembrance of the
details, do not reflect on the essential veracity of their statements."

However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full credence
on Pat. Espiritu's testimony is justified by tangible evidence on record. Despite Pat. Lumabas' contradictory testimony, that
of Espiritu is supported by the Joint Affidavit 29 signed by both arresting policemen. The question of whether the
marijuana was found inside petitioner's wallet or inside a plastic bag is immaterial, considering that petitioner did not deny
possession of said substance. Failure to present the wallet in evidence did not negate that marijuana was found in
petitioner's possession. This shows that such contradiction is minor and does not destroy Espiritu's credibility. 30

Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is
identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug. 31

The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual to be crushed
marijuana leaves. Petitioner's lack of authority to possess these leaves was established. His awareness thereof was
undeniable, considering that petitioner was high on drugs when stopped by the policemen and that he resisted when
asked to show and identify the thing he was holding. Such behavior clearly shows that petitioner knew that he was holding
marijuana and that it was prohibited by law. aisadc

Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the extortion
angle in this case. Petitioner did not file any administrative or criminal case against the arresting officers or present any
evidence other than his bare claim. His argument that he feared for his life was lame and unbelievable, considering that
he was released on bail and continued to be on bail as early as April 26, 1988. 32 Since then, he could have made the
charge in relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is viewed by
this Court with disfavor, because it is easy to concoct and fabricate. 33

The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing
petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine of six thousand
pesos. This Act requires the imposition of an indeterminate penalty:

"SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if
the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same. (As amended by Act No. 4225.)

"SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to
those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted
of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence;
to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to
those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment
at the time of approval of this Act, except as provided in Section 5 hereof." (Emphasis supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession of
marijuana:

"Sec. 8. . . .

The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to
twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian
hemp."

Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of imprisonment
ranging from six years and one day to twelve years. 34

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is
sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY
a FINE of SIX THOUSAND PESOS. Costs against petitioner.

SO ORDERED.
 EN BANC

[G.R. No. 83988. May 24, 1990.]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S RIGHTS
(ULAP), petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

DECISION

PADILLA, J p:

In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the declaration of the
checkpoints as unconstitutional and their dismantling and/or banning, was dismissed. cdphil

Petitioners have filed the instant motion and supplemental motion for reconsideration of said decision. Before submission
of the incident for resolution, the Solicitor General, for the respondents, filed his comment, to which petitioners filed a
reply.

It should be stated, at the outset, that nowhere in the questioned decision did this Court legalize all checkpoints, i.e.
at all times and under all circumstances. What the Court declared is, that checkpoints are not illegal per se. Thus, under
exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and
safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this
proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no
reason to remain.

Recent and on-going events have pointed to the continuing validity and need for checkpoints manned by either military or
police forces. The sixth (6th) attempted coup d'etat (stronger than all previous ones) was staged only last 1 December
1989. Another attempt at a coup d'etat is taken almost for granted. The NPA, through its sparrow units, has not relented
but instead accelerated its liquidation of armed forces and police personnel. Murders, sex crimes, hold-ups and drug
abuse have become daily occurrences. Unlicensed firearms and ammunition have become favorite objects of trade.
Smuggling is at an all-time high. Whether or not effective as expected, checkpoints have been regarded by the authorities
as a security measure designed to entrap criminals and insurgents and to constitute a dragnet for all types of articles in
illegal trade.

No one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and
practices, or commend its political, social and economic policies or performance. But, at least, one must concede to it the
basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public
welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the
reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has
selected. cdphil

Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free passage without
interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle's
occupants are required to answer a brief question or two. 1 For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks
cannot be regarded as violative of an individual's right against unreasonable search.

These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme Court:

"Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate
traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the
location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually
involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is
visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public
interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making
overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials
will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field
officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals
them there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or
operating a checkpoint is unreasonable is subject to post-stop judicial review." 2

The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and, therefore, violative
of the Constitution. 3

As already stated, vehicles are generally allowed to pass these checkpoints after a routine inspection and a few
questions. If vehicles are stopped and extensively searched, it is because of some probable cause which justifies a
reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the vehicle are
or have been instruments of some offense. Again, as held by the U.S. Supreme Court —

"Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search
of a residence or office. Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302(1949); Carroll v. United
States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39 ALR 790 (1925). The cases so holding have, however, always insisted
that the officers conducting the search have 'reasonable or probable cause' to believe that they will find the instrumentality
of a crime or evidence pertaining to a crime before they begin their warrantless search. . . ." 4

Besides these warrantless searches and seizures at the checkpoints are quite similar to searches and seizures
accompanying warrantless arrests during the commission of a crime, or immediately thereafter. In People vs. Kagui
Malasuqui, it was held —

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many instances." 5

By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and departure areas of an
international airport, is a practice not constitutionally objectionable because it is founded on public interest, safety, and
necessity.

Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses committed by the military
manning the checkpoints. The Court's decision was concerned with power, i.e. whether the government employing the
military has the power to install said checkpoints. Once that power is acknowledged, the Court's inquiry ceases. True,
power implies the possibility of its abuse. But whether there is abuse in a particular situation is a different "ball game" to
be resolved in the constitutional arena.

The Court, like all other concerned members of the community, has become aware of how some checkpoints have been
used as points of thievery and extortion practiced upon innocent civilians. Even the increased prices of foodstuffs coming
from the provinces, entering the Metro Manila area and other urban centers, are largely blamed on the checkpoints,
because the men manning them have reportedly become "experts" in mulcting travelling traders. This, of course, is a
national tragedy. llcd

But the Court could not a priori regard in its now assailed decision that the men in uniform are rascals or thieves. The
Court had to assume that the men in uniform live and act by the code of honor and they are assigned to the checkpoints
to protect, and not to abuse, the citizenry. 6 The checkpoint is a military "concoction." It behooves the military to improve
the QUALITY of their men assigned to these checkpoints. For no system or institution will succeed unless the men behind
it are honest, noble and dedicated.

In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military is not above
but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who man checkpoints,
who abuse their authority act beyond the scope of their authority and are, therefore, liable criminally and civilly for their
abusive acts. 7 This tenet should be ingrained in the soldiery in the clearest of terms by higher military authorities.

ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial is FINAL.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 141137. January 20, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. VICTOR DIAZ VINECARIO; ARNOLD ROBLE and GERLYN
WATES, appellants.

DECISION

CARPIO MORALES, J p:

From the Decision of July 20, 1999, as amended by Order of September 9, 1999, of the Regional Trial Court of Davao
City, Branch 16, finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of
violation of Article IV of Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659),
and imposing upon them the penalty of reclusion perpetua, they lodged the present appeal.

The Information dated April 25, 1995, filed against appellants reads as follows:

The undersigned accuses the above-named accused for VIOLATION OF SECTION 4, ARTICLE II IN RELATION TO
SECTION 21, ARTICLE IV OF R.A. 6425, committed as follows:

That on or about April 10, 1995 in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the
above-mentioned accused, conspiring, confederating and helping one another, without being authorized by law, willfully,
unlawfully and feloniously transported, delivered and possessed 1.7 kilos dried marijuana leaves which are prohibited
drugs.

CONTRARY TO LAW. 1

Upon arraignment on September 11, 1995, appellants, duly assisted by counsel, pleaded not guilty to the offense
charged.

The facts as established by the prosecution are as follows:

On the night of April 10, 1995, at around 10:45 p.m., as about fifteen police officers were manning a checkpoint at Ulas,
Davao City pursuant to COMELEC Resolution No. 2735, otherwise known as the COMELEC gun ban, a Honda TMX
motorcycle with three men on board sped past them. 2 One of the police officers blew his whistle 3 and ordered them to
return to the checkpoint.

Obliging, the three men aboard the motorcycle returned to the checkpoint. SPO1 Haydenburge Goc-ong (SPO1 Goc-ong)
of the 11th Regional Mobile Force 4th Company thereupon asked them why they sped away to which appellant Victor
Vinecario (Vinecario), who was seated behind appellant Arnold Roble (Roble) and in front of appellant Gerlyn Wates
(Wates) on the motorcycle, retorted that he is a member of the army. 4 When asked by the law enforcers to produce an
identification card, he could not, however, offer any. At this point, the police officers noticed that a big military backpack
was slung over the right shoulder of Vinecario who was observed, as were his co-appellants, to be afraid and acting
suspiciously. 5 SPO1 Goc-ong thus asked Vinecario what the contents of the backpack were. Vinecario answered that it
merely contained a mat and proceeded to pass it to Wates, who in turn passed it to Roble who, however, returned it to
Vinecario. 6

Suspecting that the backpack contained a bomb, SPO1 Goc-ong instructed his men to disperse, following which he
ordered Vinecario to open the bag. Vinecario did as ordered and as SPO1 Goc-ong noticed something wrapped in paper,
he told Vinecario to take the same out. Again Vinecario obliged, albeit reiterating that it was only a mat.

SPO1 Goc-ong then touched the stuff wrapped in paper upon which Vinecario grabbed it, 7 resulting to the tearing off of
the paper wrapper. Soon the smell of marijuana wafted in the air.

Vinecario thereafter told SPO1 Goc-ong "let us talk about this," 8 but the latter ignored Vinecario and instead called his
Commanding Officer and reported to him that marijuana was found in Vinecario's possession.
On orders of the Commanding Officer, the other police officers brought appellants along with two bundles of marijuana,
the backpack and the motorcycle to the battalion office at Camp Catitipan in Davao City and were turned over to one PO2
Cabalon, an investigator of Regional Mobile Force 11. Before proceeding to said battalion office, however, the incident
was blottered 9 by PO3 Edward Morado at the Buhangin Police Station. 10

On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal (PO1 Carvajal) and PO1 Pual Padasay brought the confiscated
suspected marijuana to the camp's crime laboratory for examination 11 which determined it to weigh 1,700 grams 12 and
to be indeed positive therefor. 13

As for appellants, their version of the incident follows:

Vinecario, then a member of the 25th Infantry Battalion of the 6th Infantry Division of the Philippine army stationed at
Pagakpak, Pantukan, 14 approached motorcycle driver Wates at a terminal in Andile, Mawab and requested him to bring
him to his elder brother at Parang, Maguindanao for a fee of P500.00 which he paid. 15 The two thus proceeded to
Carmen, Panabo where they picked up Roble to alternate with Wates as driver, and at 8:00 a.m., the three left for
Parang. 16

On reaching Parang at about 1:20 p.m., Vinecario borrowed P3,000.00 from his brother Teofanis to shoulder the medical
expenses of his son. At about 4:30 p.m., after partaking of snacks at Teofanis' residence, appellants left for Davao
City. aIDHET

Along Parang Highway, Abdul Karim Datolarta, Vinecario's former co-employee at Emerson Plywood where he previously
worked, blocked the motorcycle. 17 Vinecario thus alighted from the motorcycle and shook hands with Datolarta 18 who
asked where they were headed for and requested that he ride with them. Vinecario turned Datolarta down as there was
no longer any room in the motorcycle. Datolarta then asked if he (Vinecario) could take his bag of clothes and bring it to
his cousin, one Merly, in Roxas, Tagum. Without examining its contents, Vinecario acquiesced, took Datolarta's bag and
left with his co-appellants. 19

On reaching Ulas in the evening of the same day, appellants, seeing that there was a checkpoint,  20 sped past it. When
they were about 50 to 60 meters away from the checkpoint, they heard a whistle, prompting Wates to tap Vinecario, telling
him that the whistle came from the checkpoint. Vinecario then told Roble to go back to the checkpoint.

While at the checkpoint, five police officers approached appellants and instructed them to alight from the motorcycle. One
of the officers asked Vinecario who he was, and Vinecario identified himself as a member of the Philippine National
Police. 21 The officer asked for identification and when Vinecario could not produce any, the former got the backpack
slung on Vinecario's shoulder.

The same officer then asked Vinecario if they could open the bag, and as Vinecario acquiesced, two officers opened the
bag upon which they shouted that it contained marijuana. Vinecario then grabbed the backpack to confirm if there was
indeed marijuana. At that instant, the police officers held his hands and brought him, together with the other appellants, to
the Buhangin Police Station, and later to Camp Catitipan.

At the camp, appellants were investigated by police officials without the assistance of counsel, following which they were
made to sign some documents which they were not allowed to read. 22

The trial court, by Decision of July 20, 1999, found appellants guilty as charged. The dispositive portion of the decision
reads, quoted verbatim:

WHEREFORE, finding the evidence of the prosecution, more than sufficient to prove the guilt of all three accused beyond
reasonable doubt of the offense charged, accused PFC Victor Vinecario, Arnold Roble and Gerlyn Wates, pursuant to
Sec. 4, Art. II in relation to Art. IV or (sic) Rep. Act 6425 as amended by Rep. Act 7659, Sec. 20, par. 5 thereof, are jointly
sentence (sic) to suffer the supreme penalty of death  by lethal injection, under Rep Act 8177 in the manner and procedure
therein provided, in relation to Sec. 24 of Rep. Act 7659, amending Art. 81 of the Revised Penal Code.

Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of Court of RTC 16 Davao City, is ordered to elevate the
entire records of this case with the Clerk of Court, Supreme Court Manila, for the automatic review of this Decision, after
its promulgation.
SO ORDERED. 23 (Underscoring supplied)

By Order of September 9, 1999, the trial court set aside its decision of July 20, 1999 and disposed as follows,
quoted verbatim:

Accordingly, all accused (sic) motion for reconsideration on this aspect, on the imposition of the penalty against all
accused, even if invoked only be accused Venecaio (sic) through his counsel de oficio, will apply to all accused since
there exists conspiracy of all in the commission of the offense charged.

Judgment of this court, dated July 20, 1999, is accordingly set aside and reconsidered, only insofar as the imposition of
the supreme penalty of death through lethal injection under Republic Act No. 8177, is concerned.

All accused PFC Victor Venecario, Arnold Roble and Gerlyn Wates, are instead sentence (sic) to suffer the penalty of
reclusion perpetua, pursuant to Art. IV, Sec. 21, in relation to Art. IV of Republic Act No. 6425 as amended by Republic
Act No. 7659, Sec. 20, par. 5 thereof, in accordance with Art. 63 of the Revised Penal Code, as decided by the Supreme
Court in the recent case of Peope (sic) vs. Ruben Montilla G.R. No. 123872 dated January 30, 1998.

However, the findings of this court for the conviction of all aaccused (sic) of the offense charged, is (sic) sustained. The
corresponding motion (sic) for reconsideration of all accused through their counsel for their acquittal of (sic) the offense
charged, is denied, for lack of merit.

SO ORDERED. 24 (Emphasis and Underscoring supplied)

The prosecution then filed a Motion for Reconsideration 25 dated September 14, 1995 of the above-mentioned Order of
the trial court, it arguing that the commission of the offense charged against appellants was attended by an aggravating
circumstance in that it was committed by an organized or syndicated crime group, thus warranting the imposition of the
death penalty.

In the meantime, Roble and Wates filed their Notice of Appeal 26 on September 15, 1999. Vinecario followed suit and
filed his Notice of Appeal. 27

The trial court, by Order dated September 22, 1999, denied the prosecution's Motion.

In their brief, Roble and Wates assign the following errors:

1. THE TRIAL COURT'S OBSERVATION THAT APPELLANTS WATES AND ROBLE CONSPIRED WITH VICTOR
VINECARIO IN TRANSPORTING MARIJUANA FROM PARANG, MAGUINDANAO IS NOT BORNE BY THE EVIDNECE
(sic) ON RECORD AND SHOWS THAT THE TRIAL COURT GRAVELY ERRED IN MISAPPREHENDING FACTS IF
NOT A COMPLETE DISREGARD OF THE EVIDENCE, BOTH DOCUMENTARY AND TESTIMONIAL.

2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO AFFORD EVIDENTIARY WEIGHT TO THE RECANTATION
MADE BY POLICE OFFICERS HAYDENBURG GOC-ONG AND VICENTE CARVAJAL THAT BOTH APPELLANTS
WATES AND ROBLE WERE NOT NERVOUS AND APPREHENSIVE AT THE THE (sic) OF THE OPENING OF THE
MILITARY PACK CONTAINING MARIJUANA NEAR THE CHECKPOINT.

3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF APPELLANTS
WATES AND ROBLE THAT THEY WERE MERELY HIRED BY VICTOR VINECARIO TO BRING HIM TO PARANG,
MAGUINDANAO FOR A FEE OF P500.00 WITH FREE FOOD AND GASOLINE.

4. THE TRIAL COURT GRAVELY ERRED IN DECLARING THE RENTAL OF P500.00 WHICH VINECARIO PAID TO
THE OWNER OF THE [MOTORCYCLE] AS INADEQUATE BY TAKING JUDICIAL NOTICE OF THE BUS FARE OF
P268.00 FROM MACO, DAVAO PROVINCE TO SUN WAY CROSSING, MAGUINDANAO DOWN TO PARANG,
MAGUINDANAO. 28

Wates and Roble argue that there is no iota of evidence to prove that they acted with unity of purpose and in the
execution of any unlawful objective with Vinecario. 29 They assert that they had no prior knowledge of Vinecario's plan to
meet with a man who would give the backpack containing marijuana; that prosecution witnesses SPO1 Goc-ong and PO1
Carvajal's declaration that they (appellants Wates and Roble) were not nervous, uneasy or apprehensive when the
backpack was opened buttresses their claim that they did not conspire with Vinecario; and that the prosecution's theory of
conspiracy was merely based on the testimony of PO1 Carvajal that they acted nervously when the backpack was
ordered opened for inspection; that there was a "great variance" in the testimonies of SPO1 Goc-ong and PO1 Carvajal in
the direct examination and their testimonies on rebuttal as to the events that transpired on April 10, 1995, thus casting
serious doubts on the trial court's findings of guilt.

On September 17, 2001, Vinecario filed an Urgent Motion to Withdraw Appeal, 30 stating that he is "practically satisfied
with the decision of the trial court"; that "he would not waste anymore the effort of the honorable Supreme Court Justices
in further reviewing his case"; and that as he was "driven by the sincerest desire in renewing his life," he "irrevocably
moves for the withdrawal of his appeal." On even date, Roble and Wates likewise filed an Urgent Motion to Withdraw
Appeal, 31 stating that they admit the commission of the offense for which they were convicted; that they are satisfied with
the decision of the trial court; and that they are already serving the penalty for their offense and "realize the overt
admittance of guilt as the only vehicle in [their] gradual renewal."

By Resolution of November 27, 2001, this Court denied the Motions of appellants and directed Vinecario to file his brief
within forty-five days from notice of the resolution.

In a brief dated January 25, 2002, Vinecario attributes the following errors to the trial court:

I. THE COURT A QUO GRAVELY ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-
APPELLANT AND THE SEIZURE OF THE ALLEGED 1,700 GRAMS OF MARIJUANA AS (sic) VALID. ASHECD

II. THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE

ALLEGED 1,700 GRAMS OF MARIJUANA AS IT WAS A PRODUCT OF AN ILLEGAL SEARCH.

III. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF
PROSECUTION WITNESSES AND IN GIVING THE POLICEMEN THE PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF DUTY DESPITE THE APPARENT IRREGULARITIES IN THE MANNER OF ARRESTING THE
ACCUSED-APPELLANT.

IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE
CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. 32

Vinecario argues that the prosecution failed to show that the search conducted by the police officers was incident to a
lawful arrest; that he could not have been deemed to have consented to the search as any such consent was given under
intimidating or coercive circumstances; and that there existed no probable cause to justify the search and seizure of the
backpack, hence, the marijuana is inadmissible in evidence, it being a product of illegal search.

Vinecario adds that the police officers who arrested and investigated him failed to inform him of his  rights to remain silent
and to have competent and independent counsel of his choice, thereby violating Section 12(1), Article III of
the Constitution. 33

The rule is constitutionally enshrined that no search and seizure can lawfully be conducted without a valid warrant issued
by a competent judicial authority. Section 2, Article III of the Constitution so ordains:

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.

And Section 3(2), Article III of the same Constitution mandates that any evidence obtained in violation of the right of the
people under Section 2 shall be inadmissible for any purpose in any proceeding.

The constitutional proscription against warrantless searches and seizures admits of certain exceptions, however. Search
and/or seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following
instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs
laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches
and seizures; and (6) stop-and-frisk situations. 34

Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists. 35 For as long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be
regarded as violative of an individual's right against unreasonable search. 36

. . . [C]heckpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized
government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed
and installed by the government.

xxx xxx xxx

No one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and
practices, or commend its political, social and economic policies or performance. But, at least, one must concede to it the
basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public
welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the
reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has selected.

Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorists' right to "free passage without
interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's
occupants are required to answer a brief question or two. . . .

These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme Court:

"Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate
traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the
location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually
involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is
visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public
interest. The location of a fixed checkpoint is not chosen by officers in the field, but by official responsible for making
overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials
will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field
officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals
than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or
operating a checkpoint is unreasonable is subject to post-stop judicial review." 37

Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a gun ban during an election period
issued pursuant to Section 52(c) of the Omnibus Election Code (Batas Pambansa Blg. 881). 38 The national and local
elections in 1995 having been held on May 8, the present incident, which occurred on April 10, 1995, was well within the
election period.

Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only
be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause
which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents
of the vehicle are or have been instruments of some offense. 39

Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent
man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the
place sought to be searched. The required probable cause that will justify a warrantless search and seizure is not
determined by any fixed formula but is resolved according to the facts of each case.

Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence
of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or  where the
accused was acting suspiciously, and attempted to flee. 40 (Emphasis supplied).
That probable cause existed to justify the search conducted by the police officers at the checkpoint is gathered from the
following testimony of SPO1 Goc-ong:

Q: You said you saw three on board a motorcycle what did your unit do when these three persons approached?

A: We were waiting for them. When they arrived they stopped and speeded away.

Q: What was your reaction when you saw the motor speeding away?

A: One of my men blew his whistle ordering to (sic) return back (sic).

xxx xxx xxx

Q: When they returned back (sic) what happened?

A: When they returned back (sic) I asked them why they speeded away?

Q: What did they answer?

A: One of them said that he is a member of the army.

Q: If that person who said that he is a member of the army is in court, can you point to him?

A: (Witness went down from the witness stand and pointed to a man wearing yellow t-shirt who stood up and when asked about his
name answered that he is Victor Venecario). acADIT

xxx xxx xxx

Q: What was your reaction when Venecario failed to show any identification papers to show that he is really a member of the army?

A: We saw his big backpack and asked him what was inside.

Q: Who was carrying that big backpack?

A: Venecario.

xxx xxx xxx

Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him?

A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different reactions (sic).

Q: They were acting suspiciously?

A: Yes.

Q: That is what you have observed from their faces?

A: Yes, sir.

Q: What did Venecario do when you asked him about the contents of that backpack?

A: He said that it is a mat and passed it on to his companion.

Q: You said he passed it on to his companion, there were two (2) companions, to whom did he pass it on?

A: He passed it on to Wates and Wates passed it on to Roble.

Q: What did Roble do when Wates passed it to him?

A: Roble returned it back (sic) to Venecario.

Q: So what was your reaction when you saw the three passing the bag from one person to another?

A: My suspicion was it was a bomb and ordered my men to scatter.

Q: Tell us why are you (sic) concerned about explosives was there any incident prior to that checkpoint?

A: Election was past (sic) approaching and there was a threat that Davao City will be bombed.

Q: Prior to that was there any incident?

xxx xxx xxx

A: In Ipil, Zamboanga on April 4.

Q: If you recall when was that?

A: April 4 of the same year.

Q: You said the bag was passed to Venecario and you told your men to scatter, what happened next?

A: I ordered Venecario to open the backpack.

Q: What did Venecario do when you ordered him to open?

A: They opened the backpack. 41

SPO1 Goc-ong's testimony was corroborated by PO1 Vicente Carvajal:

Q: At about 10:45 in the evening of that date April 10, 1995 do you recall of any unusual incident while you were conducting that
checkpoint?

A: Yes, sir.

Q: What was that incident all about?

A: At that time, while we were conducting a checkpoint, we saw this motorcycle passing and flagged them to stop and there were three
(3) persons and one was manning and they briefly stopped but speeded away.

xxx xxx xxx

Q: When these three (3) persons retured (sic) back (sic) what happened?

A: The one riding introduced himself as a member of the army.

xxx xxx xxx

Q: You said these three persons were nervous and one of them introduced himself as an army man, what did you do?

A: I asked for an ID.

Q: Who among you asked for an ID?

A: Sgt. Goc-ong.

Q: Where were you at that time when Goc-ong asked for his ID?

A: I was behind him because I backed him up.

Q: What was the reaction of Venecario when he was asked to produce an ID?

A: He answered that he has no ID.

Q: What was the reaction of the group when Venecario failed to show any ID that he was an army man?

A: Our other companion moved closer as security.

Q: Why?

A: We were on alert because on April 4 the one who attacked were (sic) in uniform.
Q: At that time what was Venecario wearing?

A: He was in camouflage and wearing sleepers (sic).

xxx xxx xxx

Q: After that what happened?

A: We were able to observe that he was carrying a bag.

Q: What was the reaction of Venecario when he was asked what was (sic) the contents of the bag?

A: He appeared to be hesitant and he said that it contained clothes.

Q: Before that what did Venecario do?

A: He placed it in (sic) his shoulder.

Q: What did he do with the backpack?

A: When asked he passed it to his other companions.

Q: What did Venecario when he passed it to his companion?

A: Venecario passed it to his companion and that companion passed it to his other companion.

Q: After this companion received the backpack from his companion what did he do?

A: He returned back (sic) to Venecario.

Q: They passed it from one person to another until it was returned to Venecario?

A: Yes, sir.

xxx xxx xxx

Q: You said that backpack was passed from one person to another and when he got hold of that backpack what happened?

A: He opened the backpack.

Q: Who told him to open the backpack?

A: Sgt. Goc-ong. 42

In light then of appellants' speeding away after noticing the checkpoint and even after having been flagged down by police
officers, their suspicious and nervous gestures when interrogated on the contents of the backpack which they passed to
one another, and the reply of Vinecario, when asked why he and his co-appellants sped away from the checkpoint, that he
was a member of the Philippine Army, apparently in an attempt to dissuade the policemen from proceeding with their
inspection, there existed probable cause to justify a reasonable belief on the part of the law enforcers that appellants were
offenders of the law or that the contents of the backpack were instruments of some offense. AEHTIC

As to Vinecario's allegation that his constitutional rights were violated during the custodial investigation conducted by the
police officers, the same is relevant and material only when an extrajudicial admission or confession extracted from an
accused becomes the basis of his conviction. 43 In the case at bar, the trial court convicted appellants on the basis of the
testimonies of the prosecution witnesses, particularly those of SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal.

Finally, Vinecario harps on his defense of denial which he recounted as follows:

Q: After leaving the residence of your brother was there any unusual incident that took place?

A: Yes, Sir.

Q: What was that?

A: The moment we arrived there there was a person who blocked us.

Q: Where?

A: Parang Highway.

Q: Coming here to Davao?

A: Yes.

Q: What happened after Crossing Parang?

A: There was a person who blocked us.

Q: A former companion of yours?

A: Yes.

Q: A former soldier?

A: No, Sir.

Q: You said your former companion, am I correct?

A: Before I became a soldier, I worked in Emerson Plywood.

Q: So that person who flagged down you were (sic) your former companion?

A: Yes:

Q: You are familiar with him?

A: I know him very well.

Q: He was your close friend?

A: Yes.

Q: What is the name of that person who stopped you?

A: Abdul Karim Datolarta.

Q: He was alone when he stopped you?

A: Yes, Sir.

Q: What happened when your friend Abdul Karin (sic) Datolarta stopped you?

A: When he stopped us, I immediately disembarked from the motor vehicle and shook hands with him.

Q: He was the one who stopped you or you were the one who told the driver to stop?

A: My friend.

Q: You immediately recognized the face of that friend of yours?

A: Not yet.

Q: What else happened aside from shaking hands and greeting?

A: He asked me where I was heading.

Q: What was your answer?

A: I told him that I am going back to Davao.

Q: What else did he tell you?

A: He told me if he can also ride with us.

Q: What did you tell him?

A: I told him we were already three.

Q: What happened next?

A: Since I refused he asked me if I could bring his bag and he mentioned the name of that cousin of his in Tagum.

Q: He mentioned the name?

A: Yes, Merly.

Q: What is the family name?

A: He just mentioned Merly who is residing in Tagum.

Q: Where in Tagum?

A: Roxas, Tagum.

Q: What did you do when he asked you to bring that bag to his cousin in Tagum?

A: I asked him what was (sic) the contents?

Q: What did he answer you?

A: He answered clothes.

Q: What did you do?

A: Because were (sic) were in a hurry I slung it in (sic) my shoulder.

Q: You did not become suspicious?

A: No more because I trusted the person and I have an emergency to take (sic) that time. 44 

Vinecario's account — that in the evening of April 10, 1995, while he and his co-appellants were cruising along the
highway, a person whom he failed to recognize but who turned out to be an acquaintance, Abdul Karim Datolarta, flagged
down 45 the motorcycle, and as requested by Datolarta, he readily agreed to bring a backpack to Datolarta's cousin
without checking its contents — is incredible, contrary to human experience, and taxes credulity. Datolarta was not even
apprehended nor presented at the trial, thus further eliciting serious doubts on Vinecario's tale.

The defense of denial, like alibi, has invariably been viewed by the courts with disfavor for it can just as easily be
concocted and is a common and standard defense ploy in most prosecutions of the Dangerous Drugs Act. 46

The categorical and consistent testimonies, and the positive identification by prosecution witnesses SPO1 Goc-ong and
PO1 Carvajal, against whom no ill motive to falsely charge appellants was shown, must thus then prevail over the
unconvincing alibi and unsubstantiated denial of appellants.

As for the challenged finding by the trial court of conspiracy among appellants, the same fails.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to
commit it. 47 Where the acts of the accused collectively and individually demonstrate the existence of a common design
towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as
principals. 48 To exempt himself from criminal liability, the conspirator must have performed an overt act to dissociate or
detach himself from the unlawful plan to commit the crime. 49

In People v. Concepcion, 50 this Court held:

. . . Proof of agreement need not rest on direct evidence as the same may be inferred from the conduct of the parties
indicating a common understanding among them with respect to the commission of the offense. It is not necessary to
show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful
scheme or the details by which an illegal objective is to be carried out. It may be deduced from the mode and manner in
which the offense was perpetrated or inferred from the acts of the accused evincing a joint or common purpose and
design, concerted action and community of interest.

In the case at bar, as established by the evidence, appellants connived in unlawfully transporting the subject marijuana.
Roble, who was driving the motorcycle at Ulas, did not stop but instead sped away upon seeing the checkpoint in a clear
attempt to avoid inspection by the police officers. When asked as to the contents of the backpack by SPO1 Goc-ong,
appellants passed the same to one another, indicating that they knew its contents. These circumstances manifest
appellants' concerted efforts and cooperation towards the attainment of their criminal objective. ITScHa

Wates and Roble assail the credibility of prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, they contending that
these witnesses contradicted their testimonies-in-chief when they subsequently testified on rebuttal that appellants were
not nervous or apprehensive at all when they were being inspected by the policemen.

It bears noting, however, that the alleged conflicting observations of SPO1 Goc-ong and PO1 Carvajal referred to by
Roble and Wates on their deportment pertain to different stages of the checkpoint inspection as a scrutiny of the records
reveals. Thus, in his direct examination, SPO1 Goc-ong testified as follows:

Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him?

A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different reactions (sic).

Q: They were acting suspiciously?

A: Yes.

Q: That is what you observed in their faces?

A: Yes, sir. 51

PO1 Carvajal, on cross-examination, echoed Goc-ong's observations on appellants' deportment upon returning to the checkpoint:

Q: You said when these three (3) suspects riding the motorcycle returned and stopped you said you noticed one of them was nervous,
did I get you right?

A: Yes, sir.

Q: Only one was nervous?

A: All of them.

Q: When you said they appeared to be nervous, could that mean that they were trembling?

A: Yes, sir.

Q: In fact they were pale, is that correct?

A: Yes.

Q: You noticed they were pale despite the fact that it was dark and it was 10:00 o'clock in the evening?

A: There was light.

Q: The place was well-lighted?

A: Yes, sir. 52

On rebuttal, SPO1 Goc-ong stated that appellants were not anxious or apprehensive when he flagged them down as they
crossed the checkpoint. 53
PO1 Carvajal, on the other hand, testified on rebuttal that Wates was not nervous as Vinecario's backpack was being
opened. 54

As to the other alleged discrepancies pointed out by Wates and Roble, the following arguments of the Office of the
Solicitor General, which are quoted with approval, should dispose of the same:

It is incorrect to suggest that just because SPO1 Goc-ong testified that other vehicles passed through the checkpoint
before the appellants arrived, the latter could not have sped away from the checkpoint. SPO1 Goc-ong did not give any
testimony that other vehicles were still at the checkpoint at the time the appellants arrived. On the contrary, he testified
there was no other vehicle ahead of the appellants at the checkpoint when the latter arrived on their motorcycle (TSN,
June 17, 1999, p. 7).

It is also incorrect to suggest that appellants may not have noticed the checkpoint just because SPO1 Goc-ong made no
mention of using reflectorized objects at the checkpoint. As described earlier in his Brief, this witness explained that the
checkpoint was visible because it had a sign board at the middle of the road that read, "COMELEC GUN BAN" (TSN,
June 17, 1999, pp. 6 and 8). There is no way for appellants not to have noticed the checkpoint. 55

In fine, appellants' defenses fail in light of their clearly proven act of delivering or transporting marijuana.

The evidence shows that accused-appellant was apprehended in the act of delivering or transporting illegal
drugs. "Transport" as used under the Dangerous Drugs Act is defined to mean: "to carry or convey from one place to
another." When accused-appellant used his vehicle to convey the package containing marijuana to an unknown
destination, his act was part of the process of transporting the said prohibited substance. Inherent in the crime of
transporting the prohibited drug is the use of a motor vehicle. The very act of transporting a prohibited drug, like in the
instant case, is a malum prohibitum since it is punished as an offense under a special law. The mere commission of the
act constitutes the offense and is sufficient to validly charge and convict an individual committing  the act, regardless of
criminal intent. Since the appellant was caught transporting marijuana, the crime being mala prohibita, accused-
appellant's intent, motive, or knowledge, thereof need not be shown. 56 (Underscoring supplied)

A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the penalty of reclusion perpetua to
death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall transport any prohibited drug. Section 20, Article IV of the same act provides that the
penalty imposed in Section 4 shall be applied if the dangerous drug is, with respect to marijuana, 750 grams or more. In
the case at bar, the marijuana involved weighed 1,700 grams. Since the law prescribes two indivisible penalties, a resort
to Article 63 of the Revised Penal Code 57 is necessary. There being no mitigating nor aggravating circumstance that
attended the commission of the offense, the lesser penalty of reclusion perpetua was properly imposed by the trial court.
A fine of P500,000.00 should, however, been likewise imposed on the appellants in solidum in accordance with the law.

WHEREFORE, the decision of the Regional Trial Court, Davao City, Branch 16, in Criminal Case No. 35233-95 finding
appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of illegally transporting
marijuana under Section 4, Article II of Republic Act No. 6425, as amended, is hereby AFFIRMED with MODIFICATION.
As modified, appellants are sentenced to each suffer the penalty of reclusion perpetua and solidarily pay a fine of
P500,000.00.

SO ORDERED.
 FIRST DIVISION

[G.R. No. 113271. October 16, 1997.]

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION and ANTONIA MELODIA CATOLICO, respondents.

DECISION

DAVIDE, JR., J p:

"Nor is he a true Servant [who] buys dear to share in the Profit with the Seller." 1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent Antonia Melodia
Catolico (hereafter Catolico) not a "true Servant," thereby assailing the 30 September 1993 decision 2 and 2 December
1993 Resolution 3 of the National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which
sustained the reinstatement and monetary awards in favor of private respondent 4 and denied the petitioner's motion for
reconsideration. 5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice President-General Manager Emma R. Co
warning her not to dispense medicine to employees chargeable to the latter's accounts because the same was a
prohibited practice. On the same date, Co issued another memorandum 7 to Catolico warning her not to negotiate with
suppliers of medicine without consulting the Purchasing Department, as this would impair the company's control of
purchases and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was "due to
negligence," since fellow employee Irene Soliven "obtained the medicines in bad faith and through misrepresentation
when she claimed that she was given a charge slip by the Admitting Dept." Catolico then asked the company to look into
the fraudulent activities of Soliven. 8

In a memorandum 9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico against
the "rush delivery of medicines without the proper documents."

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involving
Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales Invoice No. 266
representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previous P.O.'s issued to YSP, Inc. showed
that the price per bottle is P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle (or total
of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832 dated December 15, 1988, Verification
was made to YSP, Inc. to determine the discrepancy and it was found that the cost per bottle was indeed overpriced.
YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents refund of jack-up price of
ten bottles of Voren tablets per sales invoice no. 266 as per their check voucher no. 629552 (shown to the undersigned),
which was paid to Ms. Catolico through China Bank check no. 892068 dated November 9, 1989 . . .

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that she is unaware of
the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmed that the
check amounting to P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms. Catolico even asked Ms.
Saldana if she opened the envelope containing the check but Ms. Saldana answered her "talagang ganyan, bukas." It
appears that the amount in question (P640.00) had been pocketed by Ms. Catolico. 10 aisadc

Forthwith, in her memorandum 11 dated 31 January 1990, Co asked Catolico to explain, within twenty-four hours, her side
of the reported irregularity. Catolico asked for additional time to give her explanation, 12 and she was granted a 48-hour
extension from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6 February 1990 to 7
March 1990, she would be placed on preventive suspension to protect the interests of the company. 13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her to be able
to make a satisfactory explanation. In said letter she protested Saldaña's invasion of her privacy when Saldaña opened an
envelope addressed to Catolico. 14

In a letter 15 to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she received from
YSP was a Christmas gift and not a "refund of overprice." She also averred that the preventive suspension was ill-
motivated, as it sprang from an earlier incident between her and Co's secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum 16 notifying Catolico of her
termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990 respectively
regarding our imposition of preventive suspension on you for acts of dishonesty. However, said letters failed to rebut the
evidences [sic] in our possession which clearly shows that as a Pharmacist stationed at Espana Branch, you actually
made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous price of
P320.00/bottle only. A check which you received in the amount of P640.00 actually represents the refund of over price of
said medicines and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company. Accordingly, you are hereby
terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal dismissal,
and illegal suspension. 17

In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice against
petitioners. Nevertheless, he decided in favor of Catolico because petitioners failed to "prove what [they] alleged as
complainant's dishonesty," and to show that any investigation was conducted. Hence, the dismissal was without just
cause and due process. He thus declared the dismissal and suspension illegal but disallowed reinstatement, as it would
not be to the best interest of the parties. Accordingly, he awarded separation pay to Catolico computed at one-half
month's pay for every year of service; back wages for one year; and the additional sum of P2,000.00 for illegal suspension
"representing 30 days work." Arbiter Lopez computed the award in favor of Catolico as follows:

30 days Preventive Suspension P2,000.00

Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
—————
TOTAL AWARD: P35,401.86
—————

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor Arbiter erred in
finding that Catolico was denied due process and that there was no just cause to terminate her services.

In its decision 19 of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that petitioners
were not able to prove a just cause for Catolico's dismissal from her employment. It found that petitioner's evidence
consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw when the latter
opened the envelope. But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2)
of Article III of the Constitution. 20 It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional right invoked
by complainants, respondents' case falls apart as it is bereft of evidence which cannot be used as a legal basis for
complainant's dismissal.
The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision by
deleting the award for illegal suspension as the same was already included in the computation of the aggregate of the
awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action for certiorari, which is
anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its finding of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving "commissions" from YSP, or
probably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the last. They
also maintained that Catolico occupied a confidential position and that Catolico's receipt of YSP's check, aggravated by
her "propensity to violate company rules," constituted breach of confidence. And contrary to the findings of NLRC,
Catolico was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti, 21 the constitutional
protection against unreasonable searches and seizures refers to the immunity of one's person from interference by
government and cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the NLRC's decision, as
it was of the persuasion that (a) the conclusions reached by public respondent are inconsistent with its findings of fact;
and (b) the incident involving the opening of envelope addressed to private respondent does not warrant the application of
the constitutional provisions. It observed that Catolico was given "several opportunities" to explain her side of the check
controversy, and concluded that the opportunities granted her and her subsequent explanation "satisfy the requirements
of just cause and due process." The OSG was also convinced that Catolico's dismissal was based on just cause and that
Catolico's admission of the existence of the check, as well as her "lame excuse" that it was Christmas gift from YSP,
constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners' argument that there was no violation
of the right of privacy of communication in this case, 22 adding that petitioner WATEROUS was justified in opening an
envelope from one of its regular suppliers as it could assume that the letter was a business communication in which it had
an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC contends that petitioners
miserably failed to proved their claim that it committed grave abuse of discretion in its findings of fact. It then prays that we
dismiss this petition. cda

In her Comment, Catolico assets that petitioners' evidence is too "flimsy" to justify her dismissal. The check in issue was
given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an employee from
accepting gifts from clients, and there is no indication in the contentious check that it was meant as a refund for overpriced
medicines. Besides, the check was discovered in violation of the constitutional provision on the right to privacy and
communication; hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initial response that she never received a check
were sufficient to justify her dismissal. When she denied having received a check from YSP, she meant that she did not
receive any refund of overprice, consistent with her position that what she received was a token gift. All that can be
gathered from the audit report is that there was apparently an overcharge, with no basis to conclude that Catolico
pocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on a mere suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS because, being merely
a pharmacist, she did not handle "confidential information or sensitive properties." She was doing the task of a saleslady:
selling drugs and making requisitions when supplies were low.
A thorough review of the record leads us to no other conclusion than that, except as to the third ground, the instant
petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an employee be apprised of the
charge against him, given reasonable time to answer the charge, allowed amply opportunity to be heard and defend
himself, and assisted by a representative if the employee so desires. 23 Ample opportunity connotes every kind of
assistance that management must accord the employee to enable him to prepare adequately for his defense, including
legal representation. 24

In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the service in
the memorandum of 5 March 1990 issued by her Supervisor after receipt of her letter and that of her counsel. No hearing
was ever conducted after the issues were joined through said letters. The Supervisor's memorandum spoke of "evidences
[sic] in [WATEROUS] possession," which were not, however, submitted. What the "evidences" [sic] other than the sales
invoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and valid cause for
dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal is
unjustified. 25 Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissed because of an alleged anomalous
transaction with YSP. Unfortunately for petitioners, their evidence does not establish that there was an overcharge.
Control Clerk Eugenio C. Valdez, who claims to have discovered Catolico's inappropriate transaction, stated in his
affidavit: 26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the [company] procedure,
made an under the table deal with YSP Phils. to supply WDRC needed medicines like Voren tablets at a jack-up price of
P384.00 per bottle of 50 mg. which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per bottle was indeed
overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes confirmed that there was really an
overprice and she said that the difference was refunded through their check voucher no. 629552 which was shown to me
and the payee is Melodia Catolico, through a China Bank Check No. 892068 dated November 9, 1989.

It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita Reyes never testified nor
executed an affidavit relative to this case; thus, we have to reject the statements attributed to her by Valdez. Hearsay
evidence carries no probative value. 27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co, through the former's
memorandum 28 of 29 January 1990, that WATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832," the said
check was never presented in evidence, nor was any receipt from YSP offered by petitioners. cdrep

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an overcharge. The
purchase order dated 16 August 1989 29 stated that the Voren tablets cost P320.00 per box, while the purchase order
dated 5 October 1989 30 priced the Voren tablets at P384.00 per bottle. The difference in price may then be attributed to
the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets were recommended by Director-
MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice President-General Manager Emma
R. Co. The purchase orders were silent as to Catolico's participation in the purchase. If the price increase was
objectionable to petitioners, they or their officers should have disapproved the transaction. Consequently, petitioners had
no one to blame for their predicament but themselves. This set of facts emphasizes the exceedingly incredible situation
proposed by petitioners. Despite the memorandum warning Catolico not to negotiate with suppliers of medicine, there was
no proof that she ever transacted, or that she had the opportunity to transact, with the said suppliers. Again, as the
purchase orders indicate, Catolico was not at all involved in the sale of the Voren tablets. There was no occasion for
Catolico to initiate, much less benefit from, what Valdez called an "under the table deal" with YSP.
Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify an employee's
dismissal. Suspicion is not among the valid causes provided by the Labor Code for the termination of employment; 31 and
even the dismissal of an employee for loss of trust and confidence must rest on substantial grounds and not on the
employer's arbitrariness, whims, caprices, or suspicion. 32 Besides, Catolico was not shown to be a managerial
employee, to which class of employees the term "trust and confidence" is restricted. 33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise the
doctrine laid down in People vs. Marti 34 that the Bill of Rights does not protect citizens from unreasonable searches and
seizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the citizens have no recourse
against such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil
liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not be to the best interest of
the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is computed at one
month's salary for every year of service. 35 In this case, however, Labor Arbiter Lopez computed the separation pay at
one-half month's salary for every year of service. Catolico did not oppose or raise an objection. As such, we will uphold
the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the National
Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No.
005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter's decision, viz., that the evidence
against private respondent was inadmissible for having been obtained in violation of her constitutional rights of privacy of
communication and against unreasonable searches and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.
 EN BANC

[G.R. No. 140740. April 12, 2002.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO BALOLOY, accused-appellant.

DECISION

PER CURIAM p:

At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening of 3 August 1996, the dead body of
an 11-year-old girl Genelyn Camacho (hereafter GENELYN) was found. The one who caused its discovery was accused-
appellant Juanito Baloloy (hereafter JUANITO) himself, who claimed that he had caught sight of it while he was catching
frogs in a nearby creek. However, based on his alleged extrajudicial confession, coupled with circumstantial evidence, the
girl's unfortunate fate was pinned on him. Hence, in this automatic review, he seeks that his alleged confession be
disregarded for having been obtained in violation of his constitutional rights, and that his conviction on mere circumstantial
evidence be set aside.

The information 1 charging JUANITO with the crime of rape with homicide reads as follows:

That on August 3, 1996 at about 6:30 o'clock in the evening, at Barangay Inasagan, Municipality of Aurora, province of
Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have carnal
knowledge with one Genelyn Camacho, a minor against the latter's will and on said occasion and by reason of the rape,
the said Genelyn Camacho died as a result of personal violence, inflicted upon her by the accused.

Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659.

The case was docketed as Criminal Case No. AZ-CC-96-156.

Upon arraignment 2 on 10 December 1996, JUANITO entered a plea of not guilty. Trial on the merits ensued thereafter.

Jose Camacho, father of GENELYN and resident of Inasagan, Purok Mabia, Aurora, Zamboanga del Sur, testified that at
about 5:00 p.m. of 3 August 1996, he asked GENELYN to borrow some rice from their neighbor Wilfredo Balogbog whose
house was about 200 meters away. GENELYN forthwith left, but never returned. Thus, Jose went to the house of
Wilfredo, who informed him that GENELYN had already left with one ganta of rice. Jose then started to look for
GENELYN. Speculating that GENELYN might have taken shelter at the house of their neighbor Olipio Juregue while it
was raining, Jose proceeded to Olipio's house. Unfortunately, Jose did not find GENELYN there. Not losing hope, Jose
proceeded to the house of Ernesto Derio. On his way, he met Wilfredo, who accompanied him to the house of Ernesto.
GENELYN was not there either. They continued their search for GENELYN, but when it proved to be in vain, the two
decided to go home. 3

A few minutes after Jose reached his house, Ernesto and JUANITO arrived. JUANITO informed Jose that he saw a dead
body at the waterfalls, whose "foot was showing." When asked whose body it was, JUANITO answered that it was
GENELYN's. Immediately, the three went to the waterfalls where JUANITO pointed the spot where he saw GENELYN's
body. With the aid of his flashlight, Jose went to the spot, and there he saw the dead body floating face down in the knee-
high water. True enough, it was GENELYN's. Jose reported the incident to Barangay Captain Luzviminda Ceniza. Upon
Ceniza's order, the Bantay Bayan members and some policemen retrieved and brought GENELYN's dead body to Jose's
house. 4

Wilfredo Balogbog corroborated the testimony of Jose that GENELYN came to his house in the afternoon of 3 August
1996 to borrow some rice. GENELYN had with her an umbrella that afternoon, as it was raining. He learned that
GENELYN failed to reach her home when Jose came to look for her. 5

Ernesto Derio, JUANITO's uncle-in-law, testified that at about 6:30 p.m. of 3 August 1996, Jose, together with Wilfredo
Balogbog, arrived at his house to look for GENELYN, but they immediately left when they did not find her. At about 7:30
p.m., JUANITO arrived at Ernesto's house, trembling and apparently weak. JUANITO was then bringing a sack and a
kerosene lamp. When Ernesto asked JUANITO where he was going, the latter said that he would catch frogs; and then he
left. After thirty minutes, JUANITO returned and told Ernesto that he saw a foot of a dead child at the waterfalls. With the
disappearance of GENELYN in mind, Ernesto lost no time to go the house of Jose. JUANITO followed him. There,
JUANITO told Jose that he saw a foot of a dead child at the waterfalls. When Jose asked whether it was GENELYN's,
JUANITO answered in the affirmative. The three then proceeded to the waterfalls, where JUANITO pointed the place
where he saw the body of GENELYN. Jose immediately approached the body, and having confirmed that it was
GENELYN's, he brought it to a dry area. 6

Ernesto also testified that on 4 August 1996, he saw Antonio Camacho hand over a black rope to Barangay Captain
Ceniza. The latter asked those present as to who owned the rope. When JUANITO admitted ownership of the rope,
Ceniza brought him away from the crowd to a secluded place and talked to him. 7

Finally, Ernesto testified that JUANITO previously attempted to molest his (Ernesto's) child, an incident that caused a fight
between him (JUANITO) and his (Ernesto's) wife. 8

Antonio Camacho, a cousin of Jose, testified that on 3 August 1996, he was informed by Jose's brother that GENELYN
was "drowned." He and the Bantay Bayan members proceeded to the place of the incident and retrieved the body of
GENELYN. At 8:00 a.m. of the following day he, together with Edgar Sumalpong and Andres Dolero, went to the
waterfalls to trace the path up to where GENELYN was found. There, they found a black rope and an umbrella. They gave
the umbrella to Jose's wife, and the black rope to Barangay Captain Ceniza, who was then attending the wake of
GENELYN. Ceniza asked those who were at the wake whether anyone of them owned the rope. JUANITO answered that
he owned it. Thereafter Ceniza talked to JUANITO. 9

Andres Dolero corroborated the testimony of Antonio on the recovery of the black rope and umbrella at the waterfalls
where GENELYN's body was found. 10

Barangay Captain Ceniza of Inasagan, Aurora, Zamboanga del Sur, testified that at about 8:30 p.m. of 3 August 1996,
Jose Camacho, Ernesto Derio, Porferio Camacho, and JUANITO arrived at her house to inform her that JUANITO found
GENELYN's dead body at the waterfalls. Ceniza forthwith ordered the members of the  Bantay Bayan to retrieve the body
of GENELYN, and reported the incident to the police headquarters of Aurora, Zamboanga del Sur. She specifically named
JUANITO as her suspect. She then went home and proceeded to Jose's house for GENELYN's wake. She saw JUANITO
at the wake and noticed that he was very uneasy. 11

Ceniza further revealed that on 4 August 1996, while she was on her way to Jose's house, Antonio gave her a black rope,
which he reportedly found at the spot where the dead body of GENELYN was retrieved. Ceniza then asked the people at
the wake about the rope. JUANITO, who was among those present, claimed the rope as his. She brought JUANITO away
from the others and asked him why his rope was found at the place where GENELYN's body was discovered. JUANITO
answered: "I have to claim this as my rope because I can commit sin to God if I will not claim this as mine because this is
mine." Ceniza further asked JUANITO to tell her everything. JUANITO told Ceniza that his intention was only to frighten
GENELYN, not to molest and kill her. When GENELYN ran away, he chased her. As to how he raped her, JUANITO told
Ceniza that he first inserted his fingers into GENELYN's vagina and then raped her. Thereafter, he threw her body into the
ravine. 12

After such confession, Ceniza examined his body and found a wound on his right shoulder, as well as abrasions and
scratches on other parts of his body. Upon further inquiry, JUANITO told her that the wound on his shoulder was caused
by the bite of GENELYN. Ceniza then turned over JUANITO to a policeman for his own protection, as the crowd became
unruly when she announced to them that JUANITO was the culprit. JUANITO was forthwith brought to the police
headquarters. 13

Victor Mosqueda, a member of the Philippine National Police (PNP) stationed at the Aurora Police Station, testified that at
about 10:00 p.m. of 4 August 1996 he was at Jose's house. Ceniza informed him that JUANITO was the suspect in the
killing of GENELYN, and she turned over to him a black rope which belonged to JUANITO. He wanted to interrogate
JUANITO, but Ceniza cautioned him not to proceed with his inquiry because the people around were getting unruly and
might hurt JUANITO. Mosqueda immediately brought JUANITO to the police station, and on that same day, he took the
affidavits of the witnesses. The following day, a complaint was filed against JUANITO. 14
Dr. Arturo Lumacad, Municipal Health Officer of the Aurora Rural Health Clinic, testified that he examined JUANITO so as
to verify the information that JUANITO sustained wounds in his body. 15 His examination of JUANITO revealed the
following injuries: EDISaA

1. fresh abrasions on the right portion of the cheek;

2. multiple abrasions on the right shoulder;

3. abrasion on the left shoulder; and

4. abrasions on the left forearm. 16

Dr. Lumacad also testified that he examined the dead body of GENELYN on 4 August 1996 and found the following
injuries:

1. 2.5-inch lacerated wound at her left neck, front of the head;

2. 1-inch wound at the right cheek just below the first wound;

3. multiple contusions on her chest;

4. contusion at the right hip; and

5. fresh lacerations on her vagina at 9 o'clock and 3 o'clock positions. 17

He opined that the fresh lacerations could have been caused by a large object inserted into GENELYN's vagina, such as
a male sex organ, a rod, or a piece of wood or metal. 18

Presiding Judge Celestino V. Dicon of the Municipal Trial Court of Aurora, Zamboanga del Sur, testified that when he
arrived in his office at around 8:30 a.m. of 4 August 1996 several people, including Barangay Captain Ceniza, were
already in his courtroom. He learned that they came to swear to their affidavits before him. After reading the affidavit of
Ceniza, he asked Ceniza whether her statements were true. Ceniza answered in the affirmative and pointed to JUANITO
as the culprit. Judge Dicon turned to JUANITO and asked him whether the charge against him was true. JUANITO replied
in the dialect: "[N]apanuwayan ko, sir" ("I was demonized"). While Judge Dicon realized that he should not have asked
JUANITO as to the truthfulness of the allegations against him, he felt justified in doing so because the latter was not under
custodial investigation. Judge Dicon thus proceeded to ask JUANITO whether he had a daughter as old as the victim and
whether he was aware of what he had done to GENELYN. Again, JUANITO responded that he was demonized, and he
spontaneously narrated that after he struck GENELYN's head with a stone he dropped her body into the precipice. 19

Lopecino Albano, process server in the court of Judge Dicon, corroborated the testimony of the latter as to JUANITO's
admission that he was demonized when he raped and killed GENELYN. 20

The sole witness for the defense was JUANITO, who invoked denial and alibi. He testified that he was at his mother's
house at around 6:30 p.m. of 3 August 1996. An hour later, he left for the creek to catch frogs; and while catching frogs,
he saw a foot. He forthwith headed for Ernesto Derio's house to ask for help. There, he told Ernesto and his wife of what
he had seen. Ernesto's wife asked JUANITO whether the person was still alive, and JUANITO answered that he was not
sure. At this point, Ernesto informed him that Jose Camacho was looking for GENELYN. JUANITO and Ernesto then
proceeded to the house of Jose to inform the latter of what he, JUANITO, had seen. The three forthwith went to the creek.
There, they found out that the foot was GENELYN's and that she was already dead. Upon Jose's request, JUANITO and
Ernesto informed Jose's brother about the incident, and they proceeded to the house of Ceniza. Thereafter, they, along
with the members of the Bantay Bayan, went back to the creek to retrieve the body of GENELYN. 21

JUANITO further recalled that after the body of GENELYN was brought to her parent's house, he helped saw the lumber
for her coffin. Thereafter, he went to Ernesto's house to get the sack containing the seventeen frogs he had caught that
night, which he earlier left at Ernesto's house. He was shocked to find out that the rope which he used to tie the sack, as
well as all the frogs he caught, was missing. As it was already dawn, JUANITO left his sack at his mother's house; then he
proceeded to the house of Jose to help make the coffin of GENELYN. But, at around 8:00 a.m., policeman Banaag came
looking for him. He stopped working on GENELYN's coffin and identified himself. Banaag took him away from the house
of Jose and asked him whether he owned the rope. JUANITO answered in the affirmative. At this point, policeman
Mosqueda came near them and escorted him and Banaag back to Jose's house. At Jose's house, Mosqueda announced
to the crowd that JUANITO was the suspect in GENELYN's untimely demise. JUANITO was then detained and
investigated at the police station. 22 During his investigation by the police officers and by Judge Dicon, he was never
assisted by a lawyer. 23

In its challenged decision, 24 the trial court found JUANITO guilty beyond reasonable doubt of the crime of rape with
homicide. On the challenge on the admissibility of the admissions he made to Barangay Captain Ceniza and Judge Dicon,
it ruled that they are not the law enforcement authorities referred to in the constitutional provisions on the conduct of
custodial investigation. Hence, JUANITO's confessions made to them are admissible in evidence. Moreover, no ill-motive
could be attributed to both Ceniza and Judge Dicon. It also found unsubstantiated JUANITO's claim that he was
threatened by his fellow inmates to make the confession before Judge Dicon; and that, even assuming that he was indeed
threatened by them, the threat was not of the kind contemplated in the Bill of Rights. The threat, violence or intimidation
that invalidates confession must come from the police authorities and not from a civilian. Finally, it ruled that JUANITO's
self-serving negative evidence cannot stand against the prosecution's positive evidence. ECcaDT

The trial court, thus, convicted JUANITO of rape with homicide and imposed on him the penalty of death. It also ordered
him to pay the heirs of the victim the amount of P50,000 by way of civil indemnity. Hence, this automatic review.

In his Appellant's Brief, JUANITO imputes to the trial court the following errors:

THE COURT A QUO GRAVELY ERRED IN ADMITTING THE ALLEGED CONFESSION OF THE ACCUSED-
APPELLANT TO WITNESSES LUZVIMINDA CE[N]IZA AND JUDGE CELESTINO DICON AS EVIDENCE AGAINST THE
ACCUSED.

II

ON ACCOUNT OF THE INADMISSIBILITY OF THE ACCUSED'S ALLEGED CONFESSION THE COURT GRAVELY
ERRED IN CONVICTING THE ACCUSED BASED ON MERE CIRCUMSTANTIAL EVIDENCE.

Anent the first assigned error, JUANITO maintains that the trial court violated Section 12(1) of Article III of
the Constitution 25 when it admitted in evidence his alleged extrajudicial confession to Barangay Captain Ceniza and
Judge Dicon. According to him, the two failed to inform him of his constitutional rights before they took it upon themselves
to elicit from him the incriminatory information. It is of no moment that Ceniza and Dicon are not police investigators, for as
public officials it was incumbent upon them to observe the express mandate of the Constitution. While these rights may be
waived, the prosecution failed to show that he effectively waived his rights through a written waiver executed in the
presence of counsel. He concludes that his extrajudicial confession is inadmissible in evidence.

In his second assigned error, JUANITO asserts that the prosecution miserably failed to establish with moral certainty his
guilt. He points to the contradicting testimonies of the witnesses for the prosecution concerning the retrieved rope owned
by him. Consequently, with the inadmissibility of his alleged extrajudicial confession and the apparent contradiction
surrounding the prosecution's evidence against him, the trial court should have acquitted him.

In the Appellee's Brief, the Office of the Solicitor General (OSG) supports the trial court's finding that JUANITO is guilty
beyond reasonable doubt of the crime as charged. His bare denial and alibi cannot overcome the positive assertions of
the witnesses for the prosecution. Moreover, he was unable to establish by sufficient evidence that Barangay Captain
Ceniza and Judge Dicon had an ulterior motive to implicate him in the commission of the crime.

The OSG recommends that the civil indemnity of P50,000 awarded by the trial court be increased to P75,000; and that in
line with current jurisprudence, moral damages in the amount of P50,000 be awarded to the heirs of GENELYN.

We shall first address the issue of admissibility of JUANITO's extrajudicial confession to Barangay Captain
Ceniza. DcSEHT
It has been held that the constitutional provision on custodial investigation does not apply to a spontaneous statement, not
elicited through questioning by the authorities but given in an ordinary manner whereby the suspect orally admits having
committed the crime. Neither can it apply to admissions or confessions made by a suspect in the commission of a crime
before he is placed under investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or
confessions. The rights under Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by
the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the
truth. 26

In the instant case, after he admitted ownership of the black rope and was asked by Ceniza to tell her everything,
JUANITO voluntarily narrated to Ceniza that he raped GENELYN and thereafter threw her body into the ravine. This
narration was a spontaneous answer, freely and voluntarily given in an ordinary manner. It was given before he was
arrested or placed under custody for investigation in connection with the commission of the offense.

It may be stressed further that Ceniza's testimony on the facts disclosed to her by JUANITO was confirmed by the findings
of Dr. Lumacad. GENELYN's physical resistance and biting of the right shoulder of JUANITO were proved by the wound
on JUANITO's right shoulder and scratches on different parts of his body. His admission that he raped GENELYN was
likewise corroborated by the fresh lacerations found in GENELYN's vagina.

Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part of Ceniza, which could have
compelled her to testify falsely against him. Where there is no evidence to show a doubtful reason or improper motive why
a prosecution witness should testify against the accused or falsely implicate him in a crime, the said testimony is
trustworthy. 27

However, there is merit in JUANITO's claim that his constitutional rights during custodial investigation were violated by
Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It
is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial
investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without
the assistance of counsel. 28 Judge Dicon's claim that no complaint has yet been filed and that neither was he conducting
a preliminary investigation deserves scant consideration. The fact remains that at that time JUANITO was already under
the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge
Dicon for the administration of their oaths on their statements.

While Mosqueda claims that JUANITO was not arrested but was rather brought to the police headquarters on 4 August
1996 for his protection, the records reveal that JUANITO was in fact arrested. If indeed JUANITO's safety was the
primordial concern of the police authorities, the need to detain and deprive him of his freedom of action would not have
been necessary. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission
of an offense, and it is made by an actual restraint of the person to be arrested, or by his submission to the person making
the arrest. 29

At any rate, while it is true that JUANITO's extrajudicial confession before Judge Dicon was made without the advice and
assistance of counsel and hence inadmissible in evidence, it could however be treated as a verbal admission of the
accused, which could be established through the testimonies of the persons who heard it or who conducted the
investigation of the accused. 30

JUANITO's defense of alibi is futile because of his own admission that he was at the scene of the crime. Alibi is a defense
that places an accused at the relevant time of a crime in a place other than the scene involved and so removed therefrom
as to render it impossible for him to be the guilty party. 31 Likewise, a denial that is unsubstantiated by clear and
convincing evidence is a negative and self-serving evidence, which cannot be accorded greater evidentiary weight than
the declaration of credible witnesses who testify on affirmative matters. 32

Anent the alleged inconsistencies in the details surrounding the recovery of the black rope, the same are irrelevant and
trite and do not impair the credibility of the witnesses. Minor inconsistencies and honest lapses strengthen rather than
weaken the credibility of witnesses, as they erase doubts that such testimonies have been coached or
rehearsed. 33 What matters is that the testimonies of witnesses agree on the essential fact that JUANITO was the owner
of the black rope and the perpetrator of the crime.
Even if JUANITO's confession or admission is disregarded, there is more than enough evidence to support his conviction.
The following circumstances constitute an unbroken chain proving beyond reasonable doubt that it was JUANITO who
raped and killed GENELYN: ECaTDc

1. At about 5:00 p.m. of 3 August 1996, Jose Camacho bid his daughter GENELYN to borrow some rice from their
neighbor Wilfredo Balogbog. GENELYN did so as told, but failed to return home.

2. About 7:30 p.m. of the same day, JUANITO arrived at Ernesto's house bringing a sack and kerosene lamp, trembling
and apparently weak.

3. Thirty minutes thereafter, JUANITO returned to Ernesto's house and told Ernesto that he saw a foot of a dead child at
the waterfalls, without disclosing the identity of the deceased.

4. When JUANITO and Ernesto were at Jose's house, the former told Jose that it was GENELYN's foot he saw at the
waterfalls.

5. GENELYN was found dead at the waterfalls with fresh lacerations on her vaginal wall at 9 and 3 o'clock positions.

6. At about 8:00 a.m. of 4 August 1996, Antonio Camacho, Andres Dolero and Edgar Sumalpong recovered at the crime
site a black rope, which they turned over to Ceniza, who was then at GENELYN's wake.

7. When Ceniza asked the people around as to who owned the black rope, JUANITO claimed it as his.

8. When Ceniza examined JUANITO's body, she saw a wound on his right shoulder and scratches on different parts of his
body.

9. Dr. Lumancad's physical examination of JUANITO revealed abrasions, which could have been caused by scratches.

Guilt may be established through circumstantial evidence provided that the following requisites concur: (1) there is more
than one circumstance; (2) the inferences are based on proven facts; and (3) the combination of all circumstances
produces a conviction beyond reasonable doubt of the guilt of the accused. 34 All these requisites are present in the case
at bar.

With JUANITO's guilt for rape with homicide proven beyond reasonable doubt, we are constrained to affirm the death
penalty * imposed by the trial court. Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659,
pertinently provides: "When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death."

As to JUANITO's civil liability, prevailing judicial policy has authorized the mandatory award of P100,000 35 as civil
indemnity ex delicto in cases of rape with homicide (broken down as follows: P50,000 for the death and P50,000 upon the
finding of the fact of rape). Thus, if homicide is committed by reason or on occasion of rape, the indemnity in the amount
of P100,000 is fully justified and properly commensurate with the seriousness of the said special complex crime. Moral
damages in the amount of P50,000 may be additionally awarded to the heirs of the victim without the need for pleading or
proof of the basis thereof; the fact that they suffered the trauma of mental, physical and psychological sufferings, which
constitutes the basis for moral damages under the Civil Code, is too obvious to still require the recital thereof at the
trial. 36

WHEREFORE, the decision of the Regional Trial Court, Branch 30, Aurora, Zamboanga Del Sur, in Criminal Case No.
AZ-CC-96-156, finding accused-appellant Juanito Baloloy guilty of the crime of rape with homicide and sentencing him to
suffer the penalty of death is AFFIRMED with the modification that he is ordered to pay the heirs of Genelyn Camacho
P100,000 as indemnity and P50,000 as moral damages.

In consonance with Section 25 of R.A. No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this
Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the
pardoning power. IcDESA

Costs de officio.

SO ORDERED.
 EN BANC

[G.R. No. 116437. March 3, 1997.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO ANDAN y HERNANDEZ @ BOBBY, accused-

appellant.

DECISION

PER CURIAM p :

Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of the crime of rape with homicide committed
as follows:

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

Contrary to Law." 1

The prosecution established that on February 19, 1994 at about 4:00 P.M., in Concepcion Subdivision, Baliuag, Bulacan,
Marianne Guevarra, twenty years of age and a second-year student at the Fatima School of Nursing, left her home for her
school dormitory in Valenzuela, Metro Manila. She was to prepare for her final examinations on February 21, 1994.
Marianne wore a striped blouse and faded denim pants and brought with her two bags containing her school uniforms,
some personal effects and more than P2,000.00 in cash.

Marianne was walking along the subdivision when appellant invited her inside his house. He used the pretext that the
blood pressure of his wife's grandmother should be taken. Marianne agreed to take her blood pressure as the old woman
was her distant relative. She did not know that nobody was inside the house. Appellant then punched her in the abdomen,
brought her to the kitchen and raped her. His lust sated, appellant dragged the unconscious girl to an old toilet at the back
of the house and left her there until dark. Night came and appellant pulled Marianne, who was still unconscious, to their
backyard. The yard had a pigpen bordered on one side by a six-foot high concrete fence. On the other side was a vacant
lot. Appellant stood on a bench beside the pigpen and then lifted and draped the girl's body over the fence to transfer it to
the vacant lot. When the girl moved, he hit her head with a piece of concrete block. He heard her moan and hit her again
on the face. After silence reigned, he pulled her body to the other side of the fence, dragged it towards a shallow portion
of the lot and abandoned it. 2

At 11:00 A.M. of the following day, February 20, 1994, the body of Marianne was discovered. She was naked from the
chest down with her brassiere and T-shirt pulled toward her neck. Nearby was found a panty with a sanitary napkin.

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

"1. Abrasions:

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

2.  Abrasions/contusions:

2.1  emple, right.

2.2  cheek, right.

2.3  upper and lower jaws, right.

2.4  breast, upper inner quadrant, right.

2.5 breast, upper outer quadrant, left.

2.6  abdomen, just above the umbilicus, rectangular, approximate 3 inches in width, from right MCL to left AAL.

2.7.  elbow joint, posterior, bilateral.

3.  Hematoma:

3.1  upper and lower eyelids, bilateral.

3.2  temple, lateral to the outer edge of eyebrow, right.

3.3  upper and lower jaws, right.

4.  Lacerated wounds:

4.1  eyebrow, lateral border, right, 1/2 inch.

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

5.  Fractures:

5.1  maxillary bone, right.

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

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

7.  External genitalia

7.1  minimal blood present.

7.2  no signs of recent physical injuries noted on both labia, introitus and exposed vaginal wall.

8.  Laboratory examination of smear samples from the vaginal cavity showed negative for spermatozoa (Bulacan
Provincial Hospital, February 22, 1994, by Dr. Wilfredo S. de Vera).

CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions due to Traumatic Injuries, Face." 3

Marianne's gruesome death drew public attention and prompted Mayor Cornelio Trinidad of Baliuag to form a crack team
of police officers to look for the criminal. Searching the place where Marianne's body was found, the policemen recovered
a broken piece of concrete block stained with what appeared to be blood. They also found a pair of denim pants and a
pair of shoes which were identified as Marianne's. 4

Appellant's nearby house was also searched by the police who found bloodstains on the wall of the pigpen in the
backyard. They interviewed the occupants of the house and learned from Romano Calma, the stepbrother of appellant's
wife, that accused-appellant also lived there but that he, his wife and son left without a word. Calma surrendered to the
police several articles consisting of pornographic pictures, a pair of wet short pants with some reddish brown stain, a towel
also with the stain, and a wet T-shirt. The clothes were found in the laundry hamper inside the house and allegedly
belonged to appellant. 5

The police tried to locate appellant and learned that his parents live in Barangay Tangos, Baliuag, Bulacan. On February
24 at 11:00 P.M., a police team led by Mayor Trinidad traced appellant in his parents' house. They took him aboard the
patrol jeep and brought him to the police headquarters where he was interrogated. Initially, appellant denied any
knowledge of Marianne's death. However, when the police confronted him with the concrete block, the victim's clothes
and the bloodstains found in the pigpen, appellant relented and said that his neighbors, Gilbert Larin and Reynaldo Dizon,
killed Marianne and that he was merely a lookout. He also said that he knew where Larin and Dizon hid the two bags of
Marianne. 6 Immediately, the police took appellant to his house. Larin and Dizon, who were rounded up earlier, were
likewise brought there by the police. Appellant went to an old toilet at the back of the house, leaned over a flower pot and
retrieved from a canal under the pot, two bags which were later identified as belonging to Marianne. Thereafter,
photographs were taken of appellant and the two other suspects holding the bags. 7

Appellant and the two suspects were brought back to the police headquarters. The following day, February 25, a physical
examination was conducted on the suspects by the Municipal Health Officer, Dr. Orpha Patawaran. 8 Appellant was found
to sustain:

"HEENT: with multiple scratches on the neck Rt side. Chest and back: with abrasions (scratches at the back). Extremities:
freshly-healed wound along index finger 1.5 cm. in size Lt." 9

By this time, people and media representatives were already gathered at the police headquarters awaiting the results of
the investigation. Mayor Trinidad arrived and proceeded to the investigation room. Upon seeing the mayor, appellant
approached him and whispered a request that they talk privately. The mayor led appellant to the office of the Chief of
Police and there, appellant broke down and said "Mayor, patawarin mo ako! I will tell you the truth. I am the one who killed
Marianne." The mayor opened the door of the room to let the public and media representatives witness the confession.
The mayor first asked for a lawyer to assist appellant but since no lawyer was available he ordered the proceedings
photographed and videotaped. 10 In the presence of the mayor, the police, representatives of the media and appellant's
own wife and son, appellant confessed his guilt. He disclosed how he killed Marianne and volunteered to show them the
place where he hid her bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated saying he did it
because of ill-feelings against them. 11 He also said that the devil entered his mind because of the pornographic
magazines and tabloid he read almost everyday. 12 After his confession, appellant hugged his wife and son and asked
the mayor to help him. 13 His confession was captured on videotape and covered by the media nationwide. 14

Appellant was detained at the police headquarters. The next two days, February 26 and 27, more newspaper, radio and
television reporters came. Appellant was again interviewed and he affirmed his confession to the mayor and reenacted
the crime. 15

On arraignment, however, appellant entered a plea of "not guilty." He testified that in the afternoon of February 19, 1994
he was at his parent's house in Barangay Tangos attending the birthday party of his nephew. He, his wife and son went
home after 5:00 P.M. His wife cooked dinner while he watched their one-year old son. They all slept at 8:00 P.M. and
woke up the next day at 6:00 in the morning. His wife went to Manila to collect some debts while he and his son went to
his parents' house where he helped his father cement the floor of the house. His wife joined them in the afternoon and
they stayed there until February 24, 1994 when he was picked up by the police. 16

Appellant was brought by the police to a hotel at Bagong Nayon, Baliuag. In one of the rooms, the policemen covered his
face with a bedsheet and kicked him repeatedly. They coerced him to confess that he raped and killed Marianne. When
he refused, they pushed his head into a toilet bowl and injected something into his buttocks. Weakened, appellant
confessed to the crime. Thereafter, appellant was taken to his house where he saw two of his neighbors, Larin and Dizon.
He was ordered by the police to go to the old toilet at the back of the house and get two bags from under the flower pot.
Fearing for his life, appellant did as he was told. 17 cdt

In a decision dated August 4, 1994, the trial court convicted appellant and sentenced him to death pursuant to Republic
Act No. 7659. The trial court also ordered appellant to pay the victim's heirs P50,000.00 as death indemnity, P71,000.00
as actual burial expenses and P100,000.00 as moral damages, thus:

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

SO ORDERED." 18

This case is before us on automatic review in accordance with Section 22 of Republic Act No. 7659 amending Article 47
of the Revised Penal Code.
Appellant contends that:

"I  THE LOWER COURT ERRED IN ADMITTING AND USING AS BASIS OF JUDGMENT OF CONVICTION THE
TESTIMONIES OF THE POLICE INVESTIGATORS, REPORTERS AND THE MAYOR ON THE ALLEGED ADMISSION
OF THE ACCUSED DURING THE CUSTODIAL INVESTIGATION, THE ACCUSED NOT BEING ASSISTED BY
COUNSEL IN VIOLATION OF THE CONSTITUTION;

II  THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE WHEN THERE IS NO EVIDENCE OF ANY
KIND TO SUPPORT IT;

III  THE LOWER COURT ERRED IN MAKING A FINDING OF CONVICTION WHEN THE EVIDENCE IN ITS TOTALITY
SHOWS THAT THE PROSECUTION FAILED TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF THE
ACCUSED." 19

The trial court based its decision convicting appellant on the testimonies of the three policemen of the investigating team,
the mayor of Baliuag and four news reporters to whom appellant gave his extrajudicial oral confessions. It was also based
on photographs and video footages of appellant's confessions and reenactments of the commission of the crime.

Accused-appellant assails the admission of the testimonies of the policemen, the mayor and the news reporters because
they were made during custodial investigation without the assistance of counsel. Section 12, paragraphs (1) and (3) of
Article III of the Constitution provides:

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

(2)  . . .

(3)  Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him.

(4)  . . ."

Plainly, any person under investigation for the commission of an offense shall have the right (1) to remain silent; (2) to
have competent and independent counsel preferably of his own choice; and (3) to be informed of such rights. These rights
cannot be waived except in writing and in the presence of counsel. 20 Any confession or admission obtained in violation
of this provision is inadmissible in evidence against him. 21 The exclusionary rule is premised on the presumption that the
defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the
potentiality for compulsion, physical and psychological, is forcefully apparent. 22 The incommunicado character of
custodial interrogation or investigation also obscures a later judicial determination of what really transpired. 23

It should be stressed that the rights under Section 12 are accorded to "[a]ny person under investigation for the
commission of an offense." An investigation begins when it is no longer a general inquiry into an unsolved crime but starts
to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession
from the suspect in connection with an alleged offense. 24 As intended by the 1971 Constitutional Convention, this covers
"investigation conducted by police authorities which will include investigations conducted by the municipal police, the PC
and the NBI and such other police agencies in our government." 25

When the police arrested appellant, they were no longer engaged in a general inquiry about the death of Marianne.
Indeed, appellant was already a prime suspect even before the police found him at his parents' house. This is clear from
the testimony of SPO4 Danilo S. Bugay, the police chief investigator of the crime, viz:

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

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

A  Yes, sir.

Q  You went looking for Pablito Andan?

A  Yes, sir.

Q  And then, what else did you do?

A  We tried to find out where we can find him and from information we learned that his parents live in Barangay Tangos in
Baliuag. We went there, found him there and investigated him and in fact during the investigation he admitted that he was
the culprit." 26

Appellant was already under custodial investigation when he confessed to the police. It is admitted that the police failed to
inform appellant of his constitutional rights when he was investigated and interrogated. 27 His confession is therefore
inadmissible in evidence. So too were the two bags recovered from appellant's house. SPO2 Cesar Canoza, a member of
the investigating team testified:

"Atty. Valmores: You told the court that you were able to recover these bags marked as Exhs. B and B-1 because
accused pointed to them, where did he point these bags?

A  At the police station, sir, he told us that he hid the two (2) bags beneath the canal of the toilet.

Q  In other words, you were given information where these two (2) bags were located?

A  Yes, sir.

Q  And upon being informed where the two (2) bags could be located what did you do?

A  We proceeded to the place together with the accused so that we would know where the two (2) bags were hidden, sir.

Q  And did you see actually those two (2) bags before the accused pointed to the place where the bags were located?

A  After he removed the broken pots with which he covered the canal, he really showed where the bags were hidden
underneath the canal, sir." 28

The victim's bags were the fruits of appellant's uncounselled confession to the police. They are tainted evidence, hence
also inadmissible. 29

The police detained appellant after his initial confession. The following day, Mayor Trinidad visited the appellant. Appellant
approached the mayor and requested for a private talk. They went inside a room and appellant confessed that he alone
committed the crime. He pleaded for forgiveness. Mayor Trinidad testified, viz:

"Mayor Trinidad: . . . During the investigation when there were already many people from the media, Andan whispered
something to me and requested that he be able to talk to me alone, so what I did was that, I brought him inside the office
of the chief of police.

Private Prosecutor Principe: And so what happened inside the office of the Chief of Police, mayor?

A  While inside the office of the headquarters he told me "Mayor patawarin mo ako! I will tell you the truth. I am the one
who killed Marianne." So when he was telling this to me, I told him to wait a while, then I opened the door to allow the
media to hear what he was going to say and I asked him again whether he was the one who did it, he admitted it, sir. This
was even covered by a television camera." 30

xxx xxx xxx

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

Atty. Principe: He said to you the following words "Mayor, patawarin mo ako! Ako ang pumatay kay Marianne," was that
the only admission that he told you?

A  The admission was made twice. The first one was, when we were alone and the second one was before the media
people, sir.

Q  What else did he tell you when you were inside the room of the Chief of Police?

A  These were the only things that he told me, sir. I stopped him from making further admissions because I wanted the
media people to hear what he was going to say, sir." 31

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

Appellant's confessions to the media were likewise properly admitted. The confessions were made in response to
questions by news reporters, not by the police or any other investigating officer. We have held that statements
spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in
evidence. 37

The records show that Alex Marcelino, a television reporter for "Eye to Eye" on Channel 7, interviewed appellant on
February 27, 1994. The interview was recorded on video and showed that appellant made his confession willingly, openly
and publicly in the presence of his wife, child and other relatives. 38 Orlan Mauricio, a reporter for "Tell the People" on
Channel 9 also interviewed appellant on February 25, 1994. He testified that:

"Atty. Principe: You mentioned awhile ago that you were able to reach the place where the body of Marianne was found,
where did you start your interview, in what particular place?

Mr. Mauricio: Actually, I started my news gathering and interview inside the police station of Baliuag and I identified myself
to the accused as I have mentioned earlier, sir. At first, I asked him whether he was the one who raped and killed the
victim and I also learned from him that the victim was his cousin.

Q  And what was the response of Pablito Andan?

A  His response was he is a cousin of the victim and that he was responsible for raping and killing the victim, sir. And then I asked him
whether his admission was voluntary or that there was a threat, intimidation or violence that was committed on his person because I
knew that there were five other suspects in this case and he said that he was admitting it voluntarily to the policemen. I asked him
whether he was under the influence of drugs but he said no, and "nakainom lang," sir.

Q  You mentioned earlier that the uncle of the accused was present, was the uncle beside him at the time that you asked the question?

A  The uncle was there including the barangay captain whose name I cannot recall anymore. A barangay captain of the place, I don't
know if it is the place of the crime scene or in the place where Marianne Guevarra resides but . . .  All throughout the scene inside the
office of the Station Commander, there was no air of any force or any threatening nature of investigation that was being done on the
suspect, that is why, I was able to talk to him freely and in a voluntary manner he admitted to me that he was the one who raped and
killed, so we went to the next stage of accompanying me to the scene of the crime where the reenactment and everything that
transpired during the killing of Marianne Guevarra.

Q  Before you started that interview, did you inform or ask permission from the accused Pablito Andan that you were going to interview
him?

A  Yes, sir.

xxx xxx xxx

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

A  Yes, sir.

Q  Who accompanied you?

A  I was accompanied by some Baliuag policemen including Mayor Trinidad and some of the relatives of the accused.

Q  At this time, did you see the wife of the accused, Pablito Andan?

A  Yes, sir, I saw her at the place where the body of Guevarra was recovered.

Q  How many relatives of accused Pablito Andan were present, more or less?

A  There were many, sir, because there were many wailing, weeping and crying at that time when he was already taken in the patrol
jeep of the Baliuag police, sir.

Q  Now, Mr. Mauricio, upon reaching the scene of the crime in Concepcion, Baliuag, Bulacan, what transpired?

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

Q  Did he voluntarily comply?

A  Yes, sir, in fact, I have it on my videotape.

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

A  Yes, sir. 39

Journalist Berteni Causing of "People's Journal Tonite" likewise covered the proceedings for three successive days. 40 His testimony is
as follows:

"Atty. Principe: You mentioned that you had your own inquiries?

A  We asked first permission from the mayor to interrupt their own investigation so that we can have a direct interview with the suspect.

Q  Were there people?

A  The people present before the crowd that included the mayor, the deputy chief of police, several of the policemen, the group of Inday
Badiday and several other persons. I asked the suspect after the mayor presented the suspect to us and after the suspect admitted that
he was the one who killed Marianne. I reiterated the question to the suspect. Are you aware that this offense which is murder with . . .
rape with murder is a capital offense? And you could be sentenced to death of this? And he said, Yes. So do you really admit that you
were the one who did it and he repeated it, I mean, say the affirmative answer.

Q  And that was in the presence of the crowd that you mentioned a while ago?

A  Yes, yes, sir. And if I remember it right, as I took my camera to take some pictures of the suspect, the mayor, the policemen and
several others, I heard the group of Inday Badiday asking the same questions from the suspect and the suspect answered the same.

Q  Also in the presence of so many people that you mentioned?

A  The same group of people who were there, sir.

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

Court: Use the vernacular.

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

xxx xxx xxx

Q  Did you ask him, why did you kill Marianne?

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

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

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

Court: So he was not happy about the incident?

A  He even admitted it, your Honor.

Court: He was happy?

A  He admitted it. He was not happy after doing it.

Court: Was he crying?

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

Court: Was he feeling remorseful?

A  As I observed it, it was only slightly, your Honor.

xxx xxx xxx." 41

Another journalist, Rey Domingo, of "Bandera" interviewed appellant on February 26, 1994. 42 He also testified that:

"Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give you the permission that you asked from him?

A  Yes, sir.

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

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

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

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

Q  How about the other representatives from the media?

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

Q  How about Channel 7?

A  They came late. I was the one who got the scoop first, sir.
Q  You stated that the accused allowed you to interview him, was his wife also present?

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

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

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

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

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

Q  What was the next question?

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

Q  What was the next question that you asked him?

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

Q  Now, after the interview, are we correct to say that you made a news item on that?

A  Yes, sir, based on what he told me. That's what I did.

Q  Were there other questions propounded by you?

A  Yes, sir.

Q  "Ano iyon?"

A  He said that he threw the cadaver to the other side of the fence, sir.

Q  Did he mention how he threw the cadaver of Marianne to the other side of the fence?

A  I cannot remember the others, sir.

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

A  I have a xerox copy here, sir.

xxx xxx xxx." 43

Clearly, appellant's confessions to the news reporters were given free from any undue influence from the police
authorities. The news reporters acted as news reporters when they interviewed appellant. 44 They were not acting under
the direction and control of the police. They were there to check appellant's confession to the mayor. They did not force
appellant to grant them an interview and reenact the commission of the crime. 45 In fact, they asked his permission before
interviewing him. They interviewed him on separate days not once did appellant protest his innocence. Instead, he
repeatedly confessed his guilt to them. He even supplied all the details in the commission of the crime, and consented to
its reenactment. All his confessions to the news reporters were witnessed by his family and other relatives. There was no
coercive atmosphere in the interview of appellant by the news reporters.

We rule that appellant's verbal confessions to the newsmen are not covered by Section 12 (1) and (3) of Article III of
the Constitution. The Bill of Rights does not concern itself with the relation between a private individual and another
individual. 46 It governs the relationship between the individual and the State. The prohibitions therein are primarily
addressed to the State and its agents. They confirm that certain rights of the individual exist without need of any
governmental grant, rights that may not be taken away by government, rights that government has the duty to
protect. 47 Governmental power is not unlimited and the Bill of Rights lays down these limitations to protect the individual
against aggression and unwarranted interference by any department of government and its agencies. 48 cdt
In his second assigned error, appellant questions the sufficiency of the medical evidence against him. Dr. Alberto Bondoc,
a Medical Specialist with the Provincial Health Office, conducted the first autopsy and found no spermatozoa and no
recent physical injuries in the hymen. 49 Allegedly, the minimal blood found in her vagina could have been caused by her
menstruation. 50

We are unpersuaded. A second autopsy was conducted on March 1, 1994 by Dr. Dominic L. Aguda, a medico-legal
officer of the National Bureau of Investigation. His findings affirmed the absence of spermatozoa but revealed that the
victim's hymen had lacerations, thus:

"Hymen — contracted, tall, thin with fresh lacerations with clotted blood at 6 and 3 o'clock positions corresponding to the
walls of the clock." 51

Dr. Aguda testified that the lacerations were fresh and that they may have been caused by an object forcibly inserted into
the vagina when the victim was still alive, indicating the possibility of penetration. 52 His testimony is as follows:

"Witness: When I exposed the hymen, I found lacerations in this 3 o'clock and 6 o'clock position corresponding to the
walls of the clock. . . .

Court: Include the descriptive word, fresh.

Witness: I put it in writing that this is fresh because within the edges of the lacerations, I found blood clot, that is why I put
it into writing as fresh.

Atty. Valmonte: Now, Doctor, you told the Court that what you did on the cadaver was merely a re-autopsy, that means,
doctor the body was autopsied first before you did your re-autopsy?

A  Yes, sir.

Q  Could it not be, doctor, that these injuries you found in the vagina could have been sustained on account of the dilation
of the previous autopsy?

A  Well, we presumed that if the first doctor conducted the autopsy on the victim which was already dead, no amount of
injury or no amount of lacerated wounds could produce blood because there is no more circulation, the circulation had
already stopped. So, I presumed that when the doctor examined the victim with the use of forceps or retractor, vaginal
retractor, then I assumed that the victim was already dead. So it is impossible that the lacerated wounds on the hymen
were caused by those instruments because the victim was already dead and usually in a dead person we do not produce
any bleeding.

Q  What you would like to tell the Court is this: that the lacerations with clotted blood at 6 and 3 o'clock positions
corresponding to the walls of the clock could have been inflicted or could have been sustained while the victim was alive?

A  Yes, sir.

Q  This clotted blood, according to you, found at the edges of the lacerated wounds, now will you kindly go over the
sketch you have just drawn and indicate the edges of the lacerated wounds where you found the clotted blood?

A  This is the lacerated wound at 3 o'clock and this is the lacerated wound at 6 o'clock. I found the blood clot at this stage.
The clotted blood are found on the edges of the lacerated wounds, sir.

Q  What could have caused those lacerations?

A  Well, it could have been caused by an object that is forcibly inserted into that small opening of the hymen causing
lacerations on the edges of the hymen, sir.

Q  If the victim had sexual intercourse, could she sustain those lacerations?

A  It is possible, sir. 53

We have also ruled in the past that the absence of spermatozoa in the vagina does not negate the commission
rape 54 nor does the lack of complete penetration or rupture of the hymen. 55 What is essential is that there be
penetration of the female organ no matter how slight. 56 Dr. Aguda testified that the fact of penetration is proved by the
lacerations found in the victim's vagina. The lacerations were fresh and could not have been caused by any injury in the
first autopsy.

Dr. Aguda's finding and the allegation that the victim was raped by appellant are supported by other evidence, real and
testimonial, obtained from an investigation of the witnesses and the crime scene, viz:

(1)  The victim, Marianne, was last seen walking along the subdivision road near appellant's house; 57

(2)  At that time, appellant's wife and her step brother and grandmother were not in their house; 58

(3)  A bloodstained concrete block was found over the fence of appellant's house, a meter away from the wall. Bloodstains
were also found on the grass nearby and at the pigpen at the back of appellant's house; 59

(4)  The victim sustained bruises and scars indicating that her body had been dragged over a flat rough surface.  60 This
supports the thesis that she was thrown over the fence and dragged to where her body was found;

(5)  Appellant's bloodstained clothes and towel were found in the laundry hamper in his house;

(6)  The reddish brown stains in the towel and T-shirt of appellant were found positive for the presence of blood type "B,"
the probable blood type of the victim. 61 Marianne's exact blood type was not determined but her parents had type "A"
and type "AB." 62 The victim's pants had bloodstains which were found to be type "O," appellant's blood type; 63

(7)  Appellant had scratch marks and bruises in his body which he failed to explain; 64

(8)  For no reason, appellant and his wife left their residence after the incident and were later found at his parents' house
in Barangay Tangos, Baliuag, Bulacan; 65

In fine, appellant's extrajudicial confessions together with the other circumstantial evidence justify the conviction of
appellant.

Appellant's defense of alibi cannot overcome the prosecution evidence. His alibi cannot even stand the test of physical
improbability at the time of the commission of the crime. Barangay Tangos is only a few kilometers away from Concepcion
Subdivision and can be traversed in less than half an hour. 66

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15, Malolos, Bulacan in Criminal Case No. 1109-M-
94 is affirmed and accused-appellant Pablito Andan y Hernandez is found guilty of the special complex crime of rape with
homicide under Section 11 of Republic Act No. 7659 amending Article 335 of the Revised Penal Code and is sentenced to
the penalty of death, with two (2) members of the Court, however, voting to impose reclusion perpetua. Accused-appellant
is also ordered to indemnify the heirs of the victim, Marianne Guevarra, the sum of P50,000.00 as civil indemnity for her
death and P71,000.00 as actual damages.

In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of
this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the
pardoning power.

SO ORDERED.

EN BANC

[G.R. No. 147786. January 20, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. ERIC GUILLERMO y GARCIA, appellant.

DECISION

QUISUMBING, J p:

For automatic review is the judgment 1 of the Regional Trial Court (RTC) of Antipolo City, Branch 73, dated March 7,
2001, in Criminal Case No. 98-14724, finding appellant Eric Guillermo y Garcia guilty of murder and sentencing him to
suffer the penalty of death.

In an Information dated March 23, 1998, appellant was charged by State Prosecutor Jaime Augusto B. Valencia, Jr., of
murdering his employer, Victor Francisco Keyser, committed as follows:

That on or about the 22nd day of March 1998, in the Municipality of Antipolo, Province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a piece of wood and a saw, with intent to kill,
by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and hit with a piece of wood and thereafter, cut into pieces using said saw one Victor F. Keyser, thereby inflicting
upon the latter mortal injuries which directly caused his death.

CONTRARY TO LAW. 2

When arraigned on April 3, 1998, the appellant, assisted by counsel de oficio, pleaded guilty to the charge. 3

On April 23, 1998, however, appellant moved to withdraw his plea of guilty and prayed for a re-arraignment. The trial court
granted the motion and on April 28, 1998, he was re-arraigned. Assisted by counsel de parte, he entered a plea of not
guilty. 4 The case then proceeded to trial.

The facts, as gleaned from the records, are as follows.

The victim, Victor Francisco Keyser, was the owner and manager of Keyser Plastic Manufacturing Corp. (Keyser Plastics
for brevity), with principal place of business at Sitio Halang, Lornaville, San Roque, Antipolo City. 5 Keyser Plastics shared
its building with Greatmore Corporation, a manufacturer of faucets. 6 Separating the respective spaces being utilized by
the two firms in their operations was a wall, the lower portion of which was made of concrete hollow blocks, while the
upper portion was of lawanit boards. 7 The part of the wall made of lawanit had two large holes, which could allow a
person on one side of the wall to see what was on the other side. 8

On March 22, 1998, prosecution witness Romualdo Campos, a security guard assigned to Greatmore was on duty. At
around 8:00 a.m., he saw appellant Eric G. Guillermo enter the premises of Keyser Plastics. Campos ignored Guillermo,
as he knew him to be one of the trusted employees of Keyser Plastics. An hour later, he saw Victor F. Keyser arrive.
Keyser checked the pump motor of the deep well, which was located in the area of Greatmore, after which he also went
inside the part of the building occupied by Keyser Plastics. 9 Campos paid scant attention to Keyser.

Later, at around 10:00 a.m., Campos was making some entries in his logbook, when he heard some loud noises
("kalabugan") coming from the Keyser Plastics area. He stopped to listen, but thinking that the noise was coming from the
machines used to make plastics, he did not pay much attention to the sound. 10

At around noontime, Campos was suddenly interrupted in the performance of his duties when he saw appellant Guillermo
look through one of the holes in the dividing wall. According to Campos, appellant calmly told him that he had killed Victor
Keyser and needed Campos' assistance to help him carry the corpse to the garbage dump where he could burn
it. 11 Shocked by this revelation, Campos immediately dashed off to telephone the police. The police told him to
immediately secure the premises and not let the suspect escape, 12 while a reaction team was being dispatched to the
scene.

Ten minutes later, a team composed of SPO4 Felix Bautista, SPO1 Carlito Reyes, and Police Aide Jovenal Dizon, Jr., all
from the Antipolo Philippine National Police (PNP) Station, arrived at the crime scene. With them was Felix Marcelo, an
official police photographer. 13 They were immediately met by Campos, who informed them that Guillermo was still inside
the building. The law enforcers tried to enter the premises of Keyser Plastics, but found the gates securely locked. The
officers then talked to Guillermo and after some minutes, persuaded him to give them the keys. This enabled the police to
open the gate. Once inside, SPO4 Bautista and SPO1 Reyes immediately accosted Guillermo who told them, "Sir,  hindi
ako lalaban, susuko ako, haharapin ko ito." ("Sir, I shall not fight you, I am surrendering, and I shall face the
consequences.") 14 Guillermo was clad only in a pair of shorts, naked from the waist up. SPO1 Reyes then asked him
where the body of the victim was and Guillermo pointed to some cardboard boxes. On opening the boxes, the police
found the dismembered limbs and chopped torso of Victor F. Keyser. The victim's head was found stuffed inside a cement
bag. 15

When the police asked how he did it, according to the prosecution witness, Guillermo said that he bashed the victim on
the head with a piece of wood, and after Keyser fell, he dismembered the body with a carpenter's saw. He then mopped
up the blood on the floor with a plastic foam. Guillermo then turned over to the police a bloodstained, two-foot long piece
of coconut lumber and a carpenter's saw. 16 Photographs were taken of the suspect, the dismembered corpse, and the
implements used in committing the crime. When asked as to his motive for the killing, Guillermo replied that Keyser had
been maltreating him and his co-employees. 17 He expressed no regret whatsoever about his actions. 18

The police then brought Guillermo to the Antipolo PNP Station for further investigation. SPO1 Carlos conducted the
investigation, without apprising the appellant about his constitutional rights and without providing him with the services of
counsel. SPO1 Carlos requested the National Bureau of Investigation (NBI) to conduct a post-mortem examination on
Keyser's remains. The Antipolo police then turned over the bloodstained piece of wood and saw, recovered from the  locus
delicti, to the PNP Crime Laboratory for testing.

Dr. Ravell Ronald R. Baluyot, a medico-legal officer of the NBI, autopsied Keyser's remains. He found that the cadaver
had been cut into seven (7) pieces. 19 He found that the head had sustained thirteen (13) contusions, abrasions, and
other traumatic injuries, 20 all of which had been caused by "forcible contact with hard blunt object," 21 such as a "lead
pipe, baseball bat, or a piece of wood." 22 He found the cause of death to be "traumatic head injury." 23 Dr. Baluyot
declared that since the amputated body parts had irregular edges on the soft tissues, it was most likely that a sharp-
edged, toothed instrument, like a saw, had been used to mutilate the corpse. 24 He further declared that it was possible
that the victim was dead when sawn into pieces, due to cyanosis or the presence of stagnant blood in the body,  25 but on
cross-examination, he admitted that he could not discount the possibility that the victim might still have been alive when
mutilated. 26

Dr. Olga Bausa, medico-legal pathologist of the PNP Crime Laboratory, testified that she subjected the bloodstained piece
of coco lumber as well as the saw recovered from the crime scene to a biochemical examination to determine if the
bloodstains were of human origin. Both tested positive for the presence of human blood. 27 However, she could not
determine if the blood was of the same type as that of the victim owing to the insufficient amount of bloodstains on the
items tested. 28

Keyser's death shocked the nation. Appellant Guillermo, who was then in police custody, was interviewed on separate
occasions by two TV reporters, namely: Augusto "Gus" Abelgas of ABS-CBN News and Kara David of GMA Channel 7.
Both interviews were subsequently broadcast nationwide. Appellant admitted to David that he committed the crime and
never gave it second thought. 29 He disclosed to David the details of the crime, including how he struck Keyser on the
head and cut up his body into pieces, which he placed in sacks and cartons. 30 When asked why he killed his employer,
Guillermo stated that Keyser had not paid him for years, did not feed him properly, and treated him "like an
animal." 31 Both Abelgas and David said that Guillermo expressed absolutely no remorse over his alleged misdeed during
the course of their respective interviews with him. 32

At the trial, appellant Guillermo's defense consisted of outright denial. He alleged he was a victim of police "frame-up." He
testified that he had been an employee of Keyser for more than a year prior to the latter's death. On the date of the
incident, he was all alone at the Keyser Plastics factory compound as a "stay-in" employee. Other employees have left
allegedly due to Keyser's maltreatment of them. 33

In the morning of March 22, 1998, appellant said Keyser instructed him to report for overtime work in the afternoon. He
proceeded to the factory premises at one o'clock in the afternoon, but since his employer was not around, he said, he just
sat and waited till he fell asleep. 34 He was awakened sometime later when he heard people calling him from outside. He
then looked out and saw persons with firearms, who told him that they wanted to enter the factory. Once inside, they
immediately handcuffed him and looked around the premises. When they returned, they were carrying boxes and sacks.
He said he was then brought to the police station where he was advised to admit having killed his employer since there
was no other person to be blamed. 35 When he was made to face the media reporters, he said the police instructed him
what to say. 36 He claimed that he could no longer recall what he told the reporters. The appellant denied having any
grudge or ill feelings against his employer or his family.

On cross-examination, appellant admitted that he was the shirtless person in the photographs taken at the crime scene,
while the persons with him in the photographs were policemen wearing uniforms. 37 He likewise admitted that the cartons
and sacks found by the police inside the factory premises contained the mutilated remains of his employer. 38 He
claimed, however, that he was surprised by the contents of said cartons and sacks.  39 Appellant admitted that a
bloodstained piece of wood and a saw were also recovered by the police, but he insisted that the police made him hold
the saw when they took photographs. 40

The trial court disbelieved appellant's version of the incident, but found the prosecution's evidence against him weighty
and worthy of credence. It convicted the appellant, thus:

The guilt of the accused has been proven beyond reasonable doubt to the crime of murder as charged in [the] information.
WHEREFORE, the accused is meted the maximum penalty and is hereby sentenced to die by lethal injection.

The accused is also hereby ordered to pay the mother of the victim, Victor Keyser, the following amounts:

1. Death Indemnity P50,000.00

2. Funeral Expenses P50,000.00
3. Compensatory Damages P500,000.00
4. Moral Damages P500,000.00
5. Exemplary Damages P300,000.00
6. Attorney's Fees P100,000.00
plus P3,000.00 per Court appearance.
SO ORDERED. 41

Hence, the case is now before us for automatic review.

In his brief, appellant assigns the following errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE
CRIME OF MURDER HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II

THE COURT A QUO ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH.

III

THE COURT A QUO GRAVELY ERRED IN AWARDING THE FOLLOWING DAMAGES: DEATH INDEMNITY
P50,000.00; FUNERAL EXPENSES P50,000.00; COMPENSATORY DAMAGES P500,000.00; MORAL DAMAGES
P500,000.00; EXEMPLARY DAMAGES P300,000.00; AND ATTORNEY'S FEES OF P 100,000.00 PLUS P3,000 PER
COURT APPEARANCE. 42

Briefly stated, the issues for resolution concern: (1) the sufficiency of the prosecution's evidence to prove the appellant's
guilt beyond .reasonable doubt; (2) the propriety of the death penalty imposed on appellant; and (3) the correctness of the
award of damages.

Appellant contends that his conviction was based on inadmissible evidence. He points out that there is no clear showing
that he was informed of his constitutional rights nor was he made to understand the same by the police investigators. In
fact, he says, he was only made to read said rights in printed form posed on the wall at the police precinct. He was not
provided with the services of counsel during the custodial investigation, as admitted by SPO1 Reyes. In view of no
showing on record that he had waived his constitutional rights, appellant argues that any evidence gathered from him,
including his alleged confession, must be deemed inadmissible.

For the State, the Office of the Solicitor General (OSG) counters that the evidence clearly shows that the appellant
admitted committing the crime in several instances, not just during the custodial investigation. First, he admitted having
killed his employer to the security guard, Campos, and even sought Campos' help in disposing of Keyser's body. This
admission may be treated as part of the res gestae and does not partake of uncounselled extrajudicial confession,
according to the OSG. Thus, OSG contends said statement is admissible as evidence against the appellant. Second, the
appellant's statements before members of the media are likewise admissible in evidence, according to the OSG, as these
statements were made in response to questions by news reporters, not by police or other investigating officer. The OSG
stresses that appellant was interviewed by media on two separate occasions, and each time he made free and voluntary
statements admitting his guilt before the news reporters. He even supplied the details on how he committed the crime.
Third, the OSG points out that appellant voluntarily confessed to the killing even before the police could enter the
premises and even before any question could be posed to him. Furthermore, after the police investigators had entered the
factory, the appellant pointed to the place where Keyser's corpse was found. The OSG submits that at these points in
time, appellant was not yet under custodial investigation. Rather his statements to the police at the crime scene were
spontaneous and voluntary, not elicited through questioning, and hence must be treated as part of the  res gestae and
thus, says the OSG, admissible in evidence.

The OSG contends that not every statement made to the police by a suspect in a crime falls within the ambit of
constitutional protection. Hence, if not made under "custodial investigation" or "under investigation for the commission of
an offense," the statement is not protected by the Bill of Rights.

However, in our view, the confession appellant made while he was under investigation by SPO1 Carlito Reyes for the
killing of Keyser at the Antipolo PNP Station, falls short of the protective standards laid down by the Constitution.  Under
Article III of the Constitution, 43 a confession to be admissible must satisfy the following requisites: (a) the confession
must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the
confession must be express; and (d) the confession must be in writing. 44 In the instant case, the testimony of SPO1
Reyes on cross-examination clearly shows the cavalier treatment by the police of said constitutional guarantees. This can
readily be gleaned from the transcript of Reyes' testimony, which we excerpt:

Q: What did you do next upon arriving at the police station?

A: When we arrived at the police station, I pointed to him and asked him to read what was written on the wall which was his
constitutional rights.

Q: Did he read the same?

A: Yes, ma'm.

Q: Did you ask the accused if he did understand what he read?

A: Yes, ma'm.

Q: So Mr. Witness, you did continue your investigation at the police station?

A: Yes, ma'm.

COURT:

 What did the accused say when you asked him if he understood what was written on the wall which was his constitutional rights?

A: He said he understood what was written on the wall and he has no regrets.

COURT:

 Proceed.

DEFENSE COUNSEL:
 Who were present at the police station during your investigation?

A: There were many people around when I conducted the investigation at the police station. My companions were there but I do not
know the other persons who were present.

Q: How was the investigation that you conducted at the police station?

A: I inquired again from Eric Guillermo why he did it, the reason why he did it.

Q: And was your investigation being recorded in the police station?

A: No, ma'm.

Q: Let me just clarify, I did not mean like a tape recorder. Was it written?

A: I only asked him but it was not written down or recorded.

Q: During the investigation, was there any lawyer or counsel that was called during the investigation?

A: None, ma'm.

Q: Did you inform the accused that he has the right to get a counsel during the investigation?

A: Yes, ma'm.

Q: What did the accused say, Mr. Witness?

A: He did not utter any word.

Q: During the investigation at the police station, did you exert effort to provide him with counsel before you asked him questions?

A: No, ma'm.

Q: Why?

A: Because during that time, it was Sunday afternoon and there was no counsel around and because he already admitted that he
perpetrated the crime and that was explained to him, his constitutional rights which was on the wall. We did not provide anymore a
counsel.

Q: I would just like to ask the reason why you made the accused read the written rights that was posted on the wall of your police
station?

A: So that he would be apprised of his constitutional rights.

Q: So, you mean that you made him understand his rights?

A: Yes, ma'm.

Q: So, you mean to say before you asked him to read his rights, you presumed that he does not understand what his constitutional
rights are?

A: I think he knows his constitutional rights because he admitted the crime.

Q: And did the accused understand his rights?

A: I believe he understood because he answered, "wala akong dapat pagsisihan." ("I have nothing to regret."). 45

Appellant's alleged confession at the police station lacks the safeguards required by the Bill of Rights. The investigating
officer made no serious effort to make appellant aware of his basic rights under custodial investigation. While the
investigating officer was aware of the appellant's right to be represented by counsel, the officer exerted no effort to provide
him with one on the flimsy excuse that it was a Sunday. Despite the absence of counsel, the officer proceeded with said
investigation. Moreover, the record is bare of any showing that appellant had waived his constitutional rights in writing and
in the presence of counsel. As well said in People v. Dano, even if the admission or confession of an accused is gospel
truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion
or even if it had been voluntarily given. 46

The right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police
investigator to explain and contemplates an effective communication that results in an understanding of what is
conveyed. 47 Absent that understanding, there is a denial of the right "to be informed," as it cannot be said that the person
has been truly "informed" of his rights. Ceremonial shortcuts in the communication of abstract constitutional principles
ought not be allowed for it diminishes the liberty of the person facing custodial investigation.

Be that as it may, however, the inadmissibility of the appellant's confession to SPO1 Reyes at the Antipolo PNP Station as
evidence does not necessarily lead to his acquittal. For constitutional safeguards on custodial investigation (known, also
as the Miranda principles) do not apply to spontaneous statements, or those not elicited through questioning by law
enforcement authorities but given in an ordinary manner whereby the appellant verbally admits to having committed the
offense. The rights enumerated in the Constitution, Article III, Section 12, are meant to preclude the slightest use of the
State's coercive power as would lead an accused to admit something false. But it is not intended to prevent him from
freely and voluntarily admitting the truth outside the sphere of such power.

The facts in this case clearly show that appellant admitted the commission of the crime not just to the police but also to
private individuals. According to the testimony of the security guard, Romualdo Campos, on the very day of the killing the
appellant called him to say that he had killed his employer and needed assistance to dispose of the cadaver. Campos'
testimony was not rebutted by the defense. As the Solicitor General points out, appellant's statements to Campos are
admissible for being part of the res gestae. Under the Rules of Court, 48 a declaration is deemed part of the res
gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the
principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to
contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending
circumstances. 49 All these requisites are present in the instant case. Appellant had just been through a startling and
gruesome occurrence, the death of his employer. His admission to Campos was made while he was still under the
influence of said startling occurrence and before he had an opportunity to concoct or contrive a story. His declaration to
Campos concerned the circumstances surrounding the killing of Keyser. Appellant's spontaneous statements made to a
private security guard, not an agent of the State or a law enforcer, are not covered by the  Miranda principles and, as res
gestate, admissible in evidence against him.

Further, when interviewed on separate occasions by the media, appellant not only agreed to be interviewed by the news
reporters, but he spontaneously admitted his guilt to them. He even supplied the details regarding the commission of the
crime to reporter Kara David of GMA Channel 7, who testified in court, to wit:

PUBLIC PROSECUTOR:

Q: Could you tell us what you found out in the interview?

A: The first question I think I asked was, if he admits the crime and he gladly said yes he did it, the details about the crime, how he saw
the body and where he put it, and the reason why he did it.

xxx xxx xxx

COURT:

 To what crime did he admit?

A: He said he got mad with (sic) his boss, so he got a piece of wood, "dos por dos," he hit his boss in the back and then after that, I
think he got a saw and sawed the body to eight pieces.

xxx xxx xxx

PUBLIC PROSECUTOR:

 You said the interview was done inside the room of Col. Quintana, how many were you inside the room at that time?
A: I really could not remember but I was with my cameraman, an assistant, Col. Quintana and I think two more escorts. I could not
remember the others.

Q: You mentioned a while ago that he gladly admitted what he did, can you explain gladly admitted?

A: Usually when I interview suspects, either they deny or [are] in hysterics, but Eric seems (sic) calm when I interviewed him.

 I said, "ginawa mo ba ang krimen," and he said, "Oo." "Hindi ka ba nagdalawang isip?" "Hindi." It was kind of eerie.

Q: You also mentioned that he gave details of the crime he committed, aside from what you already mentioned like his boss being hit in
the head and cut to eight pieces, what did he tell you?

A: He told me where he put it, like he looked for sacks and cartons, and he told me where he put the head but I could not remember.

 But I remember him saying he put the head in the bag and he said he asked help from the security guard, Campos. Basically, that's it.
And he told me the reason why he did it.

Q: Why did he do it?

A: Because he was not being paid for what he has done and Mr. Keyser treated him like an animal, things like that.

 He said that what he did was just right, just justice. 50

The TV news reporters' testimonies on record show that they were acting as media professionals when they interviewed
appellant. They were not under the direction and control of the police. There was no coercion for appellant to face the TV
cameras. The record also shows that the interviews took place on several occasions, not just once. Each time, the
appellant did not protest or insist on his innocence. Instead, he repeatedly admitted what he had done. He even supplied
details of Keyser's killing. As held in Andan, statements spontaneously made by a suspect to news reporters during a
televised interview are voluntary and admissible in evidence. 51

Thus, we have no hesitation in saying that, despite the inadmissibility of appellant's alleged confession to the police, the
prosecution has amply proven the appellant's guilt in the killing of Victor F. Keyser. The bare denial raised by the appellant
in open court pales in contrast to the spontaneous and vivid out-of-court admissions he made to security guard Campos
and the two media reporters, Abelgas and David. The positive evidence, including the instruments of the crime, together
with the medical evidence as well as the testimonies of credible prosecution witnesses, leaves us no doubt that appellant
killed his employer, Victor Francisco Keyser, in the gruesome manner vividly described before the trial court.

But was appellant's offense murder for which appellant should suffer the death penalty, or only homicide for which a
lesser penalty is appropriate?

Appellant argues that the prosecution failed to prove either treachery or evident premeditation to qualify the killing as
murder. He points out that there was not a single eyewitness to show how the crime was committed and hence, absent an
eyewitness to show the manner in which the crime was committed, he cannot be held liable for murder.

For the appellee, the OSG submits that as recounted by the appellant himself, he repeatedly struck the victim, with a
piece of coco lumber (dos por dos), at the back of his head, while the victim's back was turned towards him. The
suddenness of the attack, coupled with the manner in which it was executed clearly indicates treachery. The OSG agrees
with appellant, however, that evident premeditation was not adequately established. Hence, we shall now deal only with
the disputed circumstance, treachery.

Treachery or alevosia is present when the offender commits any crime against persons employing means, methods or
forms in the execution thereof, which tend directly and specially to insure its execution without risk to the offender arising
from any defense which the offended party might make. 52 Two essential requisites must concur for treachery to be
appreciated: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or
to retaliate; and (b) the said means of execution was deliberately or consciously adopted. 53

A qualifying circumstance like treachery changes the nature of the crime and increases the imposable penalties for the
offense. Hence, like the delict itself, it must be proven beyond reasonable doubt. 54 In the instant case, we find insufficient
the prosecution's evidence to prove that the attack on the victim came without warning and that he had absolutely no
opportunity to defend himself, or to escape. None of the prosecution witnesses could know how the attack was initiated or
carried out, simply because there was no eyewitness to the offense. In addition, appellant's narration in his taped
interview with Channel 7 is not too clear on this point, thus:

ERIC GUILLERMO:

 Mura pa rin ng mura. Nagtataka ako kung bakit ganoon na lamang kainit ito. Bigla niya akong inano dito sa batok ko
tapos itinuturo niya ang dito ko (pointing to his head) itinuturoturo niya ang dito ko.

 Ayon mura ng mura, hindi ko napigilan ang sarili ko, dinampot ko iyong kahoy.

ARNOLD CLAVIO:

 Sa mga oras na 'yon, nagdilim, napuno ng galit ang kanyang mga mata, nakita niya ang isang dos por dos sa kanyang
tabi at agad dinampot habang nakatalikod ang kanyang amo.

ERIC GUILLERMO:

 Nang gawin ko sa sarili ko iyon kalmadong kalmado ako noong ginawa ko 'yon. Nasa sarili ako noong ginawa ko iyon.

ARNOLD CLAVIO:

 Hawak ang mahabang kahoy, hinampas ni Eric si Mr. Keyser, hinampas hanggang sa mawalan ng malay. Tila hindi pa
nakuntento sa kanyang nagawa, napagbalingan naman ni Eric ang isang lagare sa kanyang tabi at isinagawa na ang
karumal-dumal na krimen. 55

From the foregoing, all that can be discerned is that the victim was scolding the appellant, and the victim's back was
turned towards the appellant when the latter picked up the piece of wood. It does not, however, show that there was any
deliberate effort on the part of the appellant to adopt the particular means, method, or form of attack to ensure the
commission of the crime without affording the victim any means to defend himself.

Dr. Ravell Ronald R. Baluyot, the NBI pathologist who autopsied the victim's body, observed that it was difficult to
determine the position of the victim in relation to his assailant. 56 Nor was the expert testimony of Dr. Baluyot definitive as
to the relative position of the assailant and the victim, to wit:

DEFENSE COUNSEL:

 I would like also to ask from your medical knowledge thru the blows that the deceased received in his head which caused
the head injury, would you be able to ascertain also in what position was the attacker or where the attacker was?

A: Based on the location of the injuries at the head, it would be very difficult to determine the relative position of the victim
and assailant as well as the position of the victim when he sustained said injury, because there are injuries located at the
front, at the left and right portions of the head although there were none located at the back (stress supplied). Based on
these injuries, I would say that the position would probably be maybe in front, maybe to the left or the right in order for him
to inflict the injuries to the front, to the left and right sides of the head. 57

Noteworthy, Dr. Baluyot pointed out that based on the injuries sustained by the victim, there is an indication that he tried
to defend himself against the blows being inflicted upon him, thus:

PUBLIC PROSECUTOR:

Q: The wound that you found at the back of the hand, which is at the back of the right hand, would you characterize this
as [a] defense wound?

A: It is a defense wound. All injuries especially at the upper extremities they could be tagged as defense wounds to fend
off. . . attacks and these upper extremities are usually used to protect the head and the body. 58
The gap in the prosecution's evidence cannot be filled with mere speculation. Treachery cannot be appreciated absent the
particulars as to the manner in which the aggression commenced or how the act unfolded and resulted in the victim's
demise. 59 Any doubt as to its existence must, perforce, be resolved in favor of appellant.

One attendant circumstance, however, is amply proved by the prosecution's evidence which shows that the victim's
corpse was sawn by appellant into seven (7) pieces. Under Art. 248 (6) of the Revised Penal Code, "outraging or scoffing
at the corpse" is a qualifying circumstance. Dismemberment of a dead body is one manner of outraging or scoffing at the
corpse of the victim. 60 In the instant case, the corpse of Victor F. Keyser was dismembered by appellant who sawed off
the head, limbs, and torso. The Information categorically alleges this qualifying circumstance, when it stated that the
appellant "thereafter, cut into pieces using said saw one Victor F. Keyser." This being the case, as proved by the
prosecution, appellant is guilty not just of homicide but of murder.

The penalty for murder is reclusion perpetua to death. There being neither aggravating nor mitigating circumstances in the
instant case, the lesser penalty of reclusion perpetua should be imposed upon appellant. 61

Both appellant and appellee claim that the trial court erred in awarding damages. They submit that the trial court's award
of P50,000.00 for funeral expenses has insufficient basis, for only receipts amounting to P38,068.00 as proof of funeral
expenses were presented in evidence. Thus, this award should be reduced accordingly. Concerning the award of moral
damages in the amount of P500,000, compensatory damages also for P500,000 and exemplary damages in the amount
of P300,000, appellant submits that these cited sums are exorbitant, and not in accord with prevailing jurisprudence. The
OSG agrees, hence modification of said amounts is in order.

The amount of moral damages should be reduced to P50,000, pursuant to prevailing jurisprudence, as the purpose for
such award is to compensate the heirs of the victim for the injuries to their feelings and not to enrich them. 62 Award of
exemplary damages is justified in view of the gruesome mutilation of the victim's corpse, but the amount thereof should
also be reduced to only P25,000, following current case law.

The award of P500,000 in compensatory damages lacks proof and ought to be deleted. The victim's mother, Remedios
Keyser, testified that the victim was earning around P50,000.00 a month 63 as shown in the receipt issued by Rosetti
Electronics Phils. Co. 64 However, said receipt shows that it was made out to her, and not the victim. Moreover, it does
not show what period is covered by the receipt. Hence, the actual value of the loss of earning capacity was not adequately
established. Awards for the loss of earning capacity partake of the nature of damages, and must be proved not only by
credible and satisfactory evidence but also by unbiased proof. 65

Civil indemnity for the victim's death, however, was left out by the trial court, although now it is automatically granted
without need of proof other than the fact of the commission of the crime. 66 Hence, conformably with prevailing
jurisprudence, the amount of P50,000.00 as civil indemnity should be awarded in favor of the victim's heirs.

Nothing on the record shows the actual expenses incurred by the heirs of the victim for attorney's fees and lawyer's
appearance fees. Attorney's fees are in the concept of actual or compensatory damages and allowed under the
circumstances provided for in Article 2208 of the Civil Code, 67 one of which is when the court deems it just and equitable
that attorney's fees should be recovered. 68 In this case, we find an award of P25,000 in attorney's fees and litigation
expenses reasonable and equitable.

WHEREFORE, the assailed judgment of the Regional Trial Court of Antipolo City, Branch 73, dated March 7, 2001 in
Criminal Case No. 98-14724, finding appellant ERIC GUILLERMO y GARCIA GUILTY of the murder of Victor Francisco
Keyser is AFFIRMED with MODIFICATION. Appellant's sentence is hereby REDUCED TO RECLUSION PERPETUA. He
is also ORDERED to pay the heirs of the victim, Victor Francisco Keyser, the sum of P50,000.00 as civil indemnity,
P38,068.00 as actual damages, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P25,000.00 as
attorney's fees, without subsidiary imprisonment in case of insolvency. Costs de oficio.

SO ORDERED.
 SECOND DIVISION

[G.R. No. 116222. September 9, 1996.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LINDES PAYNOR, accused-appellant.

DECISION

REGALADO, J p:

For the fatal stabbing of Carmelita Aguinaldo at Barangay Rizal, Roxas, Isabela, herein accused-appellant Lindes Paynor,
alias "Jess," was charged with the crime of murder in Criminal Case No. 23-285 of Branch 23, Regional Trial Court of
Roxas, Isabela.

The factual backdrop of this tragic occurrence, culled from the records of the trial court and the testimonies adduced
therein, commenced at around 4:00 P.M. of September 18, 1991 when a middle-aged teacher, Carmelita Aguinaldo, was
stabbed and killed inside her classroom at the Roxas Central Elementary School. A ten-year old pupil, by the name of
Fresnaida Magaway, narrated how the events unfolded.

She testified that in the afternoon of September 18, 1991 she was assigned as a cleaner and, while sweeping the ground
near her classroom, she noticed a man who was holding a pointed knife, near the classroom of the victim. The man
entered the room of the teacher, stabbed her, and went out of the room headed west towards the fence of the school,
carrying the pointed bladed weapon in his hand and passing in front of the witness. Shortly thereafter, Ms. Aguinaldo
emerged from the room saying "Manang, nabagsol na kon," literally meaning, "Manang, I am stabbed," then she fell to the
ground. 1

The immediate reaction of this young witness was to seek help from her teachers, so she went into the classroom of her
teacher, Ms. Hermogena Uy, and told her about Ms. Aguinaldo. She then took her belongings from the classroom and
proceeded immediately to where Ms. Aguinaldo fell down and there she saw Mrs. Leticia Navarro embracing the victim,
with Mrs. Elizabeth Dumlao by their side. A tricycle came and the teachers rushed the victim to the nearby hospital. She
followed her teachers to the hospital, where Ms. Aguinaldo was pronounced dead on arrival.

Fernando Castillo, a policeman, who had responded to the crime report, testified that he went to the hospital and inquired
whether someone saw the stabbing. According to him, Fresnaida Magaway came forward and told them that she saw a
man in blue maong pants and white T-shirt printed in front, using slippers and a brown hat, and with a green towel
wrapped around his neck. He entered the school yard and went to the room of Ms. Aguinaldo where he stabbed her with a
pointed bladed weapon. She further said that if the man would be presented to her, she could recognize him. 2

The police investigators then went to the house of the family of the deceased and asked the family members if they had a
suspect in the killing of Ms. Aguinaldo. The family of the deceased pointed to appellant, the "jilted boyfriend" of the victim's
sister, as a possible suspect. The policemen then proceeded to the house of appellant, but they were informed that he
was at the Tagalag auto repair shop having his motorcycle repaired. 3

At the Tagalag auto repair shop, the policemen saw appellant wearing maong pants, while T-shirt with markings in front,
with a yellow towel wrapped around his neck and a brown hat on his head. Appellant was invited by them to their station
where he was identified by Fresnaida Magaway as the person who stabbed and killed Ms. Aguinaldo. On the strength of
said positive identification, appellant was detained at the police station.

An information was filed on September 19, 1991, charging appellant with the murder of Carmelita Aguinaldo, with evident
premeditation and treachery as attendant circumstances, by the infliction of a fatal stab wound on her chest, and
committed at the time and on the date and place earlier narrated. 4

No preliminary investigation having been conducted prior to the filling of that information, appellant's counsel filed a
motion for preliminary investigation on September 23, 1991 with the Regional Trial Court, Branch 16, at Ilagan, Isabela.
On October 18, 1991, presiding Judge Teodulo E. Mirasol issued an order directing the Provincial Prosecutor to conduct a
preliminary investigation
Denying appellant's motion for his release from detention in the meantime, said court issued an order on November 8,
1991 that —

"...the court is of the opinion that the arrest is lawful, considering that the accused was arrested immediately after the
commission of the offense, the police officers acting with promptness after a credible information furnished them by a
credible witness. That the police acted with personal knowledge of facts fed them by a witness who has no sufficient time
to reflect on what she was going to tell the police (is) indicative of truthfulness in pointing to the accused as the author of
the stabbing." 5

On November 22, 1991, a resolution was issued by the Office of the Provincial Prosecutor maintaining the information
filed on September 19, 1991. On December 12, 1991, appellant was duly arraigned and, on his plea of not guilty to the
charge for murder the court below thereafter proceeded with the trial.

The prosecution based its case primarily on the testimony of a lone eyewitness, and this in the person of a ten-year old
girl, Fresnaida Magaway. Considering that doubts may be entertained in view of her tender years, and for a graphic
illustration and clearer appreciation of what actually transpired on the afternoon of 18 September 1991 as seen through
the eyes of this eyewitness, we quote the pertinent transcripts of stenographic notes of her testimony:

"Q Do you know the name of that man whom you pointed to the court?

A Yes, sir.

Q Will you please tell his name if you know?

A Jessie Paynor, sir.

Q Can you recall the attire and appearance of the accused whom you pointed to when he stabbed Ms. Aguinaldo in her room on
September 18, 1991, at 4:00 o'clock in the afternoon?

A He ha(d) a white t-shirt, denim pants and he ha(d) a woven hat and a green towel. (The witness demonstrating as if the towel was
wrapped around her neck) 6

xxx xxx xxx

Q Did you not tell Mrs. Uy that you saw the man who stabbed Mrs. Aguinaldo?

A I told her sir, but I did not tell the name.

Q Do you know the name of the person at the time you told Mrs. Uy the identity of the assailant?

A Jessie, sir.

Q Yes, did you mention the name of Jessie to Mrs. Uy when you told Mrs. Uy that you saw the stabbing of Mrs. Aguinaldo?

A No, sir.

Q Can you tell this court why you failed to inform Mrs. Uy your teacher, the identity of the assailant?

A I did not tell her sir because I followed Mrs. Aguinaldo.

Q You did not tell her or you failed to tell her because you immediately followed where Mrs. Aguinaldo was brought to, is that what you
mean?

A Yes, sir.

Q Now, that person whom you identified as Jess, from the way you testify, you already know him, is that correct, at the time of the
stabbing?

A Yes, sir. 7

xxx xxx xxx

Q Now how did you notice if it is true that you recognized for the third time that he was walking to and fro in front of your room and the
room of Mrs. Aguinaldo the identity of the assailant of Mrs. Aguinaldo?

A Because he was walking to and fro my attention was attracted.

Q So when the third time that you noticed him walking to and fro, could you tell the court what special feature of that person walking to
and fro attracted your attention?

A I saw the face, sir.

Q Is that the only thing that you saw in that person, his face?

A I saw the apparel, sir.

Q And it was at the fourth time that he walked to and fro when he entered the room of Mrs. Aguinaldo?

A Yes, sir.

Q And during that time he was walking to and fro you already saw him holding a knife, is that correct?

A Not yet, sir.

Q At what point in time did you see him if you saw him h(o)ld a knife?

A I did not yet see the knife he used to stab Mrs. Aguinaldo, sir.

COURT:

Q Yes, did you see any knife in his possession during or after the incident?

A After Mrs. Aguinaldo was stabbed I saw him holding the knife because he was facing me at that time.

Q So that was the only time that you saw him, I mean the assailant, holding a knife when he passed by you?

A Yes, sir.

Q And when the assailant came out of the room of Mrs. Aguinaldo how did he leave the room, he ran, he walk(ed),or what?

A After ma'am Aguinaldo was stabbed the assailant ran away, sir. 8

As earlier stated, both in the police station and then in open court, the young girl positively identified appellant as the
person she saw on September 18, 1991 who stabbed and killed the victim, Mrs. Carmelita Aguinaldo.

Appellant denied having been anywhere near the school on September 18, 1991 and insisted that he was at the Tagalag
auto repair shop, busy having his motorcycle repaired. Testifying in his defense, appellant blandly declared that he went
to the repair shop at 2:10 in the afternoon of that day, to have his motorcycle repaired; that he had to push his motorcycle
to the shop and when they tested it there, it would not start; that the owner suggested and he agreed that the engine be
overhauled; that he was at that shop all the time, helping in the overhauling until 5:00 P.M. when policemen arrived and
invited him to go with them to the police station. 9

The testimony of appellant was corroborated by Cecilio Tagalag who testified that the former was at their motor shop from
2:00 to 5:00 p.m. on September 18, 1991 and left only when he was picked up by the police authorities at around 5:00
o'clock that afternoon. 10

The trial court rendered judgment on April 21, 1994, finding against appellant and commending the lone eyewitness for
the prosecution, Fresnaida Magaway. These words of said court therein are worth repeating, before the dispositive portion
that follows:

"Cross examined on several occasions, this young girl stuc(k) to the testimony that it was the accused whom she saw
enter the room, then left followed by the victim shouting for help. During these gruelling and excruciating cross-
examinations, she never faltered. She never showed any sign of fear. She never wavered, she stuc(k) to her testimony.
This girl is no ordinary girl. She is made of metal far better than some adults. For adults are always mindful of their safety
and their families. Even if they have actually seen a person shot to death, stabbed to death, or mauled to death, they
would not come out in the open and volunteer the information that they saw the killing. Either they keep quiet, or deny
having witnessed such incident. But this girl is different. She volunteered to describe the attire of the accused.

xxx xxx xxx

If only witnesses who see actual killings, have the guts and the courage of this girl, all unsolved criminal cases would be
solved. This girl shames the adults, especially those who do not come out (in) the open when they witness crimes. If only
those witnesses were Fresnaida Magaway, all crimes would have been solved, and the malefactors sent to jail. This girl is
an epitome of courage and guts. Fearless and intelligent, she has done what adults shu(n) to do. 11

xxx xxx xxx

AS A CONSEQUENCE OF ALL THE FOREGOING, the court finds the accused guilty beyond reasonable doubt of the
crime of murder provided for and penalized by Article 248 of the Revised Penal Code, and imposes upon him the penalty
of Reclusion Perpetua,together with all the necessary penalties provided by law, to indemnify the heirs of the victim in the
amount of P50,000.00 pesos, without however, subsidiary imprisonment in case of insolvency, and to pay cost." 12

Appellant now seeks the reversal of that verdict, claiming that the trial court erred: (1) in giving credence to the testimony
of Fresnaida Magaway in convicting him in spite of the material flaws, contradictions, and improbabilities inherent in her
testimony; (2) in admitting in evidence the following physical evidence: white T-shirt, denim pants, green towel, and hat, in
spite of the clear violation of the Miranda doctrine during the custodial investigation of the accused; (3) in convicting him
based on mere circumstantial evidence from an account of one highly questionable witness; and (4) in convicting him of
the offense charged despite failure of the prosecution to prove the qualifying circumstances of treachery and evident
premeditation. 13

Appellant specifically laments the mode by which Fresnaida Magaway identified him, theorizing that if the witness really
knew him, she should have mentioned his name the moment she was asked by the police as to who stabbed the victim;
instead of resorting to a "descriptive identification." 14

He likewise also argues that there was a violation of the Miranda rights of an accused when he was identified by the
witness while he was seated on a bench of the investigation room. The manner employed by the investigators in obtaining
his T-shirt, pants, towel, slippers, and hat, according to appellant, was a further violation of his rights as these items were
taken from him in the absence of his counsel.

The defense also asserts that the lower court relied upon the testimony of a highly questionable witness in the person of
Fresnaida Magaway, and that the conviction of appellant was based purely on circumstantial evidence which should not
have been taken as proof beyond reasonable doubt that he really stabbed the victim to death. The final contention is that
the prosecution failed to prove either that there was treachery employed by the accused in the killing of the victim or that
there was evident premeditation on his part to take her life.

On the allegation of inconsistency and flaws in the testimony of a single eyewitness, a thorough review of the transcripts
of stenographic notes, particularly those on the testimony of witness Fresnaida Magaway, does not reveal any major
inconsistency. Instead, the Court is regaled by the unswerving and consistent position of the witness that appellant was
the only one whom she saw on that occasion and that he stabbed and killed her teacher, Mrs. Aguinaldo. Any minor
lapses therein tend to buttress, rather than weaken, her credibility since they show that she was neither coached nor were
her answers contrived. 15

The contention of appellant that the expected reaction of the witness should have been to identify him by name is an
obvious non sequitur.What should be considered as a general or common rule is that witnesses to a crime react in
different ways. In the instant case, the youthful witness was unable to immediately reveal the name of appellant to the
police as she was evidently scared or confused and, as she explained, she also failed to name appellant at that time since
her concern and thoughts were of her teacher whom she followed to the hospital. Surely, we can not fault the young girl
for her confusion and fear, it being her first time to witness such a crime of violence.
The important thing is that when she testified at the trial, she was firm, spontaneous and categorical in her declaration that
it was appellant whom she saw that afternoon, and that it was he who entered the classroom of her teacher and stabbed
the latter with a pointed bladed weapon. The witness stood by her declaration, unshaken throughout the entire trial, and
never showed any hesitation in her testimony.

Another fact worth stressing is that the witness had no motive whatsoever to fabricate a serious charge against appellant.
When there is no showing that the principal witness for the prosecution was actuated by an improper motive, the
presumption is that he was not so actuated, and his testimony is thus entitled to full faith and credit. 16

Appellant then asseverates that there was a violation of his rights while under custodial investigation, in light of
the Miranda doctrine, when allegedly the police investigators unceremoniously stripped him of his clothing and personal
items, and the same were later introduced as evidence during the trial. The Court is not persuaded. The protection of the
accused under custodial investigation, which is invoked by appellant, refers to testimonial compulsion. Section 12, Article
III of the Constitution provides that such accused shall have the right to be informed of his right to remain silent, the right
to counsel, and the right to waive the right to counsel in the presence of counsel, and that any confession or admission
obtained in violation of his rights shall be inadmissible in evidence against him. As held in People vs. Gamboa, 17 this
constitutional right applies only against testimonial compulsion and not when the body of the accused is proposed to be
examined. In fact, an accused may validly be compelled to be photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enable the foregoing things to be done, without running afoul of the
proscription against testimonial compulsion. 18

The desperate ploy of appellant that the evidence against him was purely circumstantial does not even warrant refutation.
It was definitely established by the prosecution that appellant was actually the one who treacherously attacked the victim.
Eyewitness Magaway unequivocally stated and lucidly described how she saw appellant actually stabbing Mrs.
Aguinaldo, 19 and even demonstrated during the ocular inspection the specific part of the room where the crime was
committed and where she herself was when she witnessed the dastardly deed. 20 As already explained, the defense
failed to show that the witness had ill motives in testifying against appellant and there is no doubt in the mind of this Court
that the witness really had no personal ill feelings against him. The conclusion that irresistibly emerges, therefore, is that
the witness was just honestly relating what she really saw on September 18, 1991, and that she so testified because of
her desire for justice and redress for the terrible wrong against her teacher.

The fourth error assigned by appellant that evident premeditation and treachery were not proved merits some comment. it
is correct that evident premeditation was not established. There is no evidence or showing on record when and how
appellant planned and prepared for the killing of the victim. His allegation that there was no treachery, however, is a
different matter. The attack against Mrs. Aguinaldo was so sudden that, although she was stabbed by appellant while she
was facing him, the unexpected attack in itself constituted treachery. The victim was caught unaware and did not have
any opportunity to defend herself. Also, from the means and methods adopted by appellant to commit the crime, it would
be incredible to assume that the same were not deliberately adopted to insure the consummation of the felony.

Lastly, there can be no sensible debate that appellant's defense of alibi has to be rejected. It is elementary that for this
discredited defense, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is
indispensable. 21 In the present case, the court below found that appellant was then just one kilometer away from the
scene of the crime. 22 Furthermore, the defense of alibi can not prevail over the positive identification of the accused by
an eyewitness who had no improper motive to falsely testify. 23

WHEREFORE, the judgment appealed from is hereby affirmed in toto,with costs against accused-appellant Lindes
Paynor.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 109775. November 14, 1996.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias "MANOLO", accused-

appellant.

DECISION

FRANCISCO, J p:

Appellant Jose Encarnacion Malimit, charged with 1 and convicted of the special complex crime of robbery with
homicide, 2 was meted by the trial court 3 the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of
Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of insolvency, and
to pay the cost. 4

In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to wit:

"I

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION
WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-APPELLANT AS THE PERPETRATOR OF
THE CRIME DESPITE THE FACT (SIC) THEY REVEALED THEIR ALLEGED 'KNOWLEDGE' OF THE CRIME MORE
THAN FIVE MONTHS AFTER THE INCIDENT.

II

THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS ALTHOUGH THE
CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL
RIGHTS OF THE ACCUSED.

III

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 5

The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the evidence on
record:

"On April 15, 1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store. Malaki's houseboy
Edilberto Batin, on the other hand, was busy cooking chicken for supper at the kitchen located at the back of the store
(TSN, June 19, 199 (sic), p. 14).

"Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase chemical for his rice
farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately one hundred and fifty (150) meters distant
from Malaki's store (Ibid., p. 24).

"Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store, to ask his employer
(Malaki) if supper is to be prepared. As Batin stepped inside the store, he was taken aback when he saw appellant coming
out of the store with a bolo (TSN, June 9, 1992, p. 14), while his boss, bathed in his own blood, was sprawled on the floor
'struggling' for his life' (hovering between life and death) (Ibid.).

"Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose Malimit (or 'Manolo')
rushing out through the front door of Malaki's store with a blood-stained bolo (TSN, May 22, 1992, p. 29). Aided by the
illumination coming from a pressure lamp ('petromax') inside the store, Rondon clearly recognized Malimit (Ibid., p. 22).

"Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June 9, 1992, p. 15). After
a brief conversation, both Batin and Rondon rushed to the nearby house of Malaki's brother-in-law Eutiquio Beloy and
informed Beloy of the tragic incident which befell Malaki. Batin, along with Beloy, went back to the store. Inside, they saw
the lifeless body of Malaki in a pool of blood lying prostrate at the floor. Beloy readily noticed that the store's drawer was
opened and ransacked and the wallet of Malaki was missing from his pocket (Ibid., pp. 16-17)." 6

In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon and
Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He posits that while the
crime took place on April 15, 1991, it was only on September 17, 1991 when these witnesses tagged him as the culprit.

We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin implicated the
appellant to this gruesome crime only on September 17, 1991. The aforementioned date however, was merely the
date 7 when Rondon and Batin executed their respective affidavits, 8 narrating that they saw the appellant on the night of
April 15, 1991 carrying a bolo stained with blood and rushing out of Malaki's store. As to appellant's claim of delay suffice
it to state that extant from the records are ample testimonial evidence negating appellant's protestation, to wit. (1) after
having discovered the commission of the crime, Rondon and Batin immediately looked for Eutiquio Beloy, Malaki's
brother-in-law, and informed him that appellant was the only person they saw running away from the crime scene;  9 (2)
Beloy and Batin reported the crime with the CAFGU detachment in their barangay where Batin declared that it was
appellant who robbed Malaki on that fateful night; 10 and (3) Batin again made a similar statement later at the Silago
Police Station. 11

Next, appellant derided the non-presentation by the prosecution of the police blotter which could prove, if appellant was
indeed implicated right away by Batin to the crime. 12 We do not believe, however, that it was necessary for the
prosecution to present as evidence a copy of the aforementioned police blotter. Neither was its non-presentation in court
fatal to the prosecution's case. Entries in the police blotter are merely corroborative evidence of the uncontroverted
testimony of Batin that he identified the appellant as the perpetrator of the crime before the Silago police. As such, its
presentation as evidence is not indispensable. 13 Besides, if appellant believed that he was not identified therein, then he
should have secured a copy thereof from the Silago Police Station and utilized the same as controverting evidence to
impeach Batin's credibility as witness. 14 Having failed to do so appellant cannot now pass the blame on the prosecution
for something which appellant himself should have done.

Even assuming arguendo that Rondon and Batin identified the appellant only on September 15, 1991, or after the lapse of
five months from commission of the crime, this fact alone does not render their testimony less credible. The non-
disclosure by the witness to the police officers of appellant's identity immediately after the occurrence of the crime is not
entirely against human experience. 15 In fact the natural reticence of most people to get involved in criminal prosecutions
against immediate neighbors, as in this case, 16 is of judicial notice. 17 At any rate, the consistent teaching of our
jurisprudence is that the findings of the trial court with regard to the credibility of witnesses are given weight and the
highest degree of respect by the appellate court. 18 This is the established rule of evidence, as the matter of assigning
values to the testimony of witnesses is a function best performed by the trial court which can weigh said testimony in the
light of the witness' demeanor, conduct and attitude at the trial. 19 And although the rule admits of certain exceptions,
namely: when patent inconsistencies in the statements of witnesses are ignored by the trial court, or (2) when the
conclusions arrived at are clearly unsupported by the evidence, 20 we found none in this case.

In his second assignment of error, appellant asseverates that the admission as evidence of Malaki's wallet 21 together
with its contents, viz., (1) Malaki's residence certificate; 22 (2) his identification card; 23 and (3) bunch of keys, 24 violates
his right against self-incrimination. 25 Likewise, appellant sought for their exclusion because during the custodial
investigation, wherein he pointed to the investigating policemen the place where he hid Malaki's wallet, he was not
informed of his constitutional rights.

We are not persuaded. The right against self-incrimination guaranteed under our fundamental law finds no application in
this case. This right, as put by Mr. Justice Holmes in Holt vs. United States, 26 ". . . is a prohibition of the use of physical
or moral compulsion, to extort communications from him . . ." It is simply a prohibition against legal process to extract from
the [accused]'s own lips, against his will, admission of his guilt. 27 It does not apply to the instant case where the evidence
sought to be excluded is not an incriminating statement but an object evidence. Wigmore, discussing the question now
before us in his treatise on evidence, thus, said:

"If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for
his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself up in his
house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that
might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a
clear reduction ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . .
but testimonial compulsion." 28

Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the provision of
the Constitution under Article III, Section 12, viz:

"(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 Sec. 17 hereof, shall be inadmissible in evidence against

him." (Italics ours.)

xxx xxx xxx"

These are the so-called "Miranda rights" so oftenly disregarded by our men in uniform. However, infractions thereof render
inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other
evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, 29 is not affected even if
obtained or taken in the course of custodial investigation. Concededly, appellant was not informed of his right to remain
silent and to have his own counsel by the investigating policemen during the custodial investigation. Neither did he
execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these
constitutional short-cuts do not affect the admissibility of Malaki's wallet, identification card, residence certificate and keys
for the purpose of establishing other facts relevant to the crime. Thus, the wallet is admissible to establish the fact that it
was the very wallet taken from Malaki on the night of the robbery. The identification card, residence certificate and keys
found inside the wallet, on the other hand, are admissible to prove that the wallet really belongs to Malaki. Furthermore,
even assuming arguendo that these pieces of evidence are inadmissible, the same will not detract from appellant's
culpability considering the existence of other evidence and circumstances establishing appellant's identity and guilt as
perpetrator of the crime charged.

We now come to appellant's third assignment of error where he demurs on the prosecution's evidence, contending that
they are insufficient to sustain his conviction.

Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of conviction
based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and
reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime.  30 In
order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz.,
(a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 31 In this case, there
were at least five (5) circumstances constituting an unbroken chain of events which by their "concordant combination and
cumulative effect", satisfy the requirements for the conviction of the appellant, 32 specifically: (1) appellant was seen by
Rondon and Batin, whose credibilities were untarnished, holding a bolo in his right hand and rushing out of Malaki's store
seconds prior to their discovery of the crime; 33 (2) Malaki sustained multiple stab wounds 34 and he died of "cardiac
arrest, secondary to severe external hemorrhage due to multiple stab wounds"; 35 (3) witness Elmer Ladica saw the
appellant on August 6, 1991, accompanied by some policemen, retrieve Malaki's wallet underneath a stone at the
seashore in Barangay Hingatungan; 36 (4) appellant himself admitted in his testimony that on August 6, 1991, he
accompanied several policemen to the seashore where he hid Malaki's wallet; 37 and (5) appellant's flight and his
subsequent disappearance from Hingatungan immediately after the incident. 38

On the other hand, appellant's version of the story does not inspire belief. He maintains that on that fateful night he was in
his house together with his wife. He claims that they had just arrived from a gambling spree allegedly in the house of a
certain Maui Petalcorin. Surprisingly, however, the defense did not bother to call appellant's wife to the witness stand to
corroborate appellant' s alibi. Neither did it present as witness Maui Petalcorin, or any other person who may have seen
the appellant in the said place, if only to provide a semblance of truth to this assertion. As the defense of alibi is weak in
view of the positive identification of the appellant by the prosecution witnesses, 39 it becomes weaker because of the
unexplained failure of the defense to present any corroboration. 40 Furthermore, proof that appellant was in his house
when the crime was committed is not enough. Appellant must likewise demonstrate that he could not have been
physically present at the place of the crime on in its vicinity, at the time of its commission. 41 In this case, appellant
himself admitted that his house was just about eighty (80) meters away from the house of Malaki. 42 It was, therefore, not
impossible for him to have been physically present at the place of the commission of the crime, as in fact, no evidence to
negate this possibility was ever adduced by him at the trial.

Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along the seashore, and that
he feared being implicated in the crime for which reason he hid the wallet underneath a stone, hardly inspires belief. We
are at a loss, just as the trial court was, as to why appellant should fear being implicated in the crime if indeed he merely
found Malaki's wallet by chance. No inference can be drawn from appellant's purported apprehension other than the
logical conclusion that appellant had knowledge of the crime. Besides, proof that appellant is in possession of a stolen
property gives rise to a valid presumption that he stole the same. 43

In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by the trial court of
the special complex crime of robbery with homicide, defined and penalized under Article 294, paragraph 1 of the Revised
Penal Code.

WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto.

SO ORDERED.

FIRST DIVISION
[G.R. No. 7081. September 7, 1912.]

THE UNITED STATES, plaintiff-appellee, vs. TAN TENG, defendant-appellant.

DECISION

JOHNSON, J p:

This defendant was charged with the crime of rape. The complaint alleged:

"That on or about September 15, 1910, and before the filing of this complaint, in the city of Manila, Philippine Islands, the
said Tan Teng did willfully, unlawfully and criminally, and employing force, lie and have carnal intercourse with a certain
Oliva Pacomio, a girl 7 years of age."

After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty of the offense of  abusos
deshonestos, as defined and punished under article 439 of the Penal Code, and sentenced him to be imprisoned for a
period of 4 years 6 months and 11 days of prison correccional, and to pay the costs.

From that sentence the defendant appealed and made the following assignments of error in this court:

"I. The lower court erred in admitting the testimony of the physicians about having taken a certain substance from the
body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to
demonstrate the physical condition of the accused with reference to a venereal disease.

"II. The lower court erred in holding that the complainant was suffering from a venereal disease produced by contact with
a sick man.

"III. The court erred in holding that the accused was suffering from a venereal disease.

"IV. The court erred in finding the accused guilty from the evidence."

From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven years of age, was, on
the 15th day of September, 1910, staying in the house of her sister, located on Ilang-Ilang Street, in the city of Manila; that
on said day a number of Chinamen were gambling in or near the said house; that some of said Chinamen had been in the
habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on the day in question, after having taken
a bath, returned to her room; that the defendant followed her into her room and asked her for some face powder, which
she gave him; that after using some of the face powder upon his private parts, he threw the said Oliva upon the floor,
placing his private parts upon hers, and remained in the position for some little time. Several days later, perhaps a week
or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease known as gonorrhea. It
was at the time of this discovery that Oliva related to her sister what had happened upon the morning of the 15th of
September. The sister at once put on foot an investigation to find the Chinaman. A number of Chinamen were collected
together. Oliva was called upon to identify the one who had abused her. The defendant was not present at first. Later he
arrived and Oliva identified him at once as the one who had attempted to violate her.

Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and
examined. The policeman who examined the defendant swore that his body bore every sign of the fact that he was
suffering from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the
body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of
the same. The result of the examination showed that the defendant was suffering from gonorrhea.

During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the ground that because
of her tender years her testimony should not be given credit. The lower court, after carefully examining her with reference
to her ability to understand the nature of an oath, held that she had sufficient intelligence and discernment to justify the
court in accepting her testimony with full faith and credit. With the conclusion of the lower court, after reading her
declaration, we fully concur.
The defense in the lower court attempted to show that the venereal disease of gonorrhea might be communicated in ways
other than by contact such as is described in the present case, and called medical witnesses for the purpose of supporting
that contention. Judge Lobingier, in discussing that question said:

"We shall not pursue the refinement of speculation as to whether or not this disease might, in exceptional cases, arise
from other than carnal contact. The medical experts, as well as the books, agree that in ordinary cases it arises from that
cause, and if this was an exceptional one, we think it was incumbent upon the defense to bring it within the exception."

The offended party testified that the defendant had rested his private parts upon hers for some moments. The defendant
was found to be suffering from gonorrhea. The medical experts who testified agreed that this disease could have been
communicated from him to her by the contact described. Believing as we do the story told by Oliva, we are forced to the
conclusion that the disease with which Oliva was suffering was the result of the illegal and brutal conduct of the
defendant. Proof, however, that Oliva contracted said obnoxious disease from the defendant is not necessary to show that
he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration.

The defendant attempted to prove in the lower court that the prosecution was brought for the purpose of compelling him to
pay to the sister of Oliva a certain sum of money.

The defendant testified and brought other Chinamen to support his declaration, that the sister of Oliva threatened to have
him prosecuted if he did not pay her the sum of P60. It seems impossible to believe that the sister, after having become
convinced that Oliva had been outraged in the manner described above, would consider for a moment a settlement for the
paltry sum of P60. Honest women do not consent to the violation of their bodies nor those of their near relatives, for the
filthy consideration of mere money.

In the court below the defendant contended that the result of the scientific examination made by the Bureau of Science of
the substance taken from his body, at or about the time he was arrested, was not admissible in evidence as proof of the
fact that he was suffering from gonorrhea. That to admit such evidence was to compel the defendant to testify against
himself. Judge Lobingier, in discussing that question in his sentence, said:

"The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object
found on his person was examined; seems no more to infringe the rule invoked, than would the introduction in evidence of
stolen property taken from the person of a thief."

The substance was taken from the body of the defendant without his objection, the examination was made by competent
medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge
Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no
question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the
clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime,
there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would
think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not
be used against him as evidence, without violating the rule that a person shall not be required to give testimony against
himself.

The question presented by the defendant below and repeated in his first assignment of error is not a new question, either
to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this
question, said:

"But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of
physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may
be material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a
photograph in proof. Moreover we are not considering how far a court would go in compelling a man to exhibit himself, for
when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is
competent."

The question which we are discussing was also discussed by the supreme court of the State of New Jersey, in the case of
State vs. Miller (71 N. J) Law Reports, 527). In that case the court said, speaking through its chancellor:
"It was not erroneous to permit the physician of the jail in which the accused was confined, to testify to wounds observed
by him on the back of the hands of the accused, although he also testified that he had the accused removed to a room in
another part of the jail and divested of his clothing. The observation made by the witness of the wounds on the hands and
testified to by him, was in no sense a compelling of the accused to be a witness against himself. If the removal of the
clothes had been forcible and the wounds had been thus exposed, it seems that the evidence of their character and
appearance would not have been objectionable."

In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of the house where the
crime was committed, for the purpose of ascertaining whether or not his hand would have produced the bloody print. The
court said, in discussing that question:

"It was not erroneous to permit evidence of the coincidence between the hand of the accused and the bloody prints of a
hand upon the wall of the house where the crime was committed, the hand of the accused having been placed thereon at
the request of persons who were with him in the house."

It may be added that a section of the wall containing the blood prints was produced before the jury and the testimony of
such comparison was like that held to be proper in another case decided by the supreme court of New Jersey in the case
of Johnson vs. State (30 Vroom, N. J., Law Reports, 271). The defendant caused the prints of the shoes to be made in the
sand before the jury, and witnesses who had observed shoe prints in the sand at the place of the commission of the crime
were permitted to compare them with what they had observed at that place.

In that case also the clothing of the defendant was used as evidence against him.

To admit the doctrine contended for by the appellant might exclude the testimony of a physician or a medical expert who
had been appointed to make observations of a person who plead insanity as a defense, where such medical testimony
was against the contention of the defendant. The medical expert must necessarily use the person of the defendant for the
purpose of making such examination. (People vs. Austin, 199 N. Y., 446.) The doctrine contended for by the appellant
would also prevent the courts from making an examination of the body of the defendant where serious personal injuries
were alleged to have been received by him. The right of the courts in such cases to require an exhibit of the injured parts
of the body has been established by a long line of decisions.

The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against
himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an
admission of his guilt.

Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:

"If, in other words, it (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also
for his physical control in whatever form exercised, then it would be possible for a guilty person to shut himself up in his
house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that
might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a
clear reductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . .
but testimonial compulsion." (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of prisoners before trial,
or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a
crime. (People vs. Gardner, 144 N. Y., 119.)

The doctrine contended for by the appellant would prohibit courts from looking at the face of a defendant even, for the
purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted.
Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the
Philippine Bill, because it does not call upon the accused as a witness — it does not call upon the defendant for his
testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony by his
body but his body itself.

As was said by Judge Lobingier:

"The accused was not compelled to make any admission or answer any questions, and the mere fact that an object found
upon his body was examined seems no more to infringe the rule invoked than would the introduction of stolen property
taken from the person of a thief."

The doctrine contended for by the appellant would also prohibit the sanitary department of the Government from
examining the body of persons who are supposed to have some contagious disease.

We believe that the evidence clearly shows that the defendant was suffering from the venereal disease, as above stated,
and that through his brutal conduct said disease was communicated to Oliva Pacomio. In a case like the present it is
always difficult to secure positive and direct proof. Such crimes as the present are generally proved by circumstantial
evidence. In cases of rape the courts of law require corroborative proof, for the reason that such crimes are generally
committed in secret. In the present case, taking into account the number and credibility of the witnesses, their interest and
attitude on the witness stand, their manner of testifying and the general circumstances surrounding the witnesses,
including the fact that both parties were found to be suffering from a common disease, we are of the opinion that the
defendant did, on or about the 15th of September, 1910, have such relations as above described with the said Oliva
Pacomio, which under the provisions of article 439 of the Penal Code makes him guilty of the crime of "abusos
deshonestos," and taking into consideration the fact that the crime which the defendant committed was done in the house
where Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law should be imposed. The
maximum penalty provided for by law is six years of prison correccional. Therefore let a judgment be entered modifying
the sentence of the lower court and sentencing the defendant to be imprisoned for a period of six years of prision
correccional, and to pay the costs. So ordered.
 EN BANC

[G.R. No. 144656. May 9, 2002.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-

appellant.

DECISION

PER CURIAM p:

This is an appeal from the decision 1 of the Regional Trial Court, Branch 88, Cavite City, sentencing Gerrico
Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of P100,000.00 as civil
indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario, Cavite
on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged:

"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of Cavite, Philippines
and within the jurisdiction of this Honorable Trial Court, the above-named accused, with lewd design, by means of force
and intimidation, did then and there, willfully, unlawfully and feloniously have sexual intercourse with DAISY
DIOLOLA Y DITALO, a nine-year old child against the latter's will and while raping the said victim, said accused strangled
her to death."

"CONTRARY TO LAW." 2

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty to the crime
charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim's mother; Dr. Antonio S. Vertido,
medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the
Public Attorney's Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist; SPO1
Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of
the victim.

The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the afternoon of July 10, 1999, she sent her
9-year old daughter Daisy Diolola to their neighbor's house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the
sister of accused-appellant, could help Daisy with her lessons. Aimee's house, where accused-appellant was also staying,
is about four to five meters away from Daisy's house. Ma. Nida saw her daughter go to the house of her tutor. She was
wearing pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were
looking for a book which accused-appellant could copy to make a drawing or a poster that Daisy would submit to her
teacher. After finding the book, Daisy and accused-appellant went back to the latter's house. When Ma. Nida woke up at
about 5:30 o'clock after an afternoon nap, she noticed that Daisy was not yet home. She started looking for her daughter
and proceeded to the house of Aimee, Daisy's tutor. Aimee's mother told Ma. Nida that Daisy was not there and that
Aimee was not able to help Daisy with her lessons because Aimee was not feeling well as she had her menstrual period.
Ma. Nida looked for Daisy in her brother's and sister's houses, but she was not there, either. At about 7:00 o'clock that
evening, Ma. Nida went back to her neighbor's house, and there saw accused-appellant, who told her that Daisy had gone
to her classmate's house to borrow a book. But, when Ma. Nida went there, she was told that Daisy had not been there.
Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30 o'clock in the afternoon. Jessiemin
Mataverde also told Ma. Nida that Daisy was playing in front of her house that afternoon and even watched television in
her house, but that Daisy later left with accused-appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday, until the early
morning of the following day, June 11, 1999, a Sunday, but their search proved fruitless. Then, at about 10:00 o'clock in
the morning of June 11, 1999, she was informed that the dead body of her daughter was found tied to the root of an
aroma tree by the river after the "compuerta" by a certain Freddie Quinto. The body was already in the barangay hall
when Ma. Nida saw her daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her neck.
Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police. The
other barangay officers fetched accused-appellant from his house and took him to the barangay hall. At the barangay hall,
Ma. Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since he was with the victim when she
was last seen alive. 3

Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the afternoon of that day, she saw Daisy
playing with other children outside her house. She asked Daisy and her playmates to stop playing as their noise was
keeping Jessiemin's one-year old baby awake. Daisy relented and watched television instead from the door of Jessiemin's
house. About five minutes later, accused-appellant came to the house and told Daisy something, as a result of which she
went with him and the two proceeded towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her daughter were in front of a store across
the street from her house, accused-appellant arrived to buy a stick of Marlboro cigarette. Accused-appellant had only his
basketball shorts on and was just holding his shirt. They noticed both his shorts and his shirt were wet. After lighting his
cigarette, accused-appellant left. 4

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o'clock in the afternoon of July 10,
1999, while she and her husband and children were walking towards the "compuerta" near the seashore of Ligtong,
Rosario, Cavite, they met a fisherman named Herminio who said that it was a good day for catching milkfish (bangus). For
this reason, according to this witness, they decided to get some fishing implements. She said they met accused-appellant
Gerrico Vallejo near the seashore and noticed that he was uneasy and looked troubled. Charito said that accused-
appellant did not even greet them, which was unusual. She also testified that accused-appellant's shorts and shirt ( sando)
were wet, but his face and hair were not. 5

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr. responded to
the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived, Daisy's body was already
in the barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was wearing pink short pants and a
dirty white panty with a dirty white sleeveless shirt wrapped around her neck. The body was afterwards taken to the
Samson Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie Quinto was
fishing near the compuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an
aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Esting, were also
taken into custody because they were seen with accused-appellant in front of the store in the late afternoon of July 10,
1999. Later, however, the two were released. Based on the statements of Jessiemin Mataverde and Charito Paras-Yepes,
the policemen went to the house of accused-appellant at about 4:00 o'clock in the afternoon of July 11, 1999 and
recovered the white basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball
shorts, with the number 9 printed on it, worn by accused-appellant the day before. The shirt and shorts, which were
bloodstained, were turned over to the NBI for laboratory examination. 6

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock in the evening of July 11, 1999, he
conducted a physical examination of accused-appellant. His findings 7 showed the following:

"PHYSICAL FINDINGS:

"Abrasions: thigh, right, antero-lateral aspect, lower 3rd, 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right anterior aspect,
28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms.

"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.

"Lacerations, left ring finger, posterior aspect, 0.3 cm.

"(Living Case No. BMP-9902, p. 101, records)"

At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for an autopsy on
the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem findings: 8
"Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue protruding, bloating of the
face and blister formation.

"Washerwoman's hands and feet.

"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehead, 13.0 x 5.0 cms.
upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right
anteromedial aspect, middle 3rd, 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x
9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and
little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0 x 5.0 cms., legs, right anterior aspect,
upper and middle 3rd, 3.0 x 2.5 cms. foot right, dorsal aspect.

"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

"Fracture, tracheal rings.

"Hemorrhages, interstitial, neck, underneath, nailmarks.

"Petechial hemorrhages, subendocardial, subpleural.

"Brain and other visceral organs are congested.

"Stomach, contains ½ rice and other food particles.

"CAUSE OF DEATH: — Asphyxia by Manual Strangulation.

"GENITAL EXAMINATION: — Pubic hair, no growth. Labia majora and minora, gaping and congested. Hymen,
moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 o'clock positions, edges with blood clots."
[Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder at past 10:00
o'clock in the evening of June 11, 1999. The mayor said he immediately proceeded to the municipal jail, where accused-
appellant was detained, and talked to the latter. Accused-appellant at first denied having anything to do with the killing and
rape of the child. The mayor said he told accused-appellant that he could not help him if he did not tell the truth. At that
point, accused-appellant started crying and told the mayor that he killed the victim by strangling her. Accused-appellant
claimed that he was under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services
of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty.
Leyva from his house and took him to the police station about 11:00 o'clock that evening. 9

Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving at the police station, he asked
accused-appellant if he wanted his services as counsel in the investigation. After accused-appellant assented, Atty. Leyva
testified that he "sort of discouraged" the former from making statements as anything he said could be used against him.
But, as accused-appellant was willing to be investigated, Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the
investigator, informed accused-appellant of his constitutional rights to remain silent and to be assisted by counsel and
warned him that any answer he gave could and might be used against him in a court of law. PO2 Garcia asked questions
from accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was taken, Atty. Leyva
and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication
that accused-appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed
to killing the victim by strangling her to death, but denied having molested her. 10

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from accused-
appellant in his office for laboratory examination to determine his blood type. Likewise, the basketball shorts and shirt
worn by accused-appellant on the day the victim was missing and the victim's clothing were turned over to the Forensic
Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite police for the purpose of determining the presence
of human blood and its groups. 11

The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to Group "O". The
following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches "Grizzlies" in front and "SAMARTINO"
at the back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small "Hello Kitty" T-shirt with reddish
brown stains; (4) one (1) "cut" pink short pants with reddish brown stains; (5) one (1) "cut" dirty white small panty with
reddish brown stains, were all positive for the presence of human blood showing the reactions of Group "A". 12

Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accused-appellant during
which the latter admitted that he had raped and later killed the victim by strangulation and stated that he was willing to
accept the punishment that would be meted out on him because of the grievous offense he had committed. Mr. Buan
observed that accused-appellant was remorseful and was crying when he made the confession in the presence of SPO1
Amoranto at the NBI laboratory. 13

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13, 1999 in Cavite
City, accused-appellant had with him a handwritten confession which he had executed inside his cell at the Municipal Jail
of Rosario. In his confession, accused-appellant admitted not only that he killed the victim but that he had before that
raped her. Accused-appellant said he laid down the victim on a grassy area near the dike. He claimed that she did not
resist when he removed her undergarments but that when he tried to insert his penis into the victim's vagina, she
struggled and resisted. Accused-appellant said he panicked and killed the child. He then dumped her body in the shallow
river near the "compuerta" and went home. 14

Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon of July 13, 1999, while she was in
their office in Cavite City, Prosecutor Itoc came together with accused-appellant and some policemen. Prosecutor Itoc
asked Atty. Agbunag to assist accused-appellant about his confession. Atty. Agbunag read the document, informed
accused-appellant of his constitutional rights, and warned him that the document could be used against him and that he
could be convicted of the case against him, but, according to her, accused-appellant said that he had freely and
voluntarily executed the document because he was bothered by his conscience. Accused-appellant, assisted by Atty.
Agbunag, then affixed his signature to the document and swore to it before Prosecutor Itoc. 15

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took buccal swabs
and hair samples from accused-appellant, as well as buccal swabs and hair samples from the parents of the victim,
namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of the NBI for
examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by Dr. Vertido. She
testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy contained the DNA profiles of
accused-appellant and the victim. 16

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo. Their
testimonies show that at about 1:00 o'clock in the afternoon of July 10, 1999, accused-appellant, Aimee, and their sister
Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to ask accused-
appellant to draw her school project. After making the request, Daisy left. 17 Accused-appellant did not immediately make
the drawing because he was watching television. Accused-appellant said that he finished the drawing at about 3:00
o'clock in the afternoon and gave it to the victim's aunt, Glory. He then returned home to watch television again. He
claimed he did not go out of the house until 7:00 o'clock in the evening when he saw Ma. Nida, who was looking for her
daughter. Accused-appellant said he told her that he had not seen Daisy. After that, accused-appellant said he went to
the "pilapil" and talked with some friends, and, at about 8:00 o'clock that evening, he went home.

At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his house and took him
to the barangay hall, where he was asked about the disappearance of Daisy. He claimed that he did not know anything
about it. Accused-appellant was allowed to go home, but, at 11:00 o'clock that morning, policemen came and invited him
to the police headquarters for questioning. His mother went with him to the police station. There, accused-appellant was
asked whether he had something to do with the rape and killing of Daisy. He denied knowledge of the crime.

At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his house to get the basketball shorts and
shirt he was wearing the day before, which were placed together with other dirty clothes at the back of their house.
According to accused-appellant, the police forced him to admit that he had raped and killed Daisy and that he admitted
having committed the crime to stop them from beating him up. Accused-appellant claimed the police even burned his
penis with a lighted cigarette and pricked it with a needle.
Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the investigation room
of the police station and told him that they would help him if he told the truth. Atty. Leyva asked him whether he wanted
him to be his counsel, and accused-appellant said he answered in the affirmative. He said Atty. Leyva informed him of his
constitutional rights. Accused-appellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the
commission of the crime, this was because the police had maltreated him. Accused-appellant said he did not tell the
mayor or Atty. Leyva that he had been tortured because the policemen were around and he was afraid of them. It appears
that the family of accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by
residents of their barangay. 18 According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when he
gave his confession to the police and signed the same. Accused-appellant claims that although Exhibit "N" was in his own
handwriting, he merely copied the contents thereof from a pattern given to him by the police. 19

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense charged. The
dispositive portion of its decision reads:

"WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo  y Samartino
GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the Information, accordingly hereby
sentences him to the supreme penalty of DEATH. The accused is directed to indemnify the heirs of the victim in the
amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages.

"SO ORDERED." 20

Hence this appeal. Accused-appellant contends that

"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE
DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL
CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.

"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE WRITTEN
EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS
OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING HIS
CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL ASSISTANCE."

We find accused-appellant's contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial evidence is
presented by the prosecution to prove beyond reasonable doubt that the accused committed the crime.  21 In rape with
homicide, the evidence against an accused is more often than not circumstantial. This is because the nature of the crime,
where only the victim and the rapist would have been present at the time of its commission, makes the prosecution of the
offense particularly difficult since the victim could no longer testify against the perpetrator. Resort to circumstantial
evidence is inevitable and to demand direct evidence proving the modality of the offense and the identity of the
perpetrator is unreasonable. 22

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain a 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 circumstances is such as to produce conviction beyond reasonable doubt." 23

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of accused-appellant:

1. The victim went to Aimee Vallejo's house, where accused-appellant was residing, at 1:00 o'clock in the afternoon of
July 10, 1999, for tutoring.
2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went together to the latter's house to get a book
from which the former could copy Daisy's school project. After getting the book, they proceeded to accused-appellant's
residence.

3. From accused-appellant's house, Daisy then went to the house of Jessiemin Mataverde where she watched television.
Accused-appellant thereafter arrived and whispered something to Daisy, and the latter went with him towards
the "compuerta."

4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-appellant coming out of
the "compuerta," with his clothes, basketball shorts, and t-shirt wet, although his face and hair were not. According to
these witnesses, he looked pale, uneasy, and troubled (balisa). He kept looking around and did not even greet them as
was his custom to do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite) was docked by the
seashore.

6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw accused-appellant buying a Marlboro
cigarette from a store. Jessiemen also noticed that accused-appellant's clothes were wet but not his face nor his hair.

7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by accused-appellant that
Daisy had gone to her classmate Rosario's house. The information proved to be false.

8. Daisy's body was found tied to an aroma tree at the part of the river near the "compuerta."

9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused by the thorns of an
aroma tree.

10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on accused-appellant's
clothes and on Daisy's clothes were found positive of human blood type "A."

11. Accused-appellant has blood type "O."

12. The vaginal swabs from Daisy's body contained her DNA profile as well as that of accused-appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been that of the victim
as the victim's blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both accused-
appellant's and the victim's clothing yielded bloodstains of the same blood type "A". 24 Even if there was no direct
determination as to what blood type the victim had, it can reasonably be inferred that the victim was blood type "A" since
she sustained contused abrasions all over her body which would necessarily produce the bloodstains on her
clothing. 25 That it was the victim's blood which predominantly registered in the examination was explained by Mr. Buan,
thus: 26

"ATTY. ESPIRITU

Q: But you will agree with me that more probably than not, if a crime is being committed, and it results in a bloody death, it
is very possible that the blood of the victim and the blood of the assailant might mix in that particular item like the t-shirt,
shorts or pants?

A: It is possible when there is a huge amount of blood coming from the victim and the suspect, Sir. It is possible. It will
mix. Whichever is the dominant blood in it, it will be the one which will register. For example, if there is more blood coming
from the victim, that blood will be the one to register, on occasions when the two blood mix.

Q: But in these specimens number 1 to 5, it is very clear now that only type A and no type O blood was found?

A: Yes, sir."
Accused-appellant also questions the validity of the method by which his bloodstained clothes were recovered. According
to accused-appellant, the policemen questioned him as to the clothes he wore the day before. Thereafter, they took him to
his house and accused-appellant accompanied them to the back of the house where dirty clothes were kept. 27 There is
no showing, however, that accused-appellant was coerced or forced into producing the garments. Indeed, that the
accused-appellant voluntarily brought out the clothes sought by the police becomes more convincing when considered
together with his confessions. A consented warrantless search is an exception to the proscription in Section 2 of Article III
of the Constitution. As we have held, the consent of the owner of the house to the search effectively removes any badge
of illegality. 28

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-appellant.
He argues that the prosecution failed to show that all the samples submitted for DNA testing were not contaminated,
considering that these specimens were already soaked in smirchy waters before they were submitted to the laboratory.

DNA is an organic substance found in a person's cells which contains his or her genetic code. Except for identical twins,
each person's DNA profile is distinct and unique. 29

When a crime is committed, material is collected from the scene of the crime or from the victim's body for the suspect's
DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the
suspect and the victim. 30

The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference
sample. 31 The samples collected are subjected to various chemical processes to establish their profile. 32 The test may
yield three possible results:

1) The samples are different and therefore must have originated from different sources (exclusion). This conclusion is
absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types
(inconclusive). This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of
the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more
conclusive result; or

3) The samples are similar, and could have originated from the same source (inclusion).  33 In such a case, the samples
are found to be similar, the analyst proceeds to determine the statistical significance of the similarity. 34

In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following
data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting
the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the smears taken from
the victim as well as the strands of hair and nails taken from her tested negative for the presence of human
DNA, 35 because, as Ms. Viloria-Magsipoc explained:

"PROSECUTOR LU:

Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim and of the accused gave
negative results for the presence of human DNA. Why is it so? What is the reason for this when there are still bloodstains
on the clothing?

A: After this Honorable Court issued an Order for DNA analysis, serological methods were already conducted on the said
specimens. And upon inquiry from Mr. Buan and as far as he also knew of this case, and we also interviewed the mother
who came over to the laboratory one time on how was the state of the specimens when they were found out.  We found
that these specimens were soaked in smirchy water before they were submitted to the laboratory. The state of the
specimens prior to the DNA analysis could have hampered the preservation of any DNA that could have been there
before. So when serological methods were done on these specimens, Mr. Byron could have taken such portion or stains
that were only amenable for serological method and were not enough for DNA analysis already. So negative results were
found on the clothings that were submitted which were specimens no. 1 to 5 in my report, Sir.

Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also proved negative for human
DNA, why is it so?

A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide was very, very dry and
could have chipped off. I already informed Dr. Vertido about it and he confirmed the state of the specimen. And I told him
that may be it would be the swab that could help us in this case, Sir. And so upon examination, the smears geared
negative results and the swabs gave positive results, Sir.

Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show negative results for DNA?

A: The hair samples were cut hair. This means that the hair did not contain any root. So any hair that is above the skin or
the epidermis of one's skin would give negative results as the hair shaft is negative for DNA. And then the nails did not
contain any subcutaneous cells that would be amenable for DNA analysis also, Sir.

Q: So it's the inadequacy of the specimens that were the reason for this negative result, not the inadequacy of the
examination or the instruments used?

A: Yes, Sir."

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the samples had been
contaminated, which accounted for the negative results of their examination. But the vaginal swabs taken from the victim
yielded positive for the presence of human DNA. Upon analysis by the experts, they showed the DNA profile of accused-
appellant: 36

"PROSECUTOR LU:

Q: So based on your findings, can we say conclusively that the DNA profile of the accused in this case was found in the
vaginal swabs taken from the victim?

A: Yes, Sir.

Q: That is very definite and conclusive?

A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of
the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only
consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative
force, may surpass direct evidence in its effect upon the court. 37 This is how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written confessions presented as evidence against him.
He alleges that the oral confessions were inadmissible in evidence for being hearsay, while the extrajudicial confessions
were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:

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

"(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

"(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him."
There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coerced confessions,
the product of third degree methods such as torture, force, violence, threat, and intimidation, which are dealt with in
paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit of Miranda warnings, which are the
subject of paragraph 1 of the same section. 38

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI Forensic
Biologist should be deemed inadmissible for being violative of his constitutional rights as these were made by one already
under custodial investigation to persons in authority without the presence of counsel. With respect to the oral confessions,
Atty. Leyva testified: 39

"PROSECUTOR LU:

Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him?

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as a lawyer during that investigation?

A: I did, as a matter of fact, I asked him whether he would like me to represent him in that investigation, Sir.

Q: And what was his answer?

A: He said "yes".

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against him, so it's a sort of discouraging him
from making any statement to the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows: 40

"Q: You stated that you personally read this recital of the constitutional rights of the accused?

A: Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not inform the accused that the statement that he will
be giving might be used against him in a court of justice?

A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY. ESPIRITU

The only thing that is stated here is that "Maaaring gamitin pabor o laban sa iyo."

COURT

Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the truth."

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,  41 it is also confirmed by
accused-appellant who testified as follows: 42

"ATTY. ESPIRITU:
Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are supposed to have
executed and signed?

A: Yes, Sir.

Q: What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I know about this case, Sir.

Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement?

A: Yes, Sir.

Q: And did he tell you that what you would be giving is an extra-judicial confession?

A: Yes, Sir."

Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the statements he was to
make as well as the written confessions he was to execute. Neither can he question the qualifications of Atty. Lupo Leyva
who acted as his counsel during the investigation. To be an effective counsel, a lawyer need not challenge all the
questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying
anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as
would lead the accused to admit something false. Indeed, counsel should not prevent an accused from freely and
voluntarily telling the truth. 43

Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva before the
latter acted as his defense counsel. 44 And counsel who is provided by the investigators is deemed engaged by the
accused where the latter never raised any objection against the former's appointment during the course of the
investigation but, on the contrary, thereafter subscribed to the veracity of his statement before the swearing
officer. 45 Contrary to the assertions of accused-appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite
but only a legal adviser of Mayor Renato Abutan. 46

Accused-appellant contends that the rulings in People vs. Andan 47 and People vs. Mantung 48 do not apply to this case.
We disagree. The facts of these cases and that of the case at bar are similar. In all these cases, the accused made
extrajudicial confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial confessions were
held admissible in evidence, being the spontaneous, free, and voluntary admissions of the guilt of the accused. We note
further that the testimony of Mayor Abutan was never objected to by the defense.

Indeed, the mayor's questions to accused-appellant were not in the nature of an interrogation, but rather an act of
benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testified: 49

"PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell you?

A: At first he said that he did not do that. That was the first thing he told me. Then I told him that I will not be able to help
him if he will not tell me the truth.

Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what exactly did he tell you about the incident?

A: I asked him, "Were you under the influence of drugs at that time"?

Q: What else did he tell you?

A: I told him, "What reason pushed you to do that thing?"

xxx xxx xxx

Q: Please tell us in Tagalog, the exact words that the accused used in telling you what happened.

A: He told me that he saw the child as if she was headless at that time. That is why he strangled the child, Sir.  ("Ang sabi
niya po sa 'kin, nakita niya raw 'yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya.")

xxx xxx xxx

COURT:

Q: When you told the accused that you will help him, what kind of help were you thinking at that time?

A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor."

In People vs. Mantung, 50 this Court said:

"Never was it raised during the trial that Mantung's admission during the press conference was coerced or made under
duress. As the records show, accused-appellant voluntarily made the statements in response to Mayor Marquez' question
as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even proceeded to explain
that he killed the victims because they made him eat pork. These circumstances hardly indicate that Mantung felt
compelled to own up to the crime. Besides, he could have chosen to remain silent or to do deny altogether any
participation in the robbery and killings but he did not; thus accused-appellant sealed his own fate. As held in  People v.
Montiero, a confession constitutes evidence of high order since it is supported by the strong presumption that no person
of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience."

And in People vs. Andan, it was explained:

"Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous
statement, not elicited through questioning by the authorities, by given in an ordinary manner whereby appellant orally
admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or
confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would
lead the accused to admit something false, not prevent him from freely and voluntarily telling the truth." 51

For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron Buan is
admissible. Accused-appellant would have this Court exclude this confession on the ground that it was uncounselled and
that Mr. Buan, who initiated the conversation with accused-appellant, was part of the NBI. The issue concerning the
sufficiency of the assistance given by Atty. Leyva has already been discussed. On the other hand, the questions put by
Mr. Buan to accused-appellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan
testified: 52

"PROSECUTOR LU:

Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination, we talk to them for me to add knowledge on
the case, Sir.

Q: What did you talk about during your conversation?

A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.

Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?

A: I remember that while asking him, he was crying as if feeling remorse on the killing, Sir.

xxx xxx xxx

Q: And it was you who initiated the conversation?

A: Yes, Sir.

Q: Do you usually do that?

A: Yes, Sir. We usually do that.

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any information either on the victim or
from the suspect will help me personally. It's not an SOP, Sir."

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is, therefore,
admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the ground that these
were extracted from him by means of torture, beatings, and threats to his life. The bare assertions of maltreatment by the
police authorities in extracting confessions from the accused are not sufficient. The standing rule is that "where the
defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain
to the officer who administered their oaths; where they did not institute any criminal or administrative action against their
alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they
did not have themselves examined by a reputable physician to buttress their claim," all these will be considered as
indicating voluntariness. 53 Indeed, extrajudicial confessions are presumed to be voluntary, and, in the absence of
conclusive evidence showing that the declarant's consent in executing the same has been vitiated, the confession will be
sustained. 54

Accused-appellant's claim that he was tortured and subjected to beatings by policemen in order to extract the said
confession from him is unsupported by any proof: 55

"ATTY. ESPIRITU:

Q: Did they further interrogate you?

A: Yes, sir.

Q: What else did they ask you?

A: They were asking me the project, Sir.

Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?

A: The investigator, Sir.

Q: How many were they inside that room?

A: Five, Sir.

Q: They are all policemen?

A: Yes, Sir.
xxx xxx xxx

Q: Until what time did they keep you inside that room?

A: Up to 11:00 in the evening, Sir.

Q: Between 10:30 in the morning up to 11:00 o'clock in the evening, what did you do there?

A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.

Q: The 5 of them?

A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning?

A: Yes, Sir.

Q: In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.

Q: Who is this Mercado?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.

Q: Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time, Sir.

Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.

Q: What?

A: They boxed me, Sir.

Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette butt?

A: It was painful, Sir.

Q: In what part of your body were you pricked by a needle?

A: At my private part, Sir."

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in the municipal hall
from 10:00 o'clock in the morning until 11:00 o'clock that night of July 10, 1999, during which time he was boxed, tortured,
and hit with a piece of wood by policemen to make him admit to the crime. However, accused-appellant was physically
examined by Dr. Antonio Vertido at about 9:00 o'clock in the evening of the same day. While the results show that
accused-appellant did sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified: 56

"PROSECUTOR LU:

Q: What were your findings when you conducted the physical examination of the suspect?

A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I also found hematoma on the left
ring finger, posterior aspect and at the same time, a laceration on the left ring finger.

xxx xxx xxx

Q: In your findings, it appears that the accused in this case suffered certain physical injuries on his person like this abrasion on the
thigh, right anterior lateral aspect lower third of the knee, what could have caused this injury?

A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir. Hematoma are usually caused by a blunt
instrument or object and laceration is the forcible contact of the skin from that blunt object.

Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect and laceration left ring finger posterior
aspect, what could have caused those injuries on the accused?

A: My opinion to these hematoma and laceration found on the said left ring finger was that it was caused by a bite, Sir."

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found more than mere
abrasions and hematoma on his left finger. Dr. Vertido's findings are more consistent with the theory that accused-
appellant sustained physical injuries as a result of the struggle made by the victim during the commission of the rape in
the "compuerta."

At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the circumstantial
evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt. The prosecution witnesses
presented a mosaic of circumstances showing accused-appellant's guilt. Their testimonies rule out the possibility that the
crime was the handiwork of some other evil mind. These witnesses have not been shown to have been motivated by ill
will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to corroborate his claim. The
defense presented only accused-appellant's sister, Aimee Vallejo, to corroborate his story. We have held time and again
that alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons.  57 It is
well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult to disprove. For this reason, this
Court looks with caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives or
friends of the accused. 58

Article 266-B of the Revised Penal Code provides that "When by reason or on the occasion of the rape, homicide is
committed, the penalty shall be death." 59 Therefore, no other penalty can be imposed on accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88, Cavite City,
finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with
Homicide and sentencing him to the supreme penalty of DEATH and directing him to indemnify the heirs of the victim in
the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this
decision, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of
the pardoning power. AcISTE

SO ORDERED.

FIRST DIVISION
[G.R. No. 133025. February 17, 2000.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RADEL GALLARDE, accused-appellant.

DECISION

DAVIDE, JR., C.J p:

This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan, Branch 51, finding accused-
appellant Radel Gallarde 1 (hereafter GALLARDE) guilty beyond reasonable doubt of the crime of murder in Criminal
Case No. T-1978, and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of Editha Talan
(hereafter EDITHA) the amount of P70,000 as actual damages. 2

On 24 June 1997, GALLARDE was charged with the special complex crime of rape with homicide in an information whose
accusatory portion reads as follows: cdtai

That on or about the 6th day of May 1997, in the evening, amidst the field located at Brgy. Trenchera, [M]unicipality of
Tayug, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have
sexual intercourse with one EDITHA TALAN, a minor, 10 years of age, against her will and consent, and thereafter, with
intent to kill, cover the nose and mouth of the said minor resulting to her death and then bury her in the field, to the
damage and prejudice of the heirs of said EDITHA TALAN. 3

During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel, entered a plea of not
guilty. 4 Trial of the case immediately ensued as the defense waived the holding of the pre-trial conference. cdasia

The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy Clemente, Felicisimo Mendoza,
Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto Tebangin. The relevant and material facts
established by their testimonies are faithfully summarized in the Appellee's Brief as follows:

In the evening of May 26 1997, at the house of spouses Eduardo and Elena Talan in Brgy. Trenchera, Tayug,
Pangasinan, their neighbors converged. Among them were appellant Radel Gallarde, Francisco, Renato, Edwin, all
surnamed Fernandez, Romel Hernandez, Jaime Cabinta, Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon.
Idling by was Editha, 10 year old daughter of spouses Talan. A fluorescent lamp illuminated them as they partook beer
(TSN dated October 13, 1997, pp. 3-4).

After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. As they partook of the meal,
appellant suddenly left. Jaime, too, stepped out of the kitchen to urinate. Outside the house, he chanced upon appellant
and Editha talking to each other. Jaime whistled at appellant but instead of minding him, the latter sprinted towards the
road leading to his house (Id., pp. 4-6). dctai

Thereafter, Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and asked where she was
going. Editha answered that she would look for appellant. Soon Editha left enroute to where appellant fled (Id., pp. 7-8).

By 10:00 o'clock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin and Rose regrouped at
Renato's place where they talked and relaxed. Moments later, Roger arrived and informed them that Editha was missing.
Roger asked the group to help look for her (Id., p. 10).

Elena Talan informed his uncle, Barangay Ex-kagawad Mario Fernandez, about her daughter's disappearance. The latter,
together with his son Edwin, wife Virginia and nephew Freddie Cortez wasted no time in joining their neighbors search the
houses, dikes and fields to look for the missing child. The searchers used a lighted rubber tire (TSN dated Sept. 24, 1997,
pp. 8-10 and 24).

When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers went back to the house
of appellant. About 7 meters away from appellant's house, one of the searchers, Alfredo Cortez, found Editha's left foot
slipper (TSN dated October 22, 1997, pp. 4-6). Suddenly, Edwin Fernandez announced: " Tata, Radel is here!" pointing to
the toilet about 6 meters away from appellant's house. The searchers found appellant squatting with his short pants. His
hands and knees were covered with soil. When confronted by ex-kagawad Hernandez why he was there, appellant
answered he was relieving himself (Id., pp. 11-16). cda

Asked where Editha was, appellant replied: "I do not know, I did not do anything to her." When told — "according to
Jimmy, you were with Editha." appellant responded "I let her go and brought her back to the dike and let her go home." To
the next question, "where did you come from since a while ago you were not yet in this toilet?" appellant answered "I was
with Kiko, I was asleep in their house. One of the searchers Mario Bado, got angry and countered that appellant's
statement was impossible because Kiko was with him drinking (Id., pp. 16-20).

After the confrontation at the toilet, Ex-kagawad Fernandez brought appellant to Brgy. Captain Felicisimo Mendoza,
informing the latter that appellant was the last person seen talking with the missing child. Fernandez then rejoined the
searchers (Id., pp. 21-22). Cdpr

Back in the field, Virginia Fernandez tripped on a wet ground. As she reached for her slipper, she saw Editha's right foot
slipper (the other one was earlier found near the house of appellant) (Id., pp. 23-24).

Around 3 meters farther from Editha's right foot slipper; another slipper was found. It was old, 8 to 9 inches in length and
appellant was seen wearing it in the morning of that day (TSN dated Sept. 25, 1997, p. 25).

The searchers, thereafter, noticed disheveled grasses. Along the way, they saw a wide hole among the disheveled grass.
Ex-kagawad Fernandez accidentally dropped the lighted rubber tire and as his nephew Freddie picked it up, the latter
exclaimed: "Uncle, look at this loose soil!" Ex-kagawad Fernandez forthwith scratched some earth aside and then Editha's
hand pitted out. The Fernandez screamed in terror (Id., pp. 5-6).

Meantime, Barangay Captain Mendoza heard shouts saying: "She is here, she is now here already dead!" Mindful of
appellant's safety, Brgy. Captain Mendoza decided to bring appellant to the municipal building. On their way though, they
met policemen on board a vehicle. He flagged them down and turned over the person of appellant, saying: "Here is the
suspect in the disappearance of the little girl. Since you are already here, I am giving him to you" (TSN dated Oct. 21,
1997, pp. 4-5). cdrep

The policemen together with appellant proceeded to where the people found Editha. One of the policemen shoved more
soil aside. The lifeless Editha was completely naked when she was recovered. (Id., pp. 9-10).

The cause of Editha's death as revealed in the post-mortem examination showed "suffocation of the lungs as a result from
powerful covering of the nose and mouth, associated with laceration of the vagina and raptured hymen (Exh. "T", TSN
dated Oct. 23, 1997, pp. 22-23)." 5

On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and the alibi that he was at
home with his mother and brothers at the time the crime occurred. He declared that he is 18 years old, single, a former
construction worker. He knew EDITHA, a neighbor whom he considered as a sister because she used to come to his
house. They never had a quarrel or misunderstanding. He neither raped nor killed Editha. 6

On cross-examination by the prosecutor and to questions propounded by the court, GALLARDE admitted that he saw
Editha on the night of 6 May 1997 in her parent's house, particularly in the kitchen. He was there because he joined a
group drinking Colt 45 beer, as he was called by Rudio Fernandez. He drank and had dinner in the kitchen. After dinner
he returned to the drinking place and eventually went home because he was then a little drunk. He knows Kgd. Mario
Fernandez, but after he left the Talan residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez saw him inside
his (Gallarde's) toilet on the night of May 6; thereafter Fernandez took him to the barangay captain and later he was
turned over to the PNP at Camp Narciso Ramos. The police informed him that he was a suspect in the rape and killing of
Editha Talan, and he told them that he did not commit the crime. At the Talan residence he was wearing short pants and
rubber slippers. Fernandez asked him at the police headquarters to pull down his shorts and he complied. He was then
wearing briefs with a hemline that was a little loose. He was informed that a cadaver was recovered near his house. When
he was asked questions while in police custody, he was not represented by any lawyer. prcd

GALLARDE further declared on cross-examination and on questions by the court that he considered Editha Talan as a
sister and her parents also treated him in a friendly manner. When he came to know that Editha's parents suspected him
of the crime, he was still on friendly terms with them. However, he did not go to them to tell them he was innocent
because they brandished a bolo in anger.

Finally, he testified that in the evening of May 6 he came to know that Editha died. She was still alive when he was
drinking at the back of the Talan house and left for home. From the time he arrived, he never left again that night, and his
mother and brothers knew it for a fact. 7

On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the crime of murder only, not of the
complex crime of rape with homicide because of the lack of proof of carnal knowledge. It observed:

Exh. "T" and Dr. Tebangin's testimony thereon show that the late Editha Talan sustained slit wounds inflicted as a means
of suffocating her to death, a laceration of the lower portion of her vagina, and a ruptured hymen. What allegedly oozed
from her vagina was blood, coupled with dirt. Had there been observed the presence of even just a drop of seminal fluid in
or around her vagina, the Court would readily conclude that the laceration and rupture resulted from phallic intrusion.
Without such observation, however, "carnal knowledge" as element of rape would be an open question.

The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating or aggravating
circumstance pursuant to Article 15 of the Revised Penal Code because GALLARDE's alleged inebriation on the night of 6
May 1997, was not satisfactorily proven.

As to the civil aspect of the case, the trial court considered the stipulation of the parties on 27 October 1997 fixing a
liquidated amount of P70,000 as actual damages, and leaving the matter of moral damages to the discretion of the court.
The trial court was not inclined to award moral damages because the "evidence before it tends to disclose that on the
night of 6 May 1997, before she died, Editha was a much-neglected child."

Accordingly, in its decision 8 of 12 February 1998, the trial court decreed:

WHEREFORE, his guilt having been established beyond a reasonable doubt, the Court hereby convicts the accused
RADEL GALLARDE Y HERMOSA of the crime of MURDER, and sentences him to suffer the penalty of reclusion
perpetua and to indemnify the heirs of the late Editha Talan in the negotiated sum of P70,000.00. 9

His motion for reconsideration, 10 having been denied by the trial court in its Resolution 11 of 28 February 1998,
GALLARDE seasonably appealed to us. cdphil

We accepted the appeal on 9 September 1998.

In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the trial court committed the following errors:

1. In convicting [him] of the crime of murder in an information for rape with homicide.

2. In concluding that the prosecution has proven beyond reasonable doubt that [he] was responsible for the death of
Editha Talan.

3. In not acquitting [him] on the ground of notches of proof beyond reasonable doubt. 12

We sustain GALLARDE's contention that the trial court erred in convicting him of murder in an information charging him of
rape with homicide. A reading of the accusatory portion of the information shows that there was no allegation of any
qualifying circumstance. Although it is true that the term "homicide" as used in special complex crime of rape with
homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or
on the occasion of rape, 13 it is settled in this jurisdiction that where a complex crime is charged and the evidence fails to
support the charge as to one of the component offense, the accused can be convicted of the other. 14 In rape with
homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying
circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be
informed of the nature of the offense with which he is charged. 15 It is fundamental that every element of the offense must
be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in
an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent
knowledge of the facts that constitute the offense. 16
In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of
murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or
information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an
accused cannot be convicted of any offense, unless it is charged in the complaint or information for which he is tried, or is
necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is
charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or
information under which he is tried would be an unauthorized denial of that right. 17

Nevertheless, we agree with the trial court that the evidence for the prosecution, although circumstantial, was sufficient to
establish beyond reasonable doubt the guilt of GALLARDE for the death of EDITHA. cdasia

Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and
finding of guilt. 18 The prosecution is not always tasked to present direct evidence to sustain a judgment of conviction; the
absence of direct evidence does not necessarily absolve an accused from any criminal liability.  19 Even in the absence of
direct evidence, conviction can be had on the basis of circumstantial evidence, provided that the established
circumstances constitute an unbroken chain which leads one to one fair and reasonable conclusion which points to the
accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other
hypothesis except that of guilty. 20

The rules on evidence and precedents sustain the conviction of an accused through circumstantial evidence, as long as
the following requisites are present: (1) there must be more than one circumstance; (2) the inference must be based on
proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the
accused. 21

The importance of circumstantial evidence is more apparent in the prosecution of cases of rape with homicide. The nature
of the crime of rape, where it is usually only the victim and the rapist who are present at the scene of the crime, makes
prosecutions for the complex crime of rape with homicide particularly difficult since the victim can no longer testify against
the perpetrator of the crime. In these cases pieces of the evidence against the accused are usually circumstantial. 22

The circumstantial evidence in the case at bar, when analyzed and taken together, leads to no other conclusion than that
GALLARDE, and no other else, killed EDITHA and that he is guilty therefor. We quote with approval the lower court's
enumeration of the circumstantial evidence in this case: cdrep

1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she used to frequent his place.

2. Both were at the Talan residence on the night of May 6, 1997 while neighbors indulged themselves in beer.

3. Among said neighbors Cabinta saw them hand in hand by the toilet situated five (5) meters east of the Talan kitchen.

4. After Cabinta whistled he saw Gallarde run home towards north after letting go of Editha's hands. Neighbor Clemente
also noticed that Gallarde disappeared, and that Editha returned to the kitchen.

5. Cabinta followed Editha back to the kitchen, and saw her holding a kerosene lamp. She told him that she was going to
look for "Dalpac," and off she went in the same direction Gallarde took.

6. Gallarde wore short pants and rubber slippers at the drinking place. Subsequently he was seen wearing shorts in his
own toilet.

7. At past 10:00 in the evening during an intensive search for the then missing Editha, her lifeless body was found in a
shallow grave situated some distance behind Gallarde's residence.

8. Before Editha's body was discovered, a searcher found a girl's slipper (Exh. "B"), 5-6 inches long, among thickets
seven meters away from Gallarde's house.

9. Another searcher saw a second slipper (Exh. "B-1"), of the same color and size as the first one. Both slippers were
Editha's, the searchers recalled.
10. A third rubber slipper (Exh. "C') was thereafter found in the field near Exh. "B-1." It was an old slipper, 8-9 inches long
and with a hole at the rear end.

11. Soil stuck to each one of the three slippers.

12. Gallarde was not at home when searchers went to look for him there, after Cabinta told them that Editha was last seen
with Gallarde.

13. When Gallarde was discovered squatting in the dark toilet behind his house and beside the thickets, his shorts were
up and on. His hands and knees were soiled.

14. At the toilet he was asked the innocent question of where Editha was and he answered revealingly, thus: "I did not do
anything to her" and "I let her go and brought her back to the dike and let her go home."

15. When asked where he had been, as the toilet was first seen empty, Gallarde said he was with Kiko and he slept at the
latter's house, which answer Mario Bado promptly refuted saying, "Vulva of your mother . . . Kiko was with me drinking."
Bado and Kiko were not at the place of the Talans that night.

16. Yanked out of the dark toilet near his own house, Gallarde joined Kgd. Mario Fernandez sans protest.

17. Dr. Tebangin found on Editha's cheeks two slit wounds, each being an inch away from her nostrils. Both wounds were
fresh and reddish.

 From the lower portion of Editha's vagina blood oozed, accompanied by dirt.

 Her hymen was ruptured and was still bleeding.

 The medico-legal concluded that there must have been a forceful covering of Editha's nose and mouth because of the
presence of the slit wounds on both sides of her face, and that in 30 seconds unconsciousness and weakening resulted,
with the vaginal injuries contributing to her death. 23

As to the crime of rape, there is much to be desired with respect to the prosecution's evidence therefor, but not for the
reason adduced by the trial court, namely, the absence of spermatozoa in EDITHA's private part and thereabout. It is well
settled that the absence of spermatozoa in or around the vagina does not negate the commission of rape. 24 Our doubt
on the commission of rape is based on the fact that there is at all no convincing proof that the laceration of the vagina and
the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ. Our meticulous reading of
the testimony of Dr. Tebangin disclosed that he was never asked if the laceration and the rupture could have been caused
by the penis of a human being. Needless to state, these could have been caused by any object other than the penis of a
person. LLphil

We cannot sustain the contention of GALLARDE that he was not positively identified as the assailant since there was no
eyewitness to the actual commission of the crime. It does not follow that although nobody saw GALLARDE in the act of
killing EDITHA, nobody can be said to have positively identified him. Positive identification pertains essentially to proof of
identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identity a suspect or accused in a criminal case as the perpetrator of the crime as an
eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be
instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be
able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person
or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the
second type of positive identification, which forms part of circumstantial evidence, which, when taken together with other
pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused
is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly
positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an
eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively
identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime
is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. 25 If resort to circumstantial
evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go
free and the community would be denied proper protection. cdasia

As discussed above, the circumstantial evidence as established by the prosecution in this case and enumerated by the
trial court positively established the identity of GALLARDE, and no one else, as the person who killed EDITHA.

We cannot agree with the trial court's rejection of the photographs (Exhibits "I", "J" and "K") taken of GALLARDE
immediately after the incident on the ground that "the same were taken while [GALLARDE] was already under the mercy
of the police." The taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act,
is not a violation of his constitutional right against self-incrimination.

The constitutional right of an accused against self-incrimination 26 proscribes the use of physical or moral compulsion to
extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely
mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance
and guiding hand of counsel is not required. 27 The essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself through a testimonial act. 28 Hence, it has been held that a
woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; 29 and an
accused may be compelled to submit to physical examination and to have a substance taken from his body for medical
determination as to whether he was suffering from gonorrhea which was contracted by his victim; 30 to expel morphine
from his mouth; 31 to have the outline of his foot traced to determine its identity with bloody footprints; 32 and to be
photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing
things to be done. 33

There is also no merit in GALLARDE's argument that the failure of the prosecution to prove beyond reasonable doubt the
place and time of the commission of the crime is fatal and will justify his acquittal.

The place, time and date of the commission of the offense are not essential elements of the crime of rape with homicide.
The gravamen of the offense is the carnal knowledge of a woman and that on the occasion of or as a reason thereof, the
crime of homicide was committed. Conviction may be had on proof of the commission of the crime provided it appears
that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information, within
the period of the statute of limitation, and within the jurisdiction of the court. 34

The allegation of the place of commission of the crime in the complaint or information is sufficient if it can be understood
therefrom that the offense was committed or some of the essential ingredients thereof occurred at some place within the
jurisdiction of the court. 35 The rule merely requires that the information shows that the crime was committed within the
territorial jurisdiction of the court. The Court may even take judicial notice that said place is within its jurisdiction. 36

As to the time of the commission of the crime, the phrase "on or about" employed in the information does not require the
prosecution "to prove any precise date or time," but may prove any date or time which is not so remote as to surprise and
prejudice the defendant." 37

Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate time of the commission of the
crime, which was sometime between 9:00 p.m., when GALLARDE left the house of Talan followed by EDITHA, and 10:30
p.m., when the body of EDITHA was found. This was further corroborated by the examining physician who testified, on the
basis of the degree of rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997. 38

Likewise, GALLARDE's alibi and bare denial deserve no consideration. He did not present witnesses who could confirm
his presence in his house. No member of his family corroborated him on this matter. The defenses of denial and alibi, if
unsubstantiated by clear and convincing evidence, are negative and self-serving, deserve no weight in law, and cannot be
given evidentiary value over the testimony of credible witnesses who testify on affirmative matters. 39

Moreover, even assuming that GALLARDE's claim is true, his stay in his house did not preclude his physical presence at
the locus criminis or its immediate vicinity. The place where the body of EDITHA was found buried was a few meters from
his house, the place pointed to in the alibi and can be reached in a short while. For the defense of alibi to prosper, the
requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when
the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the
crime at the time of its commission. 40
Besides, no evil motive has been established against the witnesses for the prosecution that might prompt them to
incriminate the accused or falsely testify against him. It is settled that when there is no showing that the principal
witnesses for the prosecution were actuated by improper motive, the presumption is that the witnesses were not so
actuated and their testimonies are thus entitled to full faith and credit. 41 Testimonies of witnesses who have no motive or
reason to falsify or perjure their testimonies should be given credence. 42

With respect to GALLARDE's claim that he was arrested without warrant, suffice it to say that any objection, defect, or
irregularity attending an arrest must be made before the accused enters his plea. 43 The records show no objection was
ever interposed prior to arraignment and trial. 44 GALLARDE's assertion that he was denied due process by virtue of his
alleged illegal arrest is negated by his voluntary submission to the jurisdiction of the trial court, as manifested by the
voluntary and counsel-assisted plea he entered during arraignment and by his active participation in the trial
thereafter. 45 It is settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of
jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed
waived. 46 It is much too late in the day to complain about the warrantless arrest after a valid information had been filed
and the accused arraigned and trial commenced and completed and a judgment of conviction rendered against
him. 47 Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a
sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused. 48

Homicide, which we find to be the only crime committed by GALLARDE, is defined in Article 249 of the  Revised Penal
Code and is punished with reclusion temporal. In the absence of any modifying circumstance, it shall be imposed in its
medium period. GALLARDE is entitled to the benefits of the Indeterminate Sentence Law. Accordingly, he can be
sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of  prision
mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion
temporal as maximum. LexLib

As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages. This should be construed as
actual damages. However, as indemnity for death, the additional sum of P50,000, per current case law, should be
awarded.

WHEREFORE the assailed decision of the Regional Trial Court, Branch 51, Tayug, Pangasinan, in Criminal Case No. T-
1978 finding accused-appellant RADEL GALLARDE guilty of the crime of murder is hereby modified. As modified, RADEL
GALLARDE is hereby found guilty beyond reasonable doubt, as principal, of the crime of Homicide, defined under Article
249 of the Revised Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from ten (10) years of
the medium period of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period
of reclusion temporal as maximum, and to pay the heirs of the victim, Editha Talan, the sum of P70,000 as liquidated
actual damages and P50,000 as indemnity for the death of Editha Talan. LLphil

Costs against accused-appellant RADEL GALLARDE in both instances.

 FIRST DIVISION

[G.R. No. L-29144. October 30, 1970.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUSTAQUIO MODELO, alias "TAKIO," defendant-

appellant.

DECISION

DIZON, J p:

In the Court of First Instance of Zambales appellant Eustaquio Modelo was charged with having raped, on April 10, 1967,
Tarcela Morados, a minor a little over 13 years of age, daughter, by a former marriage, of his common-law wife, Josefa
Malay. After trial upon a plea of not guilty he was convicted as charged and sentenced to suffer the penalty of Reclusion
Perpetua, with the accessory penalties of the law, to indemnify the offended party in the amount of P5,000.00, to
acknowledge and support her offspring, and to pay the costs. Not satisfied with the decision Modelo appealed to this court
claiming that the trial court erred firstly, "in not finding that the presumption of innocence had not been overcome by the
uncorroborated and self-contradictory testimony of the complaining witness;" secondly, "in not finding from the testimony
of the complaining witness that the latter offered no resistance to the alleged intercourse," and lastly, "in ignoring and in
giving no weight whatsoever to the uncontradicted esculpatory * evidence for the defense."

Former Justice Roman Ozaeta, appellant's attorney de oficio, has submitted a forceful and vigorous brief in his behalf,
contending, on the basis of the careful and detailed summation of the evidence presented by both parties made therein,
that appellant should be acquitted.

We shall first take up appellant's contention that complainant's testimony is insufficient to overcome the presumption of
innocence in his favor.

Lauro Morados and Josefa Malay were husband and wife. Upon Lauro's death several years prior to the commission of
the crime subject of prosecution, he was survived by Josefa and five minor children, one of whom was Tarcela, born on
September 19, 1953. Sometime after the death of Lauro, Josefa became the common-law wife of appellant, also a
widower with two sons named Florendo and Orlando, at the time 13 and 12 years old, respectively. They all lived in a
house located in barrio San Fernando, Sta. Cruz, Zambales.

According to the testimony of the offended party, at about six o'clock in the morning of April 10, 1967 she was boiling
coffee and cooking rice in the kitchen of their house. Her mother had already left the house to look for someone who
would hire her to plant rice; her two half sisters, Virginia and Carmen, were sent by appellant to buy bread, while her half
brother Orlando was still fast asleep. While thus alone doing her chores, appellant came and suddenly held her by the
shoulders. Thereupon she screamed, but this notwithstanding appellant forcibly laid her down, and in spite "of the
struggle" she put up, he was able to remove her panty, then parted her legs and inserted his penis into her vagina. After
satisfying his lust, appellant warned her not to tell her mother anything about the incident for otherwise he would kill her.
Because she was afraid of him she answered: "Yes, Father." Then in the afternoon of the same day while Tarcela was
rocking to sleep her 1-1/2 year old half sister Dominga, appellant approached her and again forced her to lie down, and
once more succeeded in having sexual intercourse with her. In the month of June of the same year — the exact date of
which she could not remember — appellant again succeeded in abusing her for the third time.

Appellant bolsters his contention by claiming that the testimony of the offended party is not only uncorroborated but also
suffers from serious and substantial inconsistencies.

It is conceded that the offended party refrained from telling her mother about what appellant had done to her until about
the end of July 1967 when her mother noticed her pregnancy; that it was only after her mother had repeatedly asked her
who had caused her pregnancy that she revealed that it was the herein appellant. This, however, was due to the fact that
appellant had threatened her with death if she told her mother about what he had been done to her. Considering her
tender age at the time and the obvious moral influence that appellant exercised over her, this could be easily believed. As
a matter of fact, her own mother, Josefa Malay, must have been afraid of her common-law husband, because instead of
confronting him and telling him about Tarcela's revelation, she decided to file, as in fact she filed on August 18, 1967, the
corresponding complaint for rape against him with the Municipal Court of Sta. Cruz, Zambales. On the same day, Dr.
Salvador V. Fuñe, municipal health officer, subjected Tarcela to a physical examination and later setforth his findings in a
medical certificate as follows:

"Abdominal palpation:

The fundus uteri is one finger below the umbilicus, compatible with 5-6 months pregnancy. Small fetal parts are palpable
on the left flanks. A small rounded mass is appreciable on the hypogatrium. On ausculation, fetal heart beats were heard
on the right lower abdomen. Uterine soufle were also heard on both right iliac regions.

"Internal examination:

The vagina readily admits two fingers. The hymen is no longer appreciable. The cervix uteri is closed, hard and non-
painful. "These findings are compatible with 5-6 months pregnancy."

For his part, appellant denied having committed the crime imputed to him claiming that on April 10, 1967, Tarcela was not
living in his house but in that of Maxima Marcillana located in barrio San Fernando, Sta. Cruz, whom she had been
serving as a maid since March 19, 1967, and remained there until the month of May of the same year. He further testified
that on April 10, 1967, he left his house at 4:30 a.m., together with his barrio-mate, Jose Merin, with whom he walked to
barrio Tubotubo, of the same municipality, located approximately three kilometers far from his house, to work on the
construction of the house of one Leopoldo Montalla which had began in March of that year; that they arrived in barrio
Tubotubo at about six o'clock in the morning and, after resting for a while, started working until they stopped at five o'clock
that afternoon, after which he and Merin walked back home.

As stated heretofore, appellant claims that the testimony of the offended party not only stands uncorroborated but is
plagued with inconsistencies. After examining the record, we are left with the conviction that the alleged inconsistencies or
contradictions in the testimony of the offended party do not materially impair her credibility, bearing as they do on mere
details. In other words, we are of the opinion that the inconsistencies pointed out in appellant's brief are not sufficient to
render unbelievable the offended party's clear and positive testimony to the effect that appellant, the common-law
husband of her mother, early in the morning of April 10, 1967, held her by the shoulders, then forced her to lie down,
parted her legs, took off her panty and proceeded to rape her.

That the offended party's testimony is uncorroborated is of little moment. The crime of rape is, as a rule, committed
without anybody else being present — with the exception of the rapist and the victim. To say that because no witness
corroborated the testimony of the latter, the same should be deemed insufficient to prove the crime would make it
impossible to convict any person charged with such offense.

Moreover, it is clear from the evidence that Josefa Malay, mother of the offended party and appellant's common-law wife,
loved him enough to live with him as wife even without the benefit of marriage, and to bear him three daughters; that she,
her children with appellant and her own children with her deceased husband, depended upon him for their support. She
would not have consented that he be brought to court charged with the serious offense of rape if she was not convinced of
his guilt. Appellant, of course, claimed that Josefa did so because he had a quarrel with her about a small amount of
money he had entrusted to her care and which she spent, without his knowledge and consent. This is too flimsy to
convince anyone.

Appellant makes a final attempt to assail the credibility of the offended party by trying to prove that on April 10, 1967 she
was not living in his house but in that of Maxima Marcillana whom she had been serving as  maid (house help). We firmly
believe, however, that his testimony to this effect, corroborated by that of Rafael Ecaldre, cannot prevail over that of the
offended party and that of Maxima Marcillana, the relevant portions of whose testimony we reproduce here:

"Q Do you know the accused Eustaquio Modelo in this case?

A Yes, sir.

Q If he is in the courtroom, point to him?

A (Witness pointing to the accused.).

Q How about the complaining witness Tarcela Morados, do you know her?
A Yes, sir. . . ."

"FISCAL

Q Where is the residence of this Tarcela Morados, do you know?

A Yes, sir.

Q How far is the residence of Tarcela Morados from your house at San Fernando, Sta. Cruz, Zambales?

A Around one-half kilometer, sir. . . ."

"FISCAL

Q Now Eustaquio Modelo testified that since March up to May, 1967, Tarcela Morados was your housemaid and was staying and
sleeping at your house during that period, what can you say to that?

A That is not true, sir.

Q What is the truth? Has Tarcela Morados ever been your maid at any time?

A I never took her as my maid. . . ."

"CROSS-EXAMINATION:

Q Now, is it not a fact that the complaining witness Tarcela Morados used to come to your house?

A No, sir.

Q She has never been — she has never gone to your house, not even once?

A No, sir.

Q You have never employed a maid during all the time that you have a child?

A No, sir.

Q You are related to Tarcela Morados, is it not?

A No, sir.

Q But she is very close, her mother and Tarcela Morados are very close to you?

A Yes, sir.

Q Because you are a friend of her mother?

A Yes, sir.

Q And what is the name of her mother?

A Maria Miel.

Q The mother of Tarcela Morados?

A Josefa Malay.

Q And she requested you to testify in this case, Josefa Malay?

A Yes, sir.

Q And because she is your close friend, you agreed to testify?

A I am stating here in court that Tarcela never stayed in my house and that is the truth.
Q You have not answered my question, Mrs. Witness. My question is, because you are a close friend of Josefa Malay, you agreed to
testify in this case?

A Yes, sir.

Q And she requested you to testify that Tarcela Morados has never been your maid?

A She did not tell me that. . . ."

Upon the other hand, we find it hard to believe that appellant left his house on April 10, 1967 at 4:30 a.m. and started
working in the house of Montalla at 6:00. This is simply not done. Carpenters engaged in house building do not start
working that early. Their usual starting hour is 8:00 a.m. Bearing this in mind it appears clear that appellant, after
committing the rape around 6:00 a.m. was able to go to the job site thereafter and started working thereat at 8:00 a.m. His
alibi, therefore, is far from being convincing.

Lastly, we have the circumstance that His Honor, the trial judge who had the peculiar advantage of having heard the
testimony of the offended party chose to believe and accept it as true and as sufficient for purposes of conviction. Our
attention has not been called to any recorded fact or circumstance of sufficient importance to justify our reversing the
following findings and conclusions of His Honor:

"Tarcela Morados was orphaned of her father at an early age. Born on September 19, 1953, she was only seven years old
when her mother became the common-law wife of the accused. Although she was pregnant when she testified on
November 22, 1967, she appeared to the Court to be a fair skinned, pretty and pertly formed girl of fourteen years. Her
harrowing experience made her tearful at times in the course of her long testimony but through out she maintained her
child-like innocence in answering questions propounded to her both on direct and on cross-examination. The Court noted
that a shadow of anxiety often crept to her face whenever the accused gave her dagger looks. Yet she did not waver or
fumble in her detailed accusation. And in that battle of glances between her and Modelo, the latter invariably lowered his
eyes. Significantly, that fierce look of the accused melted into one of enervation after Tarcela and her mother were
through in their respective declarations, Thenceforth, the countenance of the accused became a picture of cautious
dejection. When he testified, it was in a languid voice and he appeared to be unsure of what he was to say. These
observations of the Court led it to conclude: First, that the accused dominated by terror not only the life of Tarcela but also
that of her mother, because Josefa Malay likewise displayed in Court that same reaction of fear for the accused as she
testified. Indeed, the evidence, shows that Josefa Malay, after being informed by Tarcela that the accused was
responsible for her pregnancy, could not even confront Modelo because she was worried he might kill her and her
daughter. If the accused could strike fear in the heart of Josefa Malay, he could easily subdue with terror a young girl like
Tarcela Morados. This explains the inexorable fact that although Tarcela fought for her honor everytime the accused
deflowered her, she kept to herself her disgrace until her pregnancy gave her away. Second, as between the testimony of
Tarcela Morados and Eustaquio Modelo, that of the former is more unfeigned, straight-forward, frank and sincere; while
that of the latter is deceptive, evasive, hallow and deep in half-truths. It is not beyond the realm of reality that the accused
would rape Tarcela Morados. His moral fiber is strained as shown by the fact that he took Tarcela's mother as his
bedmate without bothering to marry her although both were without impediment. He had mother and daughter completely
under subjection. Josefa Malay could not and would not dare extricate herself from that sinful union because of her three
little children with him. Tarcela could not also leave the house of the accused, even had she wanted to, because she had
nowhere to go. The central figure in the lives of Josefa Malay and her three little children, and of Tarcela, inevitably was
the accused, being the sole provider. In this irreversible circumstance, it is inconceivable if Tarcela would trump up
charges against Modelo or her mother would permit it, unless the same were true. Modelo was the barrier against hunger
and want for this family. And because of this fact, he had a towering moral influence over them. Tarcela Morados was not
related to him, but he saw her bloom into a desirable girl to whom he could empty himself. With his dominance over the
girl and the mother, as could be gleaned from their respective testimonies that they feared him, it was easy and safe for
the accused to rape Tarcela as it was difficult for the girl to frustrate him. That opportunity came to Modelo that early
morning of April 10, 1967 when he found himself almost alone with Tarcela, for his son, Orlando was fast asleep in the
room and baby Dominga was of no consequence. Even if Orlando would wake up while the accused was doing the
revolting act, he would not report on his own father. So Modelo raped Tarcela in the manner testified to by the girl in open
court. (pp. 9, 10, 11, Decision)."
Appellant's other contention that the offended party offerred no resistance when appellant had sexual intercourse with her
is without merit.

It is argued that the testimony of the offended party does not show that there was intimidation before or during the
intercourse, and that her admission that while appellant was on top of her, her hands were in her sides show that she had
offered no resistance to the commission of the act.

We disagree. In the first place, it is clear from the testimony of the offended party that appellant, a full grown man of more
than 40 years of age, employed force upon her. She held her by the shoulders; then forced her to lie down, and then took
off her panty. In the second place, we don't know what kind of "resistance" was expected to be offered by a young
innocent 13-year old girl against the common-law husband of her mother, of whom she must have been so much awed
that when he told her not to tell her mother about what he had done to her, she meekly answered: "Yes, father."

The fact, however, is that she really and actually "struggled" and offered resistance, as shown by the following pertinent
portions of her testimony:

"FISCAL

Q On April 10, 1967 at about six o'clock in the morning, do you remember where you were?

A Yes, sir.

Q Where were you?

A I was in the barrio of San Fernando, Sta. Cruz, Zambales, sir.

Q Where in that barrio?

A I was in the kitchen, sir.

Q Kitchen of your house?

A Yes, sir.

Q What were you doing then?

A I was boiling coffee, sir.

Q And while boiling coffee, who was with you?

A Eustaquio Modelo, sir, my step-father.

Q How about your half-sisters and brother that you mentioned? Where were they at the time?

A They sent them to buy bread, sir.

Q Who sent them?

A Eustaquio Modelo, sir.

Q What about your mother Josefa Malay? Where was she at the time?

A She went to look for somebody to hire her plant palay.

Q And as you were boiling coffee, were you carrying anybody with you?

MONTA

 Objection, your Honor, leading.

COURT  Reform

FISCAL
Q Aside from boiling coffee, what were you doing at the time?

A I was cooking rice, sir.

Q Now, while you were boiling coffee and cooking rice, do you know of anything that happened to you?

A There was, sir.

Q What was it?

A While I was boiling coffee and cooking rice, Eustaquio Modelo held me by my shoulders.

Q What did you do when Eustaquio Modelo, the accused, held you by the shoulder?

A I tried to extract myself from his hold.

MONTA

 We object . . . We disagree with the interpretation because by the word "im-magsaw," it means "I shouted."

INTERPRETER

 I stand corrected. "I shouted."

COURT

 So, how is the record now?

STENOGRAPHER:

Q What did you do when Eustaquio Modelo, the accused, held you by the shoulders."

A I shouted."

COURT

 Proceed.

FISCAL

Q What was your shout?

A That he held me.

Q No, my question is, what was your shout?

A That Eustaquio Modelo was holding me.

Q After you have shouted, what happened?

A He laid me down, opened my legs apart, placed his penis inside my vagina after removing my panty.

Q What did you do when Eustaquio Modelo laid you down?

A I was struggling, sir.

Q And after Modelo had placed his private part on your vagina, what happened?

A I felt pains, sir.

Q On what part of your body did you feel the pain?

A On my vagina.

Q What did you do when you felt pains in your vagina?

A I was struggling, sir.

Q Why were you struggling?

A Because it is painful, sir.

Q After that, what happened?

A He told me that if I will tell my mother about it, he will kill me.

Q And what did you tell Eustaquio Modelo when he made that threatening remarks?

A I said, "Yes, Father."

Q Why did you say "Yes, Father" when he made that threatening remarks?

A Because if he will come to know that I had told my mother about the incident he will kill me.

Q Thereafter, do you recall any other occasion when Eustaquio Modelo again abused you?

A Yes, sir.

Q When was that?

A That was in the afternoon of April 10, sir.

COURT

Q What year?

A 1967, sir.

FISCAL

Q How was he able to abuse you on that afternoon again?

A Eustaquio Modelo held me again.

Q On what part of the house did he hold you?

A Near the craddle in the kitchen, sir.

Q Why, what were you doing at this time when you were near the craddle in that afternoon?

A None, sir.

Q And when Eustaquio Modelo was holding you again that afternoon, what did you do?

A I fought back, sir.

Q Were you able to fight back?

A No, sir, because he is stronger than I am.

Q What happened when you were not able to fight back that afternoon?

A He placed his penis in my vagina, sir.

Q And after having placed his private part in your vagina, what did you do, if you did anything?

A I did not do anything, sir.

Q I mean he, what did he do after that?

A He got a piece of cloth and wiped my vagina. . . ."

WHEREFORE, finding no reversible error in the appealed decision, the same is hereby affirmed, with costs.
 FIRST DIVISION

[G.R. No. 32025. September 23, 1929.]

FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO
JOSE, Provincial Fiscal of Isabela, respondents.

DECISION

ROMUALDEZ, J p:

This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent judge ordered him to appear
before the provincial fiscal to take dictation in his won handwriting from the latter.

The order was given upon petition of said fiscal for the purpose of comparing the petitioner's handwriting and determining
whether or not it is he who wrote certain documents supposed to be falsified.

There is no question as to the facts alleged in the complaints filed in these proceedings; but the respondents contend that
the petitioner is not entitled to the remedy applied for, inasmuch as the order prayed for by the provincial fiscal and later
granted by the court below, and against which the instance action was brought, is based on the provisions of section 1687
of the Administrative Code and on the doctrine laid down in the cases of People  vs. Badilla (48 Phil., 718); United
States vs. Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the respondents,
and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in question.

Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon motion of the fiscal, may
compel witnesses to be present at the investigation of any crime of misdemeanor. But this power must be exercised
without prejudice to the constitutional rights of persons cited to appear.

And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the constitutional provision contained
in the Jones Law and incorporated in General Orders, No. 58.

Therefore, the question raised is to be decided by examining whether the constitutional provision invoked by the petitioner
prohibits compulsion to execute what is enjoined upon him by the order against which these proceedings were taken.

Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se le obligara a declarar
en contra suya en ningun proceso criminal" and has been incorporated in our Criminal Procedure (General Orders, No.
58) in section 15 (No. 4) and section 56.

As to the extent of this privilege, it should be noted first of all, that the English text of the Jones Law, which is the original
one, reads as follows: "Nor shall he be compelled in any criminal case to be a witness against himself."

This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned with a principle contained
both in the Federal constitution and in the constitutions of several states of the United States, but expressed differently,
we should take it that these various phrasings have a common conception.

"In the interpretation of the principle, nothing turns upon the variations of wordings in the constitutional clauses; this much
is conceded (ante, par. 2252). It is therefore immaterial that the witness is protected by one Constitution from 'testifying,'
or by another from 'furnishing evidence,' or by another from 'giving evidence,' or by still another from 'being a witness.'
These various phrasings have a common conception, in respect to the form of the protected disclosure. What is that
conception?" (4 Wigmore on Evidence, p. 863, 1923 ed.)

As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or furnishing of evidence.

"The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a
witness against himself is so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and
the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to
permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is
directed not merely to giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of
mouth, the divulging, in short, of any fact which the accused has a right to hold secret." (28 R. C. L., paragraph 20, page 434
and notes.) (Italics ours.)

The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by the petitioner for the
purpose of comparing the latter's handwriting and determining whether he wrote certain documents supposed to be falsified,
constitutes evidence against himself within the scope and meaning of the constitutional provision under examination.

Whenever a defendant, at the trial of his case, testifying in his own behalf, denies that a certain writing or signature is in his own
hand, he may on cross-examination but compelled to write in open court in order that the jury may be able to compare his
handwriting with the one in question. It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as
the defendant, in offering himself as witness in his own behalf, waived his personal privileges.

Of like character is the case of Sprouse vs. Com. (81 Va., 374, 378), where the judge asked the defendant to write his name
during the hearing, and the latter did so voluntarily.

But the cases so resolved cannot be compared to the one now before us. We are not concerned here with a defendant, for it
does not appear that any information was filed against the petitioner for the supposed falsification, and still less is it a question of
a defendant on trial testifying and under cross-examination. This is only an investigation prior to the information and with a view
to filing it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed the act voluntarily.

We have also come upon a case wherein the handwriting or the form of writing of the defendant was obtained  before the
criminal action was instituted against him. We refer to the case of People vs. Molineux (61 Northeastern Reporter, 286).

Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse  vs. Com., the defendant
voluntarily offered to write, to furnish a specimen of his handwriting.

We cite this case particularly because the court there given prominence to the defendant's right to decline to write, and to the
fact that he voluntarily wrote. The following appears in the body of said decision referred to (page 307 of the volume cited):

"The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the latter's request, and we can
discover no ground upon which the writings thus produced can be excluded from the case." (Italics ours.)

For this reason it was held in the case of First National Bank vs. Robert 941 Mich., 709; 3 N. W., 199), that the defendant could
not be compelled to write his name, the doctrine being stated as follows:

"The defendant being sworn in his own behalf denied the indorsement.

"He was then cross-examined and questioned in regard to his having signed papers not in the case, and was asked in particular
whether he would not produce signatures made prior to the note in suit, and whether he would not write his name there in court.
The judge excluded all these inquiries, on objection, and it is our these rulings that complaint is made. The object of the
questions was to bring into the case extrinsic signatures, for the purpose of comparison by the jury, and we think the judge was
correct in ruling against it."

It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:

"Measuring or photographing the party is not within the privilege. Nor is the removal or replacement of his garments or shoes.
Nor is the requirement that the party move his body to enable the foregoing things to be done. Requiring him to make specimens
of handwriting is no more than requiring him to move his body . . ." but he cites no case in support of his last assertion on
specimens of handwriting. We noted that in the same paragraph 2265, where said author treats of "Bodily Exhibition," and under
proposition "1. A great variety of concrete illustrations have been ruled upon," he cites many cases, among them that of
People vs. Molineux (61 N. E., 286) which, as we have seen, has no application to the case at bar because there the defendant
voluntarily gave specimens of his handwriting, while here the petitioner refuses to do so and has even instituted these prohibition
proceedings that he may not be compelled to do so.

Furthermore, in the case before us, writing is something more than moving the body, or the hand, or the fingers; writing is not a
purely mechanical and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to
determine or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we
believe the present case is similar to that of producing documents of chattels in one's possession. And as to such production of
documents or chattels, which to our mind is not so serious as the case now before us, the same eminent Professor Wigmore, in
his work cited, says (volume 4, page 864):
". . . 2264, Production or Inspection of Documents and Chattels. — 1. It follows that the production of documents or chattels by a
person (whether ordinary witness or party-witness) in response to a subpoena, or to a motion to order production, or to other
form of process treating him as a witness (i. e. as a person appearing before the tribunal to furnish testimony on his moral
responsibility for truth- telling), may be refused under the protection of the privilege; and this is universally conceded." (And he
cites the case of People vs. Gardner, 144 N. Y., 119, 38 N. E., 1003.)

We say that, for the purposes of the constitutional privilege, there is a similarity between one who is compelled to produce a
document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to
furnish evidence against himself.

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

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

It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's handwriting is not granted,
the crime would go unpunished. Considering the circumstance that the petitioner is a municipal treasurer, according to Exhibit A,
it should not be a difficult matter for the fiscal to obtain genuine specimens of his handwriting. But even supposing it is
impossible to obtain a specimen or specimens without resorting to the means complained of herein, that is not reason for
trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in
evading the hand of justice, but such cases are accidental and do not constitute the  raison d'etre of the privilege. This
constitutional privilege exists for the protection of innocent persons.

With respect to the judgments rendered by this court and cited on behalf of the respondents, it should be remembered that in the
case of People vs. Badilla (48 Phil., 718), it does not appear that the defendants and other witnesses were questioned by the
fiscal against their will, and if they did not refuse to answer, they must be understood to have waived their constitutional
privilege, as they could certainly do.

"The privilege not to give self-incriminating evidence, while absolute when claimed, may be waived by any one entitled to invoke
it." (28 R. C. L., paragraph 29, page 442, and cases noted.)

The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), where the defendant did not oppose the
extraction from his body of the substance later used as evidence against him.

In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest its decision on the reason
of the case rather than on blind adherence to tradition. The said reason of the case there consisted in that it was a case of the
examination of the body by physicians, which could be and doubtless was interpreted by this court, as being no compulsion of
the petitioner therein to furnish evidence by means of a testimonial act. In reality she was not compelled to execute any position
act, much less a testimonial act; she was only enjoined from something, preventing the examination; all of which is very different
from what is required of the petitioner in the present case, where it is sought to compel his to perform a  positive, testimonial
act, to write and give a specimen of his handwriting for the purpose of comparison. Beside, in the case of Villaflor  vs. Summers,
it was sought to exhibit something already in existence, while in the case at bar, the question deals with something not yet in
existence, and it is precisely sought to compel the petitioner to make, prepare, or produce by means, evidence not yet in
existence; in short, to create this evidence which may seriously incriminate him.

Similar considerations suggest themselves to us with regard to the case of United States  vs. Ong Siu Hong (36 Phil., 735),
wherein the defendant was to compelled to perform any testimonial act, but to take out of his mouth the morphine he had there.
It was not compelling him to testify or to be a witness or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.

Wherefore, we find the present action well taken, and it is ordered that the respondents and those under their orders desist and
abstain absolutely and forever from compelling the petitioner to take down dictation in his handwriting for the purpose of
submitting the latter for comparison. Without express pronouncement as to costs. So ordered.
 EN BANC

[G.R. No. L-19052. December 29, 1962.]

MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF

MANILA, respondents.

DECISION

CONCEPCION, J p:

This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon. Ruperto Kapunan,
Jr., as Judge of the Court of First Instance of Manila, from further proceeding in Criminal Case No. 60111 of said court,
and to set aside an order of said respondent, as well as the whole proceedings in said criminal case.

On or about August 2, 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of National Defense a
letter-complaint charging petitioner Manuel F. Cabal, then Chief of Staff of the Armed Forces of the Philippines, with "graft,
corrupt practices, unexplained wealth, conduct unbecoming of an officer and gentleman, dictatorial tendencies, giving
false statements of his assets and liabilities in 1958 and other equally reprehensible acts". On September 6, 1961, the
President of the Philippines created a committee of five (5) members, consisting of former Justice Marceliano R.
Montemayor, as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J. Valdez
and Guillermo B. Francisco, to investigate the charge of unexplained wealth contained in said letter-complaint and submit
its report and recommendations as soon as possible. At the beginning of the investigation, on September 15, 1961, the
Committee, upon request of complainant, Col. Maristela, ordered petitioner herein to take the witness stand and be sworn
to as witness for Maristela, in support of his aforementioned charge of unexplained wealth. Thereupon, petitioner
objected, personally and through counsel, to said request of Col. Maristela and to the aforementioned order of the
Committee, invoking his constitutional right against self-incrimination. The Committee insisted that petitioner take the
witness stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory. This
notwithstanding, petitioner respectfully refused to be sworn to as a witness or take the witness stand. Hence, in a
communication dated September 18, 1961, the Committee referred the matter to respondent City Fiscal of Manila, for
such action as he may deem proper. On September 28, 1961, the City Fiscal filed with the Court of First Instance of
Manila a "charge" reading as follows:

"The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the Revised Administrative Code
in relation to sections 1 and 7, Rule 64 of the Rules of Court, committed as follows:

That on or about September 15, 1961, in the investigation conducted at the U.P. Little Theater, Padre Faura, Manila, by
the Presidential Committee, which was created by the President of the Republic of the Philippines in accordance with law
to investigate the charges of alleged acquisition by respondent of unexplained wealth and composed of Justice
Marceliano Montemayor, as Chairman, and Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio
Valdez and Guillermo Francisco, as members, with the power, among others, to compel the attendance of witnesses and
take their testimony under oath, respondent who was personally present at the time before the Committee in compliance
with a subpoena duly issued to him, did then and there willfully, unlawfully, and contumaciously, without any justifiable
cause or reason, refuse and fail and still refuse and fail to obey the lawful order of the Committee to take the witness
stand, be sworn and testify as witness in said investigation, in utter disregard of the lawful authority of the Committee and
thereby obstructing and degrading the proceedings before said body.'

"Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of contempt of the Presidential
Committee and accordingly disciplined as in contempt of court by imprisonment until such time as he shall obey the
subject order of said Committee."

This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof, presided over by
respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner to show cause and/or answer the
charge filed against him within ten (10) days. Soon thereafter, or on October 4, 1961, petitioner filed with respondent
Judge a motion to quash the charge and/or order to show cause, upon the ground: (1) that the City Fiscal has neither
authority nor personality to file said charge and the same is null and void, for, if criminal, the charge has been filed without
a preliminary investigation, and, if civil, the City Fiscal may not file it, his authority in respect of civil cases being limited to
representing the City of Manila; (2) that the facts charged constitute no offense, for section 580 of the Revised
Administrative Code, upon which the charge is based, violates due process, in that it is vague and uncertain as regards
the offense therein defined and the fine imposable therefor and that it fails to specify whether said offense shall be treated
as contempt of an inferior court or of a superior court; (3) that more than one offense is charged, for the contempt imputed
to petitioner is sought to be punished as contempt of an inferior court, as contempt of a superior court and as contempt
under section 7 of Rule 64 of the Rules of Court; (4) that the Committee had no power to order and require petitioner to
take the witness stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as said
order violates petitioner's constitutional right against self-incrimination.

By resolution dated October 14, 1961, respondent Judge denied said motion to quash. Thereupon, or on October 20,
1961, petitioner began the present action for the purpose adverted to above, alleging that, unless restrained by this Court,
respondent Judge may summarily punish him for contempt, and that such action would not be appealable.

In their answer, respondents herein allege, inter alia, that the investigation being conducted by the Committee above
referred to is administrative, not criminal, in nature; that the legal provision relied upon by petitioner in relation to
preliminary investigations (Section 38-C, Republic Act No. 409, as amended by Republic Act No. 1201) is inapplicable to
contempt proceedings; that, under section 580, of the Revised Administrative Code, contempt against an administrative
officer is to be dealt with as contempt of a superior court; that petitioner herein is charged with only one offense; and that,
under the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the witness stand,
but to answer incriminatory questions.

At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer incriminatory questions,
but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue
before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in
character.

In this connection, it should be noted that, although said Committee was created to investigate the administrative charge
of unexplained wealth, there seems to be no question that Col. Maristela does not seek the removal of petitioner herein as
Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he no longer holds such office. It seems, likewise,
conceded that the purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as
amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a public
officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other
lawful income and the income from legitimately acquired property. Such forfeiture has been held, however, to partake of
the nature of a penalty.

"In a strict signification, a forfeiture is a divestiture of property without compensation, in consequence of a default or an
offense, and the term is used in such a sense in this article. A forfeiture, as thus defined, is imposed by way
of punishment not by the mere convention of the parties, but by the lawmaking power, to insure a prescribed course of
conduct. It is a method deemed necessary by the legislature to restrain the commission of an offense and to aid in the
prevention of such an offense. The effect of such a forfeiture is to transfer the title to the specific thing from the owner to
the sovereign power (23 Am. Jur. 599) (Emphasis ours.)

"In Black's Law Dictionary a 'forfeiture' is defined to be 'the incurring of a liability to pay a definite sum of money as the
consequence of violating the provisions of some statute or refusal to comply with some requirement of law.' It may be said
to be a penalty imposed for misconduct or breach of duty.'" (Com. vs. French, 114 S.W. 255.)

As a consequence, proceedings for forfeiture of property are deemed criminal or penal, and, hence, the exemption of
defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto.

"Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or imprisonment against any
person are deemed to be civil proceedings in rem. Such proceedings are criminal in nature to the extent that where the
person using the res illegally is the owner of rightful possessor of it, the forfeiture proceeding is in the nature of a
punishment. They have been held to be so far in the nature of criminal proceedings that a general verdict on several
counts in an information is upheld if one count is good. According to the authorities such proceedings, where the owner of
the property appears, are so far considered as quasicriminal proceedings as to relieve the owner from being a witness
against himself and to prevent the compulsory production of his books and papers. . . ." (23 Am. Jur. 612; Emphasis ours.)
"Although the contrary view formerly obtained, the later decisions are to the effect that suits for forfeitures incurred by the
commission of offenses against the law are so far of a quasi-criminal nature as to be within the reason of criminal
proceedings for all purposes of . . . that portion of the Fifth Amendment which declares that no person shall be compelled
in any criminal case to be a witness against himself . . . . It has frequently been held upon constitutional grounds under the
various State Constitution that a witness or party called as a witness cannot be made to testify against himself as to
matters which would subject his property to forfeiture. At early common law no person could be compelled to testify
against himself or to answer any question which would have had a tendency to expose his property to a forfeiture, or to
form a link in a chain of evidence for that purpose as well as to incriminate him. Under this common-law doctrine of
protection against compulsory disclosures which would tend to subject the witness to a forfeiture, such protection was
claimed and availed of in some early American cases without placing the basis of the protection upon constitutional
grounds." (23 Am. Jur. 616; Emphasis ours.)

"Proceedings for forfeitures are generally considered to be civil and in the nature of proceedings  in rem. The statute
providing that no judgment or other proceedings in civil cases shall be arrested or reversed for any defect or want of form
is applicable to them. In some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within
the reason of criminal proceedings for all the purposes of . . . that portion of the Fifth Amendment which declares that no
person shall be compelled in any criminal case to be a witness against himself . The proceeding is one against the owner,
as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture and his
property is sought to be forfeited." (15 Am. Jur., Sec. 104, p. 368; Emphasis ours.)

"The rule protecting a person from being compelled to furnish evidence which would incriminate him exists  not only when
he is liable criminally to prosecution and punishment, but also when his answer would tend to expose him to
a . . . forfeiture . . . (58 Am. Jur., Sec. 43, p. 48; Emphasis ours.)

"As already observed, the various constitutions provide that no person shall be compelled in any criminal case to be a
witness against himself. This prohibition against compelling a person to take the stand as a witness against himself
applies only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of
property by reason of the commission of an offense, but not a proceeding in which the penalty recoverable is civil or
remedial in nature, . . ." (58 Am. Jur., Sec. 44, p. 49; Emphasis ours.)

"The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question which he
refuses to answer. The privilege is simply an option of refusal, and not a prohibition of inquiry. A question is not improper
merely because the answer may tend to criminate but, where a witness exercises his constitutional right not to answer, a
question by counsel as to whether the reason for refusing to answer is because the answer may tend to incriminate the
witness is improper.

"The possibility that the examination of the witness will be pursued to the extent of requiring self incrimination will not
justify the refusal to answer questions. However, where the position of the witness is virtually that of an accused on trial, it
would appear that he may invoke the privilege in support of a blanket refusal to answer one and all questions." (98 C.J.S.,
p. 252; Emphasis ours.)

"A person may not be compelled to testify in an action against him for a penalty or to answer any question as a witness
which would subject him to a penalty or forfeiture, where the penalty or forfeiture is imposed as a vindication of the public
justice of the state.

"In general, both at common law and under a constitutional provision against compulsory self-incrimination, a person may
not be compelled to answer any question as a witness which would subject him to a penalty or forfeiture, or testify in an
action against him for a penalty.

"The privilege applies where the penalty or forfeiture is recoverable, or is imposed in vindication of the public justice of the
state, as a statutory fine or penalty, or a fine or penalty for violation of a municipal ordinance, even though the action or
proceeding for its enforcement is not brought in a criminal court but is prosecuted through the modes of procedure
applicable to an ordinary civil remedy." (98 C.J.S., pp. 275-6.)

Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to declare a
forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding, is in
substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason of criminal
proceedings for the purposes of that portion of the Fifth Amendment of the Constitution of the U.S. which declares that no
person shall be compelled in a criminal case to be a witness against himself. Similarly, a proceeding for the removal of an
officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the
Fifth Amendment applies "to all cases in which the action prosecuted is not to establish, recover or redress  private and
civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is an
action, suit or cause instituted to punish an infraction of the criminal laws, and, with this object in view,  it matters not in
what form a statute may clothe it; it is still a criminal case . . .". This view was, in effect confirmed in Lees vs. U.S. (37 L.
ed. 1150-1151). Hence, the Lawyers Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases,
concludes that said constitutional provision applies whenever the proceeding is not "purely remedial", or intended "as a
redress for a private grievance", but primarily to punish "a violation of duty or a public wrong and to deter others from
offending in a like manner . . ."

We are not unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that,
after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be
amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that
said forfeiture proceeding is civil in nature. This doctrine refers, however, to the purely procedural aspect of said
proceeding, and has no bearing on the substantial rights of the respondents therein, particularly their constitutional right
against self-incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from proceeding further
in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered.
 EN BANC

[G.R. No. L-25018. May 26, 1969.]

ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL EXAMINERS, respondent-

appellant, SALVADOR GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.

DECISION

FERNANDO, J p:

The broad, all-embracing sweep of the self-incrimination clause, 1 whenever appropriately invoked, has been accorded due
recognition by this Court ever since the adoption of the Constitution. 2 Bermudez v. Castillo, 3 decided in 1937, was quite
categorical. As we there stated: "This Court is of the opinion that in order that the constitutional provision under consideration
may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person
invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed, would be
construed with the utmost liberality in favor of the right of the individual intended to be served." 4

Even more relevant, considering the precise point at issue, is the recent case of Cabal v. Kapunan, 5 where it was held that a
respondent in an administrative proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at the
instance of the complainant. So it must be in this case, where petitioner was sustained by the lower court in his plea that he
could not be compelled to be the first witness of the complainants, he being the party proceeded against in an administrative
charge for malpractice. That was a correct decision; we affirm it on appeal.

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for
prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was
alleged therein that at the initial hearing of an administrative case 7 for alleged immorality, counsel for complainants announced
that he would present as his first witness herein petitioner-appellee, who was the respondent in such malpractice charge.
Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt
from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time
stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such
witness, unless in the meantime he could secure a restraining order from a competent authority.

Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the Board of Examiners was guilty, at
the very least, of grave abuse of discretion for failure to respect the constitutional right against self-incrimination, the
administrative proceeding against him, which could result in forfeiture or loss of a privilege, being quasi-criminal in character.
With his assertion that he was entitled to the relief demanded consisting of perpetually restraining the respondent Board from
compelling him to testify as witness for his adversary and his readiness or his willingness to put a bond, he prayed for a writ of
preliminary injunction and after a hearing or trial, for a writ of prohibition.

On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the respondent Board
commanding it to refrain from hearing or further proceeding with such an administrative case, to await the judicial disposition of
the matter upon petitioner-appellee posting a bond in the amount of P500.00.

The answer of respondent Board, while admitting the facts stressed that it could call petitioner-appellee to the witness stand and
interrogate him, the right against self-incrimination being available only when a question calling for an incriminating answer is
asked of a witness. It further elaborated the matter in the affirmative defenses interposed, stating that petitioner-appellee's
remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary course
of law," precluding the issuance of the relief sought. Respondent Board, therefore, denied that it acted with grave abuse of
discretion.

There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the complainants in the administrative
case for malpractice against petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such a motion was
granted and an answer in intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board,
which for them is limited to compelling the witness to take the stand, to be distinguished, in their opinion, from the power to
compel a witness to incriminate himself. They likewise alleged that the right against self- incrimination cannot be availed of in an
administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and
prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said
investigation without his consent and against himself." Hence this appeal both by respondent Board and intervenors, the
Gatbontons. As noted at the outset, we find for the petitioner-appellee.

1.We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by us in
Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an order of Judge Kapunan, it appeared that an
administrative charge for unexplained wealth having been filed against petitioner under the Anti-Graft Act, 9 the complainant
requested the investigating committee that petitioner be ordered to take the witness stand, which request was granted. Upon
petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent Judge. He
filed a motion to quash and upon its denial, he initiated this proceeding. We found for the petitioner in accordance with the well-
settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take
the witness stand."

It was noted in the opinion penned by the present Chief Justice that while the matter referred to an administrative charge of
unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of whatever property a public officer or employee may
acquire, manifestly out of proportion to his salary and his other lawful income, there is clearly the imposition of a penalty. The
proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. The case before us is not
dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of his
license as medical practitioner, for some an even greater deprivation.

To the argument that Cabal v. Kapunan could thus be distinguished, it suffices to refer to an American Supreme Court opinion
highly persuasive in character. 10 In the language of Justice Douglas: "We conclude .. that the Self-Incrimination Clause of the
Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals,
and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for
asserting it." We reiterate that such a principle is equally applicable to a proceeding that could possibly result in the loss of the
privilege to practice the medical profession.

2.The appeal apparently proceeds on the mistaken assumption by respondent Board and intervenors-appellants that the constitutional
guarantee against self-incrimination should be limited to allowing a witness to object to questions the answers to which could lead to a
penal liability being subsequently incurred. It is true that one aspect of such a right, to follow the language of another American
decision, 11 is the protection against "any disclosures which the witness may reasonably apprehend could be used in a criminal
prosecution or which could lead to other evidence that might be so used." If that were all there is then it becomes diluted.

The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: "The accused has a
perfect right to remain silent and his silence cannot be used as a presumption of his guilt." 12 Only last year, in Chavez v. Court of
Appeals, 13 speaking through Justice Sanchez, we reaffirmed the doctrine anew that is the right of a defendant "to forego testimony, to
remain silent, unless he chooses to take the witness stand—with undiluted, unfettered exercise of his own free genuine will."

Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a
belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be
accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more
in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due
weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government . . . must
accord to the dignity and integrity of its citizens." 14

It is likewise of interest to note that while earlier decisions stressed the principle of humanity on which this right is predicated, precluding
as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its
identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables
the citizen to create a zone of privacy which government may not force to surrender to his detriment." 15 So also with the observation of
the late Judge Frank who spoke of "a right to a private enclave where he may lead a private life. That right is the hallmark of our
democracy." 16

In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of
the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice,
respondent Board of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person proceeded against to
take the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement as to costs.