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[G.R. No. 152989. September 4, 2002] ROLDAN, JR. vs. HON. MADRONA, et al.

THIRD DIVISION Gentlemen: Quoted hereunder, for your information, is a resolution of this Court dated 04 SEPT 2002. G.R. No. 152989 (Manuel Jorge Roldan, Jr. vs. Hon. Fortunito L. Madrona Pairing Judge, RTC Branch 12, Ormoc City and Hon. Alberto L. Conopio, City Prosecutor, Ormoc City, ATTY. FIEL MARMITA, OIC, DENR-CENRO, Albuera, Leyte.) At bar is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. Herein petitioner is the owner of a parcel of land consisting of about 60,000 square meters covered by Transfer Certificate of Title No. TP-331 which he bought from a certain Ildefonso O. Maglasang. On August 9, 2001, petitioner applied for a Private Land Timber Permit (PLTP) from the Department of Environment and Natural Resources for him to cut some trees for a proposed road and poultry farm in his property. He also paid all the fees required by the various government agencies. While waiting for the permit to be issued, petitioner was allegedly informed by some employees from the Department of Environment and Natural Resources (DENR) that he could proceed with the cutting of trees even though his application was still awaiting approval. Consequently, petitioner proceeded with the cutting of trees and bulldozing of the roadway. He used the cut logs as materials to build his chicken cages. About three weeks later, representatives of the Community Environment and Natural Resources Office (CENRO) of the Department of Environment and Natural Resources and personnel from the Intelligence Service, Armed Forces of the Philippines (ISAFP) of Tacloban City raided petitioners place, allegedly without a search warrant. An inventory of the cut trees was conducted. The logs were not confiscated but were entrusted to a barangay kagawad since there was allegedly no search warrant at that time. About two days later, the CENRO representatives came back with members of the media and ISAFP charging illegal logging but they failed to get the logs, again for alleged lack of search warrant. Several days thereafter, the CENRO group and ISAFP returned, this time armed with a search warrant and proceeded to confiscate 872 pieces of sawn lumber/flitches (8,506 board feet) and three felled timber logs with a total market value of P235,454.68 at P27.00 per board foot. Consequently, on September 21, 2001, a complaint for violation of Section 68 of PD 705 as amended was filed against herein petitioner by CENRO before the City

Prosecutor of Ormoc City. Thereafter, the City Prosecutor issued a resolution dated November 16, 2001 finding probable cause to convict petitioner for violation of Section 68 of PD 705 as amended. A motion for reconsideration proved futile for, as it turned out, the information had already been filed in court. Jurisdiction over the case was transferred to the regional trial court, also a public respondent in this case. A warrant for the arrest of petitioner was then issued by the court a quo. In view thereof, herein petitioner filed with the trial court a motion for judicial determination of probable cause and the recall of his warrant of arrest. After hearing the said motion, public respondent Judge Fortunito L. Madrona, in an order dated February 15, 2000 denied the motion but reduced the recommended bail of petitioner. Hence, the instant petition. Before us, petitioner raises the following issues: (1) whether the owner of a private land, the petitioner in this case, is criminally liable under Section 68 of PD 705 for cutting trees within his own property; (2) whether the owner of the private property is administratively liable under Sec. 14 of DENR Administrative Order No. 2000-21 despite the fact that he did not transport the logs out of his property and just used them for his own agricultural purposes therein and (3) whether the logs confiscated by the DENR should be returned to the petitioner considering that the same were not transported out and merely used for his own agricultural purposes. As to the first issue, petitioner contends that he should not be held liable under Section 68 of PD 705 as amended since the timber that was cut and gathered came from his titled property. He further asserts that the part of Section 68, PD 705 incorporating the provisions of Articles 309 and 310 of the Revised Penal Code regarding qualified theft should not be made to apply to his case since the aforestated articles of the penal code apply only to those who commit theft, which under the law is a crime committed when there is unlawful taking of a property belonging to another. He insists that both penal provisions should not be made to apply since he is the owner of the property and as owner he cannot be accused of stealing his own property. Petitioner concludes that Article 309 therefore applies only to other persons or strangers gathering timber from the titled property of another while Article 310 is inapplicable in his case since such pertains to theft of coconuts in a plantation. At the outset, the Court notes that while petitioner continues to harp on the alleged questions of law present in this case, the petition at bar was filed via a petition for certiorari under Rule 65. Nothing is more settled than the rule that a writ of certiorari lies only where a court has acted without or in excess of jurisdiction or with grave abuse of discretion. The Court believes that none of the aforementioned circumstances is present in this case. Be that as it may, although this Court at the outset had pointed out that herein petitioner adopted the wrong remedy and committed certain technical violations of the Rules on Civil Procedure which necessitate its outright dismissal, nevertheless, in the

interest of substantial justice and in view of the novelty of the question of law involved, the Court in the exercise of its judicial discretion shall treat this petition as having been filed under Rule 45. The fundamental question of law we seek to resolve in this case is: may a person who cuts trees for his own use within his property without the necessary permit from the DENR and without transporting the same outside said property, be criminally charged for violating PD 705? Section 68 of PD 705, as amended by E.O. 277, otherwise known as the Revised Forestry Code of the Philippines provides:
SEC. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License.- Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. (Emphasis supplied)

Herein petitioner argues that even if the phrase pertaining to Articles 309 and 310 of the penal code was only meant to prescribe the imposable penalty, since the cut trees were from his private land, his penalty should not be equated with that imposable on those who commit theft inasmuch as theft and qualified theft involve the unlawful taking of a property belonging to another. The argument of petitioner is specious. Under Section 68, PD 705 as amended by E.O. 277, it is clear that the violators of the said law are not declared as being guilty of qualified theft. Articles 309 and 310 of the Revised Penal Code were referred to only for the purpose of determining the imposable penalties and not to define acts which constitute qualified theft. Moreover, petitioners argument that the provisions of the law regarding qualified theft should not be applied to him since he is the owner of the property is devoid of merit. It must be stressed that petitioner is not being charged for qualified theft but for violation of Section 68, PD 705 hence his ownership of the land is of no moment. The said law does not even distinguish whether or not the person who commits the punishable acts under the aforementioned law is the owner of the property, for what is material in determining the culpability of a person is whether or not the person or entity involved or charged with its violation possesses the required permit, license or

authorization from DENR at the time he or it cuts, gathers or collects timber or other forest products. As to his assertion that his penalty for cutting trees in his own land should not be equated with that for qualified theft, suffice it to say that the judiciary is never concerned with the wisdom of the law. Whether or not the legislature was correct in imposing on violators of PD 705 a penalty equal to that imposable on those guilty of qualified theft is a question beyond the power of this Court to resolve. It is a settled rule that the fundamental duty of the Court is to apply the law regardless of who may be affected, even if the law is harsh - dura lex sed lex. The remedy is elsewhere clemency from the executive or an amendment of the law by the legislature. We come now to the second issue posed by herein petitioner on whether the owner of a private property is administratively liable under Section 14 of DENR Administrative Order No. 2000-21 despite the fact that he did not transport the logs out of his property and used them for his own agricultural purposes. Section 14 of Administrative Order No. 2000-21, the Revised Guidelines in the Issuance of Private Land Timber Permit/Special Private Land Timber Permit, provides:
SEC. 14. Penal Provisions. - Any log/timber or finished-wood products covered by these regulations which are transported without the prescribed documents shall be considered illegal and, therefore, subject to confiscation in favor of the government and shall be disposed in accordance with laws, rules and regulations governing the matter. DENR Officials found issuing defective certificate of origin and other transport documents required in this Order shall be subject to suspension without prejudice to the imposition of other penalties as may be warranted by extant Civil Service Laws, rules and regulations.

The rule is clear. The aforementioned administrative order considers the mere act of transporting any wood product or timber without the prescribed documents as an offense which is subject to the penalties provided for by law. As to the defense of petitioner that he never transported the logs out of his property, suffice it to say that such is a factual issue which this Court under Rule 45 cannot determine. We are limited to resolving questions of law. On the issue of whether the logs confiscated by the DENR should be returned to petitioner, any pronouncement thereon at this point would be premature as the guilt of the petitioner has not been legally established. The records of the case indicate that trial on the merits is still in progress. Hence, this Court is not in a position to speculate on or prescribe the courses of action or remedies the petitioner may avail of under the aforementioned law. Well-entrenched is the rule that this Court is not duty bound to render advisory opinions. WHEREFORE, the petition is DENIED for lack of merit. Very truly yours, (Sgd.) JULIETA Y. CARREON Clerk of Court

SECOND DIVISION [G.R. No. 136142. October 24, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO DATOR and BENITO GENOL, accused (Acquitted)

PASTOR TELEN, accused-appellant.


DECISION DE LEON, JR., J.: Before us on appeal is the Decisioni[1] of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, in Criminal Case No. 1733 convicting the appellant of the crime of violation of Presidential Decree No. 705. Pastor Telen and his co-accused, Alfonso Dator and Benito Genol, were charged with the crime of violation of Section 68ii[2] of Presidential Decree No. 705, otherwise known as the Revised Forestry Code,iii[3] in an Information that reads: That on or about the 29th day of October, 1993 at around 8:00 oclock in the evening, in barangay Laboon, municipality of Maasin, province of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping each other, with intent of gain, did then and there wilfully, unlawfully and feloniously possess 1,560.16 board feet of assorted lumber flitches valued at TWENTY-THREE THOUSAND FIVE HUNDRED PESOS (23,500.00), Philippine Currency, without any legal document as required under existing forest laws and regulations from proper government authorities, to the damage and prejudice of the government. CONTRARY TO LAW. Upon being arraigned on May 27, 1994, Pastor Telen and his co-accused, Alfonso Dator and Benito Genol, assisted by counsel, separately entered the plea of Not guilty to the charge in the Information. Thereafter, trial on the merits ensued. It appears that on October 29, 1993, Police Station Commander Alejandro Rojas of Maasin, Southern Leyte, and SPO1 Necitas Bacala, were on board a police patrol vehicle heading towards Barangay San Rafael, Maasin, Southern Leyte. Upon reaching Barangay Laboon of the same municipality, they noticed a Isuzu cargo truck loaded with pieces of lumber bound toward the town proper of Maasin. Suspicious that the cargo was illegally cut pieces of lumber, Police Station Commander Rojas maneuvered their police vehicle and gave chase.iv[4] Upon catching up with the Isuzu cargo truck in Barangay Soro-soro, Maasin, Southern Leyte, they ordered the driver, accused Benito Genol, to pull over. Benito Genol was left alone in the truck after his companions hurriedly left. When asked if he had the required documents for the

proper transport of the pieces of lumber, Genol answered in the negative. Genol informed the police authorities that the pieces of lumber were owned by herein appellant, Pastor Telen, while the Isuzu cargo truck bearing Plate No. HAF 628 was registered in the name of Southern Leyte Farmers Agro-Industrial Cooperative, Inc. (SLEFAICO) which is a local cooperative. Consequently, Police Officers Rojas and Bacala directed Benito Genol to proceed to the Maasin Police Station, Maasin, Southern Leyte for further investigation.v[5] On November 5, 1993, Forest Ranger Romeo Galola was fetched from his office at the Community Environment and Natural Resources Office (CENRO), Maasin, Southern Leyte by SPO1 Necitas Bacala to inspect the pieces of lumber that were confiscated on October 29, 1993 in Soro-soro, Maasin, Southern Leyte from Pastor Telen. Galola and his immediate supervisor, Sulpicio Saguing, found that the cargo consisted of forty-one (41) pieces of Dita lumber and ten (10) pieces of Antipolo lumber of different dimensions with a total volume of 1,560.16 board feet.vi[6] Subsequently, SPO1 Bacala issued a seizure receiptvii[7] covering the fifty-one (51) pieces of confiscated Dita and Antipolo lumber and one (1) unit of Isuzu cargo truck with Plate No. HAF 628. The confiscated pieces of lumber and the cargo truck were turned over to SPO3 Daniel Lasala, PNP Property Custodian, Maasin, Southern Leyte who, in turn, officially transferred custody of the same to the CENRO, Maasin, Southern Leyte.viii[8] The defense denied any liability for the crime charged in the Information. Pastor Telen, a utility worker at the Integrated Provincial Health Office, Southern Leyte for nineteen (19) years, testified that he needed lumber to be used in renovating the house of his grandparents in Barangay Abgao, Maasin, Southern Leyte where he maintained residence. Knowing that it was prohibited by law to cut trees without appropriate permit from the Department of Environment and Natural Resources (DENR), Telen sought the assistance of a certain Lando dela Pena who was an employee at the CENRO, Maasin, Southern Leyte. Dela Pena accompanied Telen to the office of a certain Boy Leonor, who was the Officer in Charge of CENRO in Maasin, Southern Leyte. Leonor did not approve of the plan of Telen to cut teak or hard lumber from his (Telen) mothers track of land in Tabunan, San Jose, Maasin, Southern Leyte. However, Leonor allegedly allowed Telen to cut the aging Dita trees only. According to Telen, Leonor assured him that a written permit was not anymore necessary before he could cut the Dita trees, which are considered soft lumber, from the private land of his mother, provided the same would be used exclusively for the renovation of his house and that he shall plant trees as replacement thereof, which he did by planting Gemelina seedlings.ix[9] On September 15, 1993, Telen requested his cousin, Vicente Sabalo, to hire for him a cargo truck in order to haul the sawn lumber from the land of his mother in Tabunan, San Jose, Maasin, Southern Leyte. His cousin obliged after Telen assured him that he had already secured verbal permission from Boy Leonor, Officer in Charge of CENRO in Maasin, Southern Leyte, before cutting the said lumber.x[10] After having been informed by Vicente Sabalo on October 29, 1993 at about 4:00 oclock in the afternoon that a cargo truck was available for hire, Telen instructed his cousin to personally supervise the hauling of the sawn lumber for him inasmuch as he was busy with his work in the

office. At around 7:00 oclock in the evening, Telen learned from his daughter that the sawn lumber were confiscated by the police in Barangay Soro-soro, Maasin, Southern Leyte.xi[11] Upon arrival in Barangay Soro-Soro, Telen was accosted by Police Station Commander Alejandro Rojas who demanded from him DENR permit for the sawn lumber. After confirming ownership of the sawn lumber, Telen explained to Rojas that he had already secured verbal permission from Boy Leonor to cut Dita trees, which are considered soft lumber, to be used in the renovation of his house and that he had already replaced the sawn Dita trees with Gemelina seedlings, but to no avail. Rojas ordered that the pieces of lumber and the Isuzu cargo truck be impounded at the municipal building of Maasin, Southern Leyte for failure of Telen to produce the required permit from the DENR.xii[12] Pastor Telen appeared before Bert Pesidas, CENRO hearing officer, in Maasin, Southern Leyte for investigation in connection with the confiscated pieces of lumber. Telen had tried to contact Officer-in-Charge Boy Leonor of the CENRO Maasin, Southern Leyte after the confiscation of the sawn lumber on October 29, 1993 and even during the investigation conducted by the CENRO hearing officer for three (3) times but to no avail, for the reason that Boy Leonor was assigned at a reforestation site in Danao, Cebu province.xiii[13] Alfonso Dator, was the accounting manager of SLEFAICO, Inc., a local cooperative engaged in buying and selling abaca fibers. Dator testified that on October 29, 1993 at 3:00 oclock in the afternoon, a certain Vicente Sabalo, accompanied by their company driver, Benito Genol, proposed to hire the Isuzu cargo truck owned by SLEFAICO, Inc. to haul pieces of coconut lumber from Barangay San Jose to Barangay Soro-soro in Maasin, Southern Leyte. He readily acceded to the proposal inasmuch as the owner of the alleged coconut lumber, according to Sabalo, was Pastor Telen, who is a long time friend and former officemate at the provincial office of the Department of Health. Besides, the fee to be earned from the hauling services meant additional income for the cooperative.xiv[14] At about 6:00 oclock in the evening of the same day, Dator met the Isuzu cargo truck of SLEFAICO, Inc. at the Canturing bridge in Maasin, Southern Leyte, being escorted by a police patrol vehicle, heading towards the municipal town proper. At the municipal hall building of Maasin, he learned that the Isuzu truck was apprehended by the police for the reason that it contained a cargo of Dita and Antipolo lumber without the required permit from the DENR. He explained to the police authorities that the Isuzu cargo truck was hired merely to transport coconut lumber, however, it was impounded at the municipal building just the same.xv[15] Due to the incident Dator lost his job as accounting manager in SLEFAICO, Inc.xvi[16] For his defense, Benito Genol testified that he was employed by the SLEFAICO, Inc. as driver of its Isuzu cargo truck. Aside from transporting abaca fibers, the Isuzu cargo truck was also available for hire.xvii[17] While Genol was having the two tires of the Isuzu cargo truck vulcanized on October 29, 1993 in Barangay Mantahan, Maasin, Southern Leyte, Vicente Sabalo approached him and offered to hire the services of the cargo truck. Genol accompanied Sabalo to the residence of the accounting manager of SLEFAICO, Inc., Alfonso Dator, which was nearby, and the latter agreed to the

proposal of Sabalo to hire the Isuzu cargo truck to haul pieces of coconut lumber from San Jose, Maasin, Southern Leyte, for a fee.xviii[18] At 4:00 oclock in the afternoon of the same day, Genol, Sabalo and a son of Alfonso Dator, proceeded to San Jose after fetching about six (6) haulers along the way in Barangay Soro-soro. Upon arrival in San Jose, Genol remained behind the steering wheel to take a rest. He was unmindful of the actual nature of the lumber that were being loaded. After the loading, Genol was instructed to proceed to Barangay Soro-soro in front of the lumberyard of a certain Jimmy Go. Before the lumber could be unloaded at 8:00 oclock in the evening Genol was approached by Police Station Commander Alejandro Rojas who demanded DENR permit for the lumber. The pieces of lumber were confiscated by Rojas after Genol failed to produce the required permit from the DENR office.xix[19] Vicente Sabalo corroborated the testimonies of the three (3) accused in this case. He testified in substance that he was requested by his cousin, Pastor Telen, to engage the services of a cargo truck to transport sawn pieces of lumber from San Jose to be used in the renovation of his house in Abgao, Maasin, Southern Leyte; that he approached Benito Genol and offered to hire the services of the Isuzu cargo truck that he was driving; that both of them asked the permission of Alfonso Dator who readily acceded to the proposal for a fee of P500.00;xx[20] that he saw Genol remained behind the steering wheel as the loading of the lumber was going on in San Jose; and that the lumber and the Isuzu cargo truck were confiscated in Barangay Soro-soro for failure of his cousin, Pastor Telen, to show to Police Station Commander Alejandro Rojas any written permit from the DENR for the subject lumber.xxi[21] After analyzing the evidence, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, judgment is rendered as follows: 1. CONVICTING the accused PASTOR TELEN beyond reasonable doubt of the offense charged and there being no modifying circumstances, and with the Indeterminate Sentence Law being inapplicable, the herein accused is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA, with the accessory penalties provided by law, which is two (2) degrees higher than PRISION MAYOR maximum, the authorized penalty similar to Qualified Theft, and to pay the costs. His bail for his provisional liberty is hereby cancelled and he shall be committed to the New Bilibid Prisons, Muntinlupa, Metro Manila thru the Abuyog Regional Prisons, Abuyog, Leyte via the Provincial Warden, Maasin, Southern Leyte; 2. ACQUITTING co-accused Alfonso Dator and Benito Genol on reasonable doubt for insufficiency of evidence; and cancelling their bail; 3. CONFISCATING and SEIZING the 1,560.16 board feet of illegal lumber worth P23,500.00 and ORDERING the CENRO Maasin, Southern Leyte to sell the lumber at public auction under proper permission from the Court, with the proceeds thereof turned over to the National Government thru the National Treasury under proper receipt, and to REPORT the fact of sale to

this Court duly covered by documents of sale and other receipts by evidencing the sale within five (5) days from the consummation of sale; and 4. DIRECTING the CENRO authorities to coordinate with its Regional Office for immediate administrative proceedings and determination of any administrative liability of the truck owner, SLEFAICO Inc. if any, otherwise, to release the truck to its owner. SO ORDERED. In his appeal Pastor Telen interpose the following assignments of error: I THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SEC. 68, P. D. 705, AS AMENDED, BEING CONTRARY TO LAW AND THE EVIDENCE ON RECORD AND FOR BEING NOT IN CONFORMITY WITH DENR ADMINISTRATIVE ORDER NO. 79, SERIES OF 1990. II THE LOWER COURT ERRED IN IMPOSING THE ACCUSED-APPELLANT THE PENALTY OF RECLUSION PERPETUA FOR THE ALLEGED VIOLATION OF SEC. 68, P. D. 705, AS AMENDED, IT BEING A PATENTLY ERRONEOUS PENALTY NOT WARRANTED BY ANY PROVISION OF THE REVISED PENAL CODE OR JURISPRUDENCE. III THE LOWER COURT ERRED IN FINDING THAT THE VALUE OF THE CONFISCATED LUMBER IS P23,500.00 FOR NO EVIDENCE OF SUCH VALUE WAS ESTABLISHED DURING THE TRIAL. The appeal is not impressed with merit. It is not disputed that appellant Pastor Telen is the owner of the fifty-one (51) pieces of assorted Antipolo and Dita lumber with a total volume of 1,560.16 board feet. He alleged that the pieces of lumber were cut from the track of land belonging to his mother in San Jose, Maasin, Southern Leyte which he intended to use in the renovation of his house in Barangay Abgao of the same municipality. After having been confiscated by the police, while in transit, in Barangay Sorosoro, appellant Telen failed to produce before the authorities the required legal documents from the DENR pertaining to the said pieces of lumber. The fact of possession by the appellant of the subject fifty-one (51) pieces of assorted Antipolo and Dita lumber, as well as his subsequent failure to produce the legal documents as required under existing forest laws and regulations constitute criminal liability for violation of

Presidential Decree No. 705, otherwise known as the Revised Forestry Code.xxii[22] Section 68 of the code provides: Section 68. Cutting, Gathering and/or Collecting Timber or Other Forest Products Without License.-Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, that in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. Appellant Telen contends that he secured verbal permission from Boy Leonor, Officer-in-Charge of the DENR-CENRO in Maasin, Southern Leyte before cutting the lumber, and that the latter purportedly assured him that written permit was not anymore necessary before cutting soft lumber, such as the Antipolo and Dita trees in this case, from a private track of land, to be used in renovating appellants house, provided that he would plant trees as replacements thereof, which he already did. It must be underscored that the appellant stands charged with the crime of violation of Section 68 of Presidential Decree No. 705, a special statutory law, and which crime is considered mala prohibita. In the prosecution for crimes that are considered mala prohibita, the only inquiry is whether or not the law has been violated.xxiii[23] The motive or intention underlying the act of the appellant is immaterial for the reason that his mere possession of the confiscated pieces of lumber without the legal documents as required under existing forest laws and regulations gave rise to his criminal liability. In any case, the mere allegation of the appellant regarding the verbal permission given by Boy Leonor, Officer in Charge of DENR-CENRO, Maasin, Southern Leyte, is not sufficient to overturn the established fact that he had no legal documents to support valid possession of the confiscated pieces of lumber. It does not appear from the record of this case that appellant exerted any effort during the trial to avail of the testimony of Boy Leonor to corroborate his allegation. Absent such corroborative evidence, the trial court did not commit an error in disregarding the bare testimony of the appellant on this point which is, at best, selfserving.xxiv[24] The appellant cannot validly take refuge under the pertinent provision of DENR Administrative Order No. 79, Series of 1990xxv[25] which prescribes rules on the deregulation of the harvesting, transporting and sale of firewood, pulpwood or timber planted in private lands. Appellant submits that under the said DENR Administrative Order No. 79, no permit is required in the cutting of planted trees within titled lands except Benguet pine and premium species listed

under DENR Administrative Order No. 78, Series of 1987, namely: narra, molave, dao, kamagong, ipil, acacia, akle, apanit, banuyo, batikuling, betis, bolong-eta, kalantas, lanete, lumbayao, sangilo, supa, teak, tindalo and manggis. Concededly, the varieties of lumber for which the appellant is being held liable for illegal possession do not belong to the premium species enumerated under DENR Administrative Order No. 78, Series of 1987. However, under the same DENR administrative order, a certification from the CENRO concerned to the effect that the forest products came from a titled land or tax declared alienable and disposable land must still be secured to accompany the shipment. This the appellant failed to do, thus, he is criminally liable under Section 68 of Presidential Decree No. 705 necessitating prior acquisition of permit and legal documents as required under existing forest laws and regulations. The pertinent portion of DENR Administrative Order No. 79, Series of 1990, is quoted hereunder, to wit: In line with the National Reforestation Program and in order to promote the planting of trees by owners of private lands and give incentives to the tree farmers, Ministry Administrative Order No. 4 dated January 19, 1987 which lifted the restriction in the harvesting, transporting and sale of firewood, pulpwood or timber produced from Ipil-Ipil (leucaenia spp) and Falcate (Albizzia falcataria) is hereby amended to include all other tree species planted in private lands except BENGUET PINE and premium hardwood species. Henceforth, no permit is required in the cutting of planted trees within the titled lands or tax declared A and D lands with corresponding application for patent or acquired through court proceedings, except BENGUET PINE and premium species listed under DENR Administrative Order No 78, Series of 1987, provided, that a certification of the CENRO concerned to the effect that the forest products came from a titled land or tax declared alienable and disposable land is issued accompanying the shipment. Appellant Telen next contends that proof of value of the confiscated pieces of lumber is indispensable, it being the basis for the computation of the penalty prescribed in Article 309 in relation to Article 310 of the Revised Penal Code; and that in the absence of any evidence on record to prove the allegation in the Information that the confiscated pieces of lumber have an equivalent value of P23,500.00 there can be no basis for the penalty to be imposed and hence, he should be acquitted. The appellants contention is untenable. It is a basic rule in criminal law that penalty is not an element of the offense. Consequently, the failure of the prosecution to adduce evidence in support of its allegation in the Information with respect to the value of the confiscated pieces of lumber is not necessarily fatal to its case. This Court notes that the estimated value of the confiscated pieces of lumber, as appearing in the official transmittal letterxxvi[26] of the DENRCENRO, Maasin, Southern Leyte addressed to the Office of the Provincial Prosecutor of the same province, is P23,500.00 which is alleged in the Information. However, the said transmittal letter cannot serve as evidence or as a valid basis for the estimated value of the confiscated pieces of lumber for purposes of computing the proper penalty to be imposed on the appellant considering that it is hearsay and it was not formally offered in evidence contrary to Section 34 of Rule 132 of the Revised Rules of Court.

In the case of People vs. Elizaga,xxvii[27] the accused-appellant therein was convicted of the crimes of homicide and theft, and the value of the bag and its contents that were taken by the accused-appellant from the victim was estimated by the prosecution witness to be P500.00. In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the bag and its contents at P100.00 based on the attendant circumstances of the case. More pertinently, in the case of People vs. Reyes,xxviii[28] this Court held that if there is no available evidence to prove the value of the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed on the accused-appellant should be the minimum penalty corresponding to theft involving the value of P5.00. In the case at bench, the confiscated fifty-one (51) pieces of assorted Dita and Antipolo lumber were classified by the CENRO officials as soft, and therefore not premium quality lumber. It may also be noted that the said pieces of lumber were cut by the appellant, a mere janitor in a public hospital, from the land owned by his mother, not for commercial purposes but to be utilized in the renovation of his house. It does not appear that appellant Telen had been convicted nor was he an accused in any other pending criminal case involving violation of any of the provisions of the Revised Forestry Code (P.D. No. 705, as amended). In view of the attendant circumstances of this case, and in the interest of justice, the basis for the penalty to be imposed on the appellant should be the minimum amount under Article 309 paragraph (6) of the Revised Penal Code which carries the penalty of arresto mayor in its minimum and medium periods for simple theft. Considering that the crime of violation of Section 68 of Presidential Decree No. 705, as amended, is punished as qualified theft under Article 310 of the Revised Penal Code, pursuant to the said decree, the imposable penalty on the appellant shall be increased by two degrees, that is, from arresto mayor in its minimum and medium periods to prision mayor in its minimum and medium periods.xxix[29] Applying the Indeterminate Sentence Law,xxx[30] the penalty to be imposed on the appellant should be six (6) months and one (1) day of prision correccional to six (6) years and one (1) day of prision mayor. WHEREFORE, the decision of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, in Criminal Case No. 1733 is AFFIRMED with the MODIFICATION that appellant Pastor Telen is sentenced to six (6) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

i[1] Penned by Judge Leandro T. Loyao, Jr. Rollo, pp. 12-23.

ii[2] Renumbered Section 78 by Republic Act No. 7161. iii[3] As amended by Presidential Decree No. 1559, and by Executive Order 277, promulgated on July 25, 1987. iv[4] TSN dated June 20, 1995, pp. 4-5. v[5] Id., pp. 5-8. vi[6] TSN dated August 24, 1996, pp. 3-4; Exhibit B. vii[7] Exhibit A. viii[8] TSN dated June 20, 1995, pp. 27-28. ix[9] TSN dated June 10, 1997, pp. 2-4. x[10] Id., pp. 3, 13. xi[11] Id., p. 5. xii[12] Id., p. 6. xiii[13] Id., pp. 10-11. xiv[14] TSN dated January 23, 1997, pp. 6-7. xv[15] Id., p. 9. xvi[16] Id., p. 5. xvii[17] TSN dated August 17, 1998, p. 4. xviii[18] Id., pp. 5-6. xix[19] Id., pp. 7-10. xx[20] TSN dated September 18, 1998, pp. 5-6. xxi[21] Id., pp. 9, 11. xxii[22] Mustang Lumber, Inc. vs. CA, 257 SCRA 430, 446 (1996); People vs. Que, 265 SCRA 721, 730 (1996).

xxiii[23] U.S. vs. Go Chico, 14 Phil. 128,134 (1909). xxiv[24] National Development Co. vs. Workmens Compensation Commission, 19 SCRA 865, 866 (1967). xxv[25] DENR Administrative Order No. 79, Series of 1990 amended DENR Administrative Order No. 6, Series of 1990, amending further DENR Administrative Order No. 86, Series of 1988. xxvi[26] Original Records, p.1. xxvii[27] 86 SCRA 364, 383 (1950). xxviii[28] G.R. No. 38901, October 2, 1933 cited in The Revised Penal Code by Luis B. Reyes, Book II, Twelfth Edition, 1981. xxix[29] Article 61(5), Revised Penal Code. xxx[30] People vs. Simon, 234 SCRA 555, 579-580 (1994).

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 158182 June 12, 2008

SESINANDO MERIDA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CARPIO, J.: The Case This is a petition for review1 of the Decision2 dated 28 June 2002 and the Resolution dated 14 May 2003 of the Court of Appeals. The 28 June 2002 Decision affirmed the conviction of petitioner Sesinando Merida (petitioner) for violation of Section 68,3 Presidential Decree No. 705

(PD 705),4 as amended by Executive Order No. 277. The Resolution dated 14 May 2003 denied admission of petitioner's motion for reconsideration.5 The Facts Petitioner was charged in the Regional Trial Court of Romblon, Romblon, Branch 81 (trial court) with violation of Section 68 of PD 705, as amended, for "cut[ting], gather[ing], collect[ing] and remov[ing]" a lone narra tree inside a private land in Mayod, Ipil, Magdiwang, Romblon (Mayod Property) over which private complainant Oscar M. Tansiongco (Tansiongco) claims ownership.6 The prosecution evidence showed that on 23 December 1998, Tansiongco learned that petitioner cut a narra tree in the Mayod Property. Tansiongco reported the matter to Florencio Royo (Royo), the punong barangay of Ipil. On 24 December 1998,7 Royo summoned petitioner to a meeting with Tansiongco. When confronted during the meeting about the felled narra tree, petitioner admitted cutting the tree but claimed that he did so with the permission of one Vicar Calix (Calix) who, according to petitioner, bought the Mayod Property from Tansiongco in October 1987 under a pacto de retro sale. Petitioner showed to Royo Calix's written authorization signed by Calix's wife.8 On 11 January 1999, Tansiongco reported the tree-cutting to the Department of Environment and Natural Resources (DENR) forester Thelmo S. Hernandez (Hernandez) in Sibuyan, Romblon. When Hernandez confronted petitioner about the felled tree, petitioner reiterated his earlier claim to Royo that he cut the tree with Calix's permission. Hernandez ordered petitioner not to convert the felled tree trunk into lumber. On 26 January 1999, Tansiongco informed Hernandez that petitioner had converted the narra trunk into lumber. Hernandez, with other DENR employees and enforcement officers, went to the Mayod Property and saw that the narra tree had been cut into six smaller pieces of lumber. Hernandez took custody of the lumber,9 deposited them for safekeeping with Royo, and issued an apprehension receipt to petitioner. A larger portion of the felled tree remained at the Mayod Property. The DENR subsequently conducted an investigation on the matter.10 Tansiongco filed a complaint with the Office of the Provincial Prosecutor of Romblon (Provincial Prosecutor) charging petitioner with violation of Section 68 of PD 705, as amended. During the preliminary investigation, petitioner submitted a counter-affidavit reiterating his claim that he cut the narra tree with Calix's permission. The Provincial Prosecutor11 found probable cause to indict petitioner and filed the Information with the trial court (docketed as Criminal Case No. 2207). During the trial, the prosecution presented six witnesses including Tansiongco, Royo, and Hernandez who testified on the events leading to the discovery of and investigation on the treecutting. Petitioner testified as the lone defense witness and claimed, for the first time, that he had no part in the tree-cutting.

The Ruling of the Trial Court In its Decision dated 24 November 2000, the trial court found petitioner guilty as charged, sentenced him to fourteen (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal and ordered the seized lumber forfeited in Tansiongco's favor.12 The trial court dismissed petitioner's defense of denial in view of his repeated extrajudicial admissions that he cut the narra tree in the Mayod Property with Calix's permission. With this finding and petitioner's lack of DENR permit to cut the tree, the trial court held petitioner liable for violation of Section 68 of PD 705, as amended. Petitioner appealed to the Court of Appeals reiterating his defense of denial. Petitioner also contended that (1) the trial court did not acquire jurisdiction over the case because it was based on a complaint filed by Tansiongco and not by a forest officer as provided under Section 80 of PD 705 and (2) the penalty imposed by the trial court is excessive. The Ruling of the Court of Appeals In its Decision dated 28 June 2002, the Court of Appeals affirmed the trial court's ruling but ordered the seized lumber confiscated in the government's favor.13 The Court of Appeals sustained the trial court's finding that petitioner is bound by his extrajudicial admissions of cutting the narra tree in the Mayod Property without any DENR permit. The Court of Appeals also found nothing irregular in the filing of the complaint by Tansiongco instead of a DENR forest officer considering that the case underwent preliminary investigation by the proper officer who filed the Information with the trial court. On the imposable penalty, the Court of Appeals, in the dispositive portion of its ruling, sentenced petitioner to 14 years, 8 months and 1 day to 17 years of reclusion temporal. However, in the body of its ruling, the Court of Appeals held that "the penalty to be imposed on [petitioner] should be (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal,"14 the same penalty the trial court imposed. Petitioner sought reconsideration but the Court of Appeals, in its Resolution dated 14 May 2003, did not admit his motion for having been filed late.15 Hence, this petition. Petitioner raises the following issues: I. WHETHER x x x SECTION 68 OF P.D. 705 AS AMENDED PROHIBITING THE CUTTING, GATHERING, COLLECTING AND REMOVING TIMBER OR OTHER FOREST PRODUCTS FROM ANY FOREST LAND APPLIES TO PETITIONER. II. WHETHER x x x POSSESSION OF THE NARRA TREE CUT IN PRIVATE LAND CONTESTED BY VICAR CALIX AND PRIVATE-COMPLAINANT OSCAR TANSIONGCO IS COVERED BY SECTION 80 OF P.D. 705 AS AMENDED.

III. WHETHER PRIVATE-COMPLAINANT CAN INITIATE THE CHARGE EVEN WITHOUT THE STANDING AUTHORITY COMING FROM THE INVESTIGATING FOREST OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AS MANDATED BY SECTION 80 OF P.D. 705 AS AMENDED. [IV.] WHETHER x x x THE TRIAL COURT ERRED IN TAKING COGNIZANCE OF THE CASE FILED BY PRIVATE-COMPLAINANT BECAUSE IT WAS NOT THE INVESTIGATING OFFICER AS REQUIRED BY SECTION 80 OF P.D. 705 AS AMENDED WHO MUST BE THE ONE TO INSTITUTE THE FILING OF THE SAME.16 In its Comment to the petition, the Office of the Solicitor General (OSG) countered that (1) the trial court acquired jurisdiction over the case even though Tansiongco, and not a DENR forest officer, filed the complaint against petitioner and (2) petitioner is liable for violation of Section 68 of PD 705, as amended. The Issues The petition raises the following issues:17 1) Whether the trial court acquired jurisdiction over Criminal Case No. 2207 even though it was based on a complaint filed by Tansiongco and not by a DENR forest officer; and 2) Whether petitioner is liable for violation of Section 68 of PD 705, as amended. The Ruling of the Court The petition has no merit. The Trial Court Acquired Jurisdiction Over Criminal Case No. 2207 We sustain the OSG's claim that the trial court acquired jurisdiction over Criminal Case No. 2207. The Revised Rules of Criminal Procedure (Revised Rules) list the cases which must be initiated by a complaint filed by specified individuals,18 non-compliance of which ousts the trial court of jurisdiction from trying such cases.19 However, these cases concern only defamation and other crimes against chastity20 and not to cases concerning Section 68 of PD 705, as amended. Further, Section 80 of PD 705 does not prohibit an interested person from filing a complaint before any qualified officer for violation of Section 68 of PD 705, as amended. Section 80 of PD 705 provides in relevant parts: SECTION 80. Arrest; Institution of criminal actions. - x x x x Reports and complaints regarding the commission of any of the offenses defined in this Chapter, not committed in the presence of any forest officer or employee, or any of

the deputized officers or officials, shall immediately be investigated by the forest officer assigned in the area where the offense was allegedly committed, who shall thereupon receive the evidence supporting the report or complaint. If there is prima facie evidence to support the complaint or report, the investigating forest officer shall file the necessary complaint with the appropriate official authorized by law to conduct a preliminary investigation of criminal cases and file an information in Court. (Emphasis supplied) We held in People v. CFI of Quezon21 that the phrase "reports and complaints" in Section 80 refers to "reports and complaints as might be brought to the forest officer assigned to the area by other forest officers or employees of the Bureau of Forest Development or any of the deputized officers or officials, for violations of forest laws not committed in their presence."22 Here, it was not "forest officers or employees of the Bureau of Forest Development or any of the deputized officers or officials" who reported to Hernandez the tree-cutting in the Mayod Property but Tansiongco, a private citizen who claims ownership over the Mayod Property. Thus, Hernandez cannot be faulted for not conducting an investigation to determine "if there is prima facie evidence to support the complaint or report."23 At any rate, Tansiongco was not precluded, either under Section 80 of PD 705 or the Revised Rules, from filing a complaint before the Provincial Prosecutor for petitioner's alleged violation of Section 68 of PD 705, as amended. For its part, the trial court correctly took cognizance of Criminal Case No. 2207 as the case falls within its exclusive original jurisdiction.24 Petitioner is Liable for Cutting Timber in Private Property Without Permit Section 68, as amended, one of the 12 acts25 penalized under PD 705, provides: SECTION 68. Cutting, Gathering and/or Collecting Timber, or Other Forest Products Without License. - Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. The court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. (Emphasis supplied)

Section 68 penalizes three categories of acts: (1) the cutting, gathering, collecting, or removing of timber or other forest products from any forest land without any authority; (2) the cutting, gathering, collecting, or removing of timber from alienable or disposable public land, or from private land without any authority;26 and (3) the possession of timber or other forest products without the legal documents as required under existing forest laws and regulations.27 Petitioner stands charged of having "cut, gathered, collected and removed timber or other forest products from a private land28 without x x x the necessary permit x x x " thus his liablity, if ever, should be limited only for "cut[ting], gather[ing], collect[ing] and remov[ing] timber," under the second category. Further, the prosecution evidence showed that petitioner did not perform any acts of "gathering, collecting, or removing" but only the act of "cutting" a lone narra tree. Hence, this case hinges on the question of whether petitioner "cut x x x timber" in the Mayod Property without a DENR permit.29 We answer in the affirmative and thus affirm the lower courts' rulings. On the question of whether petitioner cut a narra tree in the Mayod Property without a DENR permit, petitioner adopted conflicting positions. Before his trial, petitioner consistently represented to the authorities that he cut a narra tree in the Mayod Property and that he did so only with Calix's permission. However, when he testified, petitioner denied cutting the tree in question. We sustain the lower courts' rulings that petitioner's extrajudicial admissions bind him.30 Petitioner does not explain why Royo and Hernandez, public officials who testified under oath in their official capacities, would lie on the stand to implicate petitioner in a serious criminal offense, not to mention that the acts of these public officers enjoy the presumption of regularity. Further, petitioner does not deny presenting Calix's authorization to Royo and Hernandez as his basis for cutting the narra tree in the Mayod Property. Petitioner has no use of Calix's authorization if, as he claimed during the trial, he did not cut any tree in the Mayod Property. We further hold that the lone narre tree petitioner cut from the Mayod Property constitutes "timber" under Section 68 of PD 705, as amended. PD 705 does not define "timber," only "forest product" (which circuitously includes "timber.")31 Does the narra tree in question constitute "timber" under Section 68? The closest this Court came to defining the term "timber" in Section 68 was to provide that "timber," includes "lumber" or "processed log."32 In other jurisdictions, timber is determined by compliance with specified dimensions33 or certain "stand age" or "rotation age."34 In Mustang Lumber, Inc. v. Court of Appeals,35 this Court was faced with a similar task of having to define a term in Section 68 of PD 705 - "lumber" - to determine whether possession of lumber is punishable under that provision. In ruling in the affirmative, we held that "lumber" should be taken in its ordinary or common usage meaning to refer to "processed log or timber," thus: The Revised Forestry Code contains no definition of either timber or lumber. While the former is included in forest products as defined in paragraph (q) of Section 3, the latter is found in paragraph (aa) of the same section in the definition of "Processing plant," which reads:

(aa) Processing plant is any mechanical set-up, machine or combination of machine used for the processing of logs and other forest raw materials into lumber, veneer, plywood, wallboard, blackboard, paper board, pulp, paper or other finished wood products. This simply means that lumber is a processed log or processed forest raw material. Clearly, the Code uses the term lumber in its ordinary or common usage. In the 1993 copyright edition of Webster's Third New International Dictionary, lumber is defined, inter alia, as "timber or logs after being prepared for the market." Simply put, lumber is a processed log or timber. It is settled that in the absence of legislative intent to the contrary, words and phrases used in a statute should be given their plain, ordinary, and common usage meaning. And in so far as possession of timber without the required legal documents is concerned, Section 68 of PD No. 705, as amended, makes no distinction between raw and procesed timber. Neither should we.36 x x x x (Italicization in the original; boldfacing supplied) We see no reason why, as in Mustang, the term "timber" under Section 68 cannot be taken in its common acceptation as referring to "wood used for or suitable for building or for carpentry or joinery."37 Indeed, tree saplings or tiny tree stems that are too small for use as posts, panelling, beams, tables, or chairs cannot be considered timber.38 Here, petitioner was charged with having felled a narra tree and converted the same into "several pieces of sawn lumber, about three (3) pcs. 2x16x6 and three (3) pcs. 2x18x7 x x x consisting of 111 board feet x x x." These measurements were indicated in the apprehension receipt Hernandez issued to petitioner on 26 January 1999 which the prosecution introduced in evidence.39 Further, Hernandez testified that the larger portion of the felled log left in the Mayod Property "measured 76 something centimeters [at the big end] while the smaller end measured 65 centimeters and the length was 2.8 meters."40 Undoubtedly, the narra tree petitioner felled and converted to lumber was "timber" fit "for building or for carpentry or joinery" and thus falls under the ambit of Section 68 of PD 705, as amended. The Penalty Imposable on Petitioner Violation of Section 68 of PD 705, as amended, is punishable as Qualified Theft under Article 310 in relation to Article 309 of the Revised Penal Code (RPC), thus: Art. 310. Qualified theft. - The crime of qualified theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article x x x. Art. 309. Penalties. - Any person guilty of theft shall be punished by:

1. The penalty of prisin mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisin mayor or reclusin temporal, as the case may be. 2. The penalty of prisin correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos. 3. The penalty of prisin correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos. 4. Arresto mayor in its medium period to prisin correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos. 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos. 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos. 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provisions of any of the five preceding subdivisions shall be made applicable. . 8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family. The Information filed against petitioner alleged that the six pieces of lumber measuring 111 board feet were valued at P3,330. However, if the value of the log left at the Mayod Property is included, the amount increases to P20,930.40. To prove this allegation, the prosecution relied on

Hernandez's testimony that these amounts, as stated in the apprehension receipt he issued, are his "estimates" based on "prevailing local price."41 This evidence does not suffice. To prove the amount of the property taken for fixing the penalty imposable against the accused under Article 309 of the RPC, the prosecution must present more than a mere uncorroborated "estimate" of such fact.42 In the absence of independent and reliable corroboration of such estimate, courts may either apply the minimum penalty under Article 309 or fix the value of the property taken based on the attendant circumstances of the case.43 In People v. Dator44 where, as here, the accused was charged with violation of Section 68 of PD 705, as amended, for possession of lumber without permit, the prosecution's evidence for the lumber's value consisted of an estimate made by the apprehending authorities whose apparent lack of corroboration was compounded by the fact that the transmittal letter for the estimate was not presented in evidence. Accordingly, we imposed on the accused the minimum penalty under Article 309(6)45 of the RPC.46 Applying Dator in relation to Article 310 of the RPC and taking into account the Indeterminate Sentence Law, we find it proper to impose on petitioner, under the circumstances obtaining here, the penalty of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, four (4) months and twenty-one (21) days of prision correcional, as maximum. WHEREFORE, we AFFIRM the Decision dated 28 June 2002 and the Resolution dated 14 May 2003 of the Court of Appeals with the modification that petitioner Sesinando Merida is sentenced to four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, four (4) months and twenty-one (21) days of prision correcional, as maximum. SO ORDERED. Puno, C.J., Chairperson, Corona, Azcuna, Leonardo-de Castro, JJ., concur.

Footnotes
1

Under Rule 45 of the 1997 Rules of Civil Procedure.

Penned by Associate Justice Eliezer R. De Los Santos with Associate Justices Cancio C. Garcia (a retired member of this Court) and Marina L. Buzon, concurring.
3

Re-numbered as Section 77 under Section 7, Republic Act No. 7161. The Revised Forestry Code. Filed by petitioner's new counsel, Atty. Marcelino P. Arias. The Information alleged (CA rollo, p. 10):

That on or about the 23rd day of December 1998, in barangay Ipil, municipality of Magdiwang, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to gain, did then and there willfully, unlawfully, feloniously cut, gather, collect, remove and/or caused to be cut, gathered and removed one (1) narra tree [from] the private land owned by OSCAR M. TANSIONGCO and converted the same into several pieces of sawn lumber, about three (3) pcs. 2x16x6 and three (3) pcs. 2x18x7 narra sawn lumber were confiscated by the elements of the DENR personnel consisting of 111 board feet, valued in the sum of P3,330.00, Philippine currency, including the remaining felled narra tree showing the total amount of P20,930.40 due to the government, without having first secured and obtained the necessary permit or license and/or legal supporting documents from the proper authorities.
7

Other parts of the records place this date on 26 December 1998. Imelda Muros.

Valued at P3,330.00. If a larger part of the narra tree, left at the Mayod Property, is included in the valuation, the total amount is P20,930.40. The Information filed against petitioner alleged the higher amount.
10

The records do not contain the results of the investigation. Senior State Prosecutor-OIC PPO Francisco F. Benedicto, Jr. The dispositive portion of the ruling provides (rollo, p. 31): WHEREFORE, this Court finds the accused SESINANDO MERIDA GUILTY beyond reasonable doubt of the crime charged in the aforementioned Information, dated January 28, 2000, and hereby sentences him to an indeterminate sentence of from fourteen (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal, and to pay the costs.

11

12

13

The dispositive portion of the ruling provides (id. at 51): WHEREFORE, premises considered, the 24 November 2000 trial court decision is AFFIRMED with MODIFICATION. Defendant-appellant is sentenced to an indeterminate penalty of 14 years, 8 months and 1 day of reclusion temporal as minimum to 17 years of reclusion temporal as maximum. The forest products derived from the narra tree, including the 6 pieces of lumber, are confiscated in favor of the government.

14

Id. at 51. The Court of Appeals entered judgment on 27 August 2002.

15

16

Rollo, p. 14.

17

The OSG does not claim that this Court is precluded from reviewing the Court of Appeals' rulings for having attained finality. At any rate, the Court resolved to give due course to the petition in the interest of justice taking into account the nature of the case and the issues raised for resolution.
18

Section 5, Rule 110. See People v. Mandia, 60 Phil. 372 (1934); People v. Trinidad, 58 Phil. 163 (1933). Adultery, Concubinage, Seduction, Abduction, and Acts of Lasciviousness. G.R. No. 46772, 13 February 1992, 206 SCRA 187. Id. at 194.

19

20

21

22

23

It cannot be said, however, that Hernandez failed to act on Tansiongco's report as Hernandez conducted field investigation, oversaw the confiscation of the lumber, and took part in the subsequent DENR investigation.
24

Under Section 20 in relation to Section 32(2) of Batas Pambansa Blg. 129 as amended by Republic Act No. 7691, Regional Trial Courts are vested with exclusive original jurisdiction over offenses punishable with imprisonment exceeding six years. Here, the offense for which petitioner was charged is punishable by reclusion temporal in its medium and maximum periods (that is, 14 years, 8 months and 1 day to 20 years) and thus falls under the RTC Romblon's exclusive original jurisdiction.
25

The other acts penalized under PD 705, as amended by Presidential Decree No. 1559 and re-numbered by RA 7161, are: cutting, gathering and/or collecting timber or other products without license (Section 77); unlawful occupation or destruction of forest lands (Section 78); pasturing livestock (Section 79); illegal occupation of national parks system and recreation areas and vandalism therein (Section 80); destruction of wildlife resources (Section 81); survey by unauthorized person (Section 82); misclassification and survey by government official or employee (Section 83); tax declaration on real property (Section 84); coercion and influence (Section 85); unlawful possession of implements and devices used by forest officers (Section 86); payment, collection and remittance of forest charges (Section 87); and sale of wood products (Section 88).
26

Thus, there is no merit in petitioner's claim that Section 68 of PD 705 does not penalize the cutting of timber in private land.
27

In Mustang Lumber, Inc. v. Court of Appeals, (G.R. No. 104988, 18 June 1996, 257 SCRA 430), the acts falling under the first and second groups were lumped together. The elements for the criminal acts under the first and second groups are: (1) that the accused

cut, gathered, collected, or removed timber of other forest products; (2) that the timber or other forest products cut, gathered, collected, or removed belong to the government or to any private individual; and (3) that the cutting, gathering, collecting, or removing was without authority under a license agreement, lease, license, or permit granted by the state (People v. CFI of Quezon, G.R. No. 46772, 13 February 1992, 206 SCRA 187).
28

It cannot be determined from the records if the Mayod Property is registered.

29

Under DENR Administrative Order No. 2000-21, dated 28 February 2000, private land owners are required to obtain a Special Private Land Timber Permit (SPLTP) from the DENR to cut, gather and utilize premium hardwood species, whether planted or naturally-grown.
30

Section 26, Rule 130 of the Rules of Court provides: "The act, declaration or omission of a party as to a relevant fact may be given in evidence against him."
31

Section 3(q), PD 705 provides: "Forest product means timber, pulpwood, firewood, bark, tree top, resin, gum, wood, oil, honey, beeswax, nipa, rattan, or other forest growth such as grass, shrub, and flowering plant, the associated water, fish, game, scenic, historical, recreational and geologic resources in forest lands." (Emphasis supplied)
32

Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430.
33

In the Pacific and Northwestern Region (Region 6) of the United States Forest Service, timber utilization limits are set as follows: length - 8 feet; diameter (breast-height) - 9 inches; and top diameter - 4 inches (see A Review of the Forest Practices Code of British Columbia and Fourteen other Jurisdictions Background Report - 1995 at http://www.for.gov.bc.ca/tasb/legsregs/westland/report/2-3.htm [British Columbia Report]).
34

In the Baden-Wurttemberg State of the Federal Republic of Germany, the "stand ages" are: 50 years for coniferous stands and 70 years for deciduous stands (Section 16 of the Forest Law). In Sweden, the following are the minimum rotation age: conifer stands - 45 years to 100 years (depending on the quality of the site); hardwood stands - 35 years; and oak and beech trees - 100 years (see British Columbia Report).
35

Supra. Supra at 448. Webster's Third New International Dictionary (1996 ed.). Wood pulps from timber can also be used for paper production.

36

37

38

39

Exh. "E." RTC Decision, p. 4; Rollo, p. 25. CA Decision, p. 8; Rollo, p. 42.

40

41

42

Lucas v. Court of Appeals, 438 Phil. 530 (2002). See also People v. Elizaga, 86 Phil. 364 (1950).
43

People v. Dator, 398 Phil. 109 (2000). The Court deems it improper to take judicial notice of the selling price of narra at the time of the commission of the offense in this case. Such evidence would both be unreliable and inconclusive considering the lack of independent and competent source of such information.
44

Supra. Arresto mayor in its minimum and medium periods.

45

46

The Court also took into account the following circumstances: (1) the accused, a janitor, cut the pieces of soft lumber from his mother's landholding for use in renovating his house and (2) the accused had no prior record for violation of PD 705. Here, petitioner also appears to have no record for violation of PD 705.

The Lawphil Project - Arellano Law Foundation

FIRST DIVISION

[G.R. No. 148825. December 27, 2002]


PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN CANTON, appellant. DECISION DAVIDE, JR., C.J.: Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of Pasay City with the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, under an Informationxxx[1] whose accusatory portion reads as follows: That on February 12, 1998 at the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable Court, the above named accused did then and there willfully, unlawfully and feloniously has in her possession NINE HUNDRED NINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE (998.2809) GRAMS of methamphetamine hydrochloride, a regulated drug, without the corresponding prescription or license. CONTRARY TO LAW. The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court. SUSAN entered a plea of not guilty upon her arraignment. At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker Mylene Cabunoc, and SPO4 Victorio de los Reyes. For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution witness Mylene Cabunoc recalled to be presented as hostile witness. It opted not to let SUSAN take the witness stand. The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m., SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon, Vietnam.xxx[2] When she passed through the metal detector booth, a beeping sound was emitted. Consequently, Mylene Cabunoc, a civilian employee of the National Action Committee on Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her attention, saying Excuse me maam, can I search you?xxx[3] Upon frisking SUSAN, Mylene felt something bulging at her abdominal area. Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and noticed that the package contained what felt like rice granules.xxx[4] When Mylene passed her hand, she felt similar packages in front of SUSANs genital area and thighs. She asked SUSAN to bring out the packages, but the latter refused and

said: Money, money only. Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her supervisor on duty.xxx[5] SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to a comfort room for a thorough physical examination. Upon further frisking in the ladies room, Mylene touched something in front of SUSANs sex organ. She directed SUSAN to remove her skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discovered three packages individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily handed to them.xxx[6] The first was taken from SUSANs abdominal area; the second, from in front of her genital area; and the third, from her right thigh.xxx[7] Mylene turned over the packages to SPO4 De los Reyes.xxx[8] The latter forthwith informed his superior officer Police Superintendent Daniel Santos about the incident. Together with SUSAN, they brought the gray plastic packs to the customs examination table, opened the same and found that they contained white crystalline substancesxxx[9] which, when submitted for laboratory examination, yielded positive results for methamphetamine hydrochloride or shabu, a regulated drug.xxx[10] For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office, testified that no investigation was ever conducted on SUSAN.xxx[11] However, SUSAN signed a receipt of the following articles seized from her: (1) three bags of methamphetamine hydrochloride or shabu approximately 1,100 grams; (2) one American passport bearing Number 700389994; (3) one Continental Micronesia plane ticket with stock control number 0414381077; and (4) two panty girdles.xxx[12] He said that he informed SUSAN of her constitutional rights but admitted that she did not have a counsel when she signed the receipt.xxx[13] Yet he told her that she had the option to sign or not to sign the receipt.xxx[14] When recalled as witness for the defense, Mylene merely reiterated the circumstances surrounding the arrest and search of SUSAN and the seizure of the prohibited items found on her person.xxx[15] After consideration of the evidence presented, the trial court rendered a decisionxxx[16] finding SUSAN guilty beyond reasonable doubt of the offense of violation of Section 16 of Article III of Republic Act No. 6425, as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1 million. SUSAN filed a Motion for Reconsideration and/or New Trial,xxx[17] alleging therein that the trial judge erred in (1) giving weight to the medical certificate executed by a certain Dr. Ma. Bernadette Arcena because it was not presented in court nor marked or admitted, and is therefore hearsay evidence; (2) upholding the presumption of regularity in the performance of duty of police officers, since lady frisker Mylene Cabunoc is not even a police officer; (3) making statements which gave the impression that the burden of proof was shifted to the accused; and (4) deliberately ignoring the decisive issue of how the evidence was secured. SUSAN also assailed the propriety of the search and seizure without warrant on the ground that the seized items were not in plain view. Furthermore, alleging bias and prejudice on the part of the trial judge, SUSAN filed a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for Reconsideration and/or New Trial.xxx[18]

After conducting a hearing on 24 November 2000 to resolve appellants Motion for Reconsideration and/or New Trial, as well as the Motion to Inhibit the Judge, the trial court issued an orderxxx[19] on 26 November 2001 denying the motions. According to the trial judge (1) he explained to SUSANs counsel the effects of the filing of a motion for reconsideration, but the latter chose to magnify the judges statement which was uttered in jest; (2) SUSANs conviction was not based on the medical report which was not presented in court; (3) there was no violation of SUSANs constitutional rights because she was never interrogated during her detention without counsel; and (4) the specimens seized from her were found after a routine frisk at the airport and were therefore acquired legitimately pursuant to airport security procedures. Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to the trial court the following errors: (1) in justifying the warrantless search against her based on the alleged existence of probable cause; (2) in holding that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest; (3) in not ruling that the frisker went beyond the limits of the Terry search doctrine; (4) in not ruling that SUSAN was under custodial investigation without counsel; (5) in admitting to the records of the case the report of Dr. Ma. Bernadette Arcena, which was not testified on or offered in evidence, and using the same in determining her guilt; (6) in justifying under the rule on judicial notice its cognizance of the medical report that has not been offered in evidence; and (7) in applying the ruling in People v. Johnson.xxx[20] For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her in the ladies room was constitutionally infirmed because it was not incidental to an arrest. The arrest could not be said to have been made before the search because at the time of the strip search, the arresting officers could not have known what was inside the plastic containers hidden on her body, which were wrapped and sealed with gray tape. At that point then, they could not have determined whether SUSAN was actually committing a crime. The strip search was therefore nothing but a fishing expedition. Verily, it is erroneous to say that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest. For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in Terry v. Ohio,xxx[21] such stop and frisk search should have been limited to the patting of her outer garments in order to determine whether she was armed or dangerous and therefore a threat to the security of the aircraft. For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a package at her abdominal area, started inquiring about the contents thereof, detained her, and decided to submit her to a strip search in the ladies room, she was under custodial investigation without counsel, which was violative of Section 12, Article III of the Constitution. For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the medical report executed by Dr. Ma. Bernadette Arcena on the ground that it was neither testified on nor offered in evidence.

Lastly, SUSAN questions the application of People v. Johnsonxxx[22] because of its sweeping statement allowing searches and seizures of departing passengers in airports in view of the gravity of the safety interests involved. She stresses that the pertinent case should have been Katz v. United States,xxx[23] which upholds the Fourth Amendment of the United States of America that protects people and not places. In its Appellants Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found flagrante delicto in possession of a regulated drug without being authorized by law. Thus, the case falls squarely within the exception, being a warrantless search incidental to a lawful arrest. Moreover, SUSAN voluntarily submitted herself to the search and seizure when she allowed herself to be frisked and brought to the comfort room for further inspection by airport security personnel. It likewise maintains that the methamphetamine hydrochloride seized from SUSAN during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures. Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG argues that SUSANs conviction was not solely based on the questioned document but also on the fact that she was caught flagrante delicto in possession of a regulated drug without being authorized by law. Consequently, it supports SUSANs conviction but recommends the reduction of the fine from P1 million to P100,000. We affirm SUSANs conviction. We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as well as the arrest of SUSAN, were violative of her constitutional rights. Sections 2 and 3(2) of Article III of the 1987 Constitution 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. Sec. 3. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. What constitutes a reasonable or unreasonable search in any particular case is a judicial question, determinable from a consideration of the circumstances involved. The rule is that the Constitution bars State intrusions to a person's body, personal effects or residence except if

conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court. xxx[24] The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest.xxx[25] I. The search conducted on SUSAN was not incidental to a lawful arrest. We do not agree with the trial court and the OSG that the search and seizure conducted in this case were incidental to a lawful arrest. SUSANs arrest did not precede the search. When the metal detector alarmed while SUSAN was passing through it, the lady frisker on duty forthwith made a pat down search on the former. In the process, the latter felt a bulge on SUSANs abdomen. The strip search that followed was for the purpose of ascertaining what were the packages concealed on SUSANs body. If ever at the time SUSAN was deprived of her will and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as amended, arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. As pointed out by the appellant, prior to the strip search in the ladies room, the airport security personnel had no knowledge yet of what were hidden on SUSANs body; hence, they did not know yet whether a crime was being committed. It was only after the strip search upon the discovery by the police officers of the white crystalline substances inside the packages, which they believed to be shabu, that SUSAN was arrested. The search cannot, therefore, be said to have been done incidental to a lawful arrest. In a search incidental to a lawful arrest, the law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed.xxx[26] II. The scope of a search pursuant to airport security procedure is not confined only to search for weapons under the Terry search doctrine. The Terry search or the stop and frisk situation refers to a case where a police officer approaches a person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest of effective crime prevention and detection. To assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefully limited search of the outer clothing of such person to discover weapons which might be used to assault him.xxx[27] In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows: SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: Holder hereof and his hand-carried

luggage(s) are subject to search for , and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft, which shall constitute a part of the contract between the passenger and the air carrier. This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex D of her Brief, the afore-quoted provision is stated in the Notice to All Passengers located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances. In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society.xxx[28] Thus, the strip search in the ladies room was justified under the circumstances. III. The ruling in People v. Johnson is applicable to the instant case. The case of People v. Johnson, which involves similar facts and issues, finds application to the present case. That case involves accused-appellant Leila Johnson, who was also a departing passenger bound for the United States via Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose task was to frisk departing passengers, employees and crew to check for weapons, bombs, prohibited drugs, contraband goods and explosives. When Olivia frisked Leila, the former felt something hard on the latters abdominal area. Upon inquiry, Leila explained that she needed to wear two panty girdles, as she had just undergone an operation as a result of an ectopic pregnancy. Not satisfied with the explanation, Olivia reported the matter to her superior, who then directed her to take Leila to the nearest womens room for inspection. In the comfort room, Leila was asked to bring out the thing under her girdle. She acceded and brought out three plastic packs which contained a total of 580.2 grams of methamphetamine hydrochloride or shabu. This Court ruled that the packs of methamphetamine hydrochloride seized during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures and are therefore admissible in evidence against Leila. Corollarily, her subsequent arrest, although likewise without warrant, was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. The Court held in this wise: Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport

security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nations airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. SUSANs reliance on Katz v. U.S.xxx[29] is misplaced. The facts and circumstances of that case are entirely different from the case at bar. In that case, the accused was convicted in the United States District Court for the Southern District of California of transmitting wagering information by telephone. During the trial, the government was permitted, over the accuseds objection, to introduce evidence of accuseds end of telephone conversations, which was overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he placed his calls. The Court of Appeals for the Ninth Circuit affirmed the conviction. On certiorari, however, the Supreme Court of the United States of America reversed the decision, ruling that antecedent judicial authorization, which was not given in the instant case, was a constitutional precondition of the kind of electronic surveillance involved. It ruled that what a person knowingly exposes to the public, even in his own house or office, is not a subject the Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The maxim stare decisis et non quieta movere invokes adherence to precedents and mandates not to unsettle things which are established. When the court has once laid down a principle of law as applicable to a certain state of facts, it must adhere to that principle and apply it to all future cases where the facts are substantially the same.xxx[30] There being a disparity in the factual milieu of Katz v. U.S. and the instant case, we cannot apply to this case the ruling in Katz. IV. The appellant, having been caught flagrante delicto, was lawfully arrested without a warrant. Section 5, Rule 113 of the Rules of Court, as amended, provides: 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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (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 is 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) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSAN resulted in the discovery and recovery of three packages containing white crystalline substances, which upon examination yielded positive results for methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless search and seizure were legal. Armed with the knowledge that SUSAN was committing a crime, the airport security personnel and police authorities were duty-bound to arrest her. As held in People v. Johnson, her subsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. V. The constitutional right to counsel afforded an accused under custodial investigation was not violated. Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under custodial investigation or is in custody interrogation.xxx[31] Custodial investigation refers to the 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.xxx[32] This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him.xxx[33] And the right to counsel attaches upon the start of such investigation.xxx[34] The objective is to prohibit incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.xxx[35] In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial investigation was conducted after SUSANs arrest. She affixed her signature to the receipt of the articles seized from her, but before she did so, she was told that she had the option to sign or not to sign it. In any event, her signature to the packages was not relied upon by the prosecution to prove its case. Moreover, no statement was taken from her during her detention and used in evidence against her.xxx[36] Hence, her claim of violation of her right to counsel has no leg to stand on. VI. The admission of the medical report was erroneous.

SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the physical and medical examination conducted upon appellants request, which contained the following: On subsequent examinations, she was seen behaved and cooperative. She related that she was an illegitimate daughter, married, but divorced in 1995. She verbalized, I gamble like an addict. I gambled since I was young and I lost control of myself when I played cards. When I lost control, I want my money back. I owe other people lots of money. I lost all the cash of my husband. This is the first time I carried shabu. I need the money. She denied having any morbid thoughts and perceptual disturbances. (Emphasis supplied). This argument is meritorious. The admission of the questioned document was erroneous because it was not properly identified. Nevertheless, even without the medical report, appellants conviction will stand, as the courts finding of guilt was not based on that document. VII. SUSANs conviction and the penalty imposed on her are correct. Having found the warrantless search and seizure conducted in this case to be valid, we do not hesitate to rule that that the three packages of shabu recovered from SUSAN are admissible in evidence against her. Supported by this evidence and the testimonies of the prosecution witnesses, her conviction must inevitably be sustained. Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, provides: SEC. 16. Possession or Use of Regulated Drugs.--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 shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof. SEC. 20. Application of Penalties, confiscation and Forfeiture of the Proceeds or Instruments of the Crime.--The penalties for offenses under Section 3,4,7, 8, and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved [are] in any of the following quantities: 3. 200 grams or more of shabu or methylamphetamine hydrochloride. There being no aggravating nor mitigating circumstance, the proper penalty is reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code.

As regards the fine, courts may fix any amount within the limits established by law. For possession of regulated drugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net weight of methamphetamine hydrochloride found in the possession of SUSAN, the trial courts imposition of fine in the amount of P1 million is well within the range prescribed by law. VIII. The other items seized from the appellant should be returned to her. Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the following: SEC. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. Clearly, the seizure of SUSANs passport, plane tickets, and girdles exceeded the limits of the afore-quoted provision. They, therefore, have to be returned to her.xxx[37] IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City, Branch 110, in Criminal Case No. 98-0189 finding appellant SUSAN CANTON guilty beyond reasonable doubt of the violation of Section 16, Article III of the Dangerous Act of 1972 (Republic Act No. 6425), as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000) and the costs is hereby AFFIRMED. The appellants passport, plane tickets, and girdles are hereby ordered to be returned to her. Costs de oficio. SO ORDERED. Vitug, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

EN BANC [G.R. No. 129296. September 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABE VALDEZ y DELA CRUZ, accused-appellant. DECISION
QUISUMBING, J.:

For automatic review is the decisionxxx[1] promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable doubt for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of death by lethal injection. In an Information dated September 26, 1996, appellant was charged as follows:"That on or about September 25, 1996, at Sitio Bulan, Barangay Sawmill, Municipality of Villaverde, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, who was caught in flagrante delicto and without authority of law, did then and there wilfully (sic), unlawfully and feloniously plant, cultivate and culture seven (7) fully grown marijuana plants known as Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic) manufactured or derived, to the damage and prejudice of the government of the Republic of the Philippines. "That the property where the said seven (7) fully grown marijuana plants were planted, cultivated and cultured shall be confiscated and escheated in favor of the government. "CONTRARY TO LAW."xxx[2] On November 15, 1996, appellant was arraigned and, with assistance of counsel, pleaded not guilty to the charge. Trial on the merits then ensued. The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the police force of Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m. of September 24, 1996, he received a tip from an unnamed informer about the presence of a marijuana plantation, allegedly owned by appellant at Sitio Bulan, Ibung, Villaverde, Nueva Vizcaya.xxx[3] The prohibited plants were allegedly planted close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to verify the report. The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I. Balut. Inspector Parungao gave them specific instructions to "uproot said marijuana plants and arrest the cultivator of same.xxx[4] At approximately 5:00 o'clock A.M. the following day, said police team, accompanied by their informer, left for the site where the marijuana plants were allegedly being grown. After a threehour, uphill trek from the nearest barangay road, the police operatives arrived at the place pinpointed by their informant. The police found appellant alone in his nipa hut. They, then, proceeded to look around the area where appellant had his kaingin and saw seven (7) five-foot

high, flowering marijuana plants in two rows, approximately 25 meters from appellant's hut.xxx[5] PO2 Balut asked appellant who owned the prohibited plants and, according to Balut, the latter admitted that they were his.xxx[6] The police uprooted the seven marijuana plants, which weighed 2.194 kilograms.xxx[7] The police took photos of appellant standing beside the cannabis plants.xxx[8] Appellant was then arrested. One of the plants, weighing 1.090 kilograms, was sent to the Philippine National Police Crime Laboratory in Bayombong, Nueva Vizcaya for analysis.xxx[9] Inspector Prevy Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon microscopic examination of said plant, she found cystolitic hairs containing calcium carbonate, a positive indication for marijuana.xxx[10] She next conducted a chemical examination, the results of which confirmed her initial impressions. She found as follows: "SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected marijuana plant placed inside a white sack with markings. xxx "FINDINGS: Qualitative examination conducted on the above stated specimen gave POSITIVE result to the test for Marijuana, a prohibited drug."xxx[11] The prosecution also presented a certification from the Department of Environment and Natural Resources that the land cultivated by appellant, on which the growing marijuana plants were found, was Lot 3224 of Timberland Block B, which formed part of the Integrated Social Forestry Area in Villaverde, Nueva Vizcaya.xxx[12] This lot was part of the public domain. Appellant was acknowledged in the certification as the occupant of the lot, but no Certificate of Stewardship had yet been issued in his favor.xxx[13] As its sole witness, the defense presented appellant. He testified that at around 10:00 o'clock A.M., September 25, 1996, he was weeding his vegetable farm in Sitio Bulan when he was called by a person whose identity he does not know. He was asked to go with the latter to "see something."xxx[14] This unknown person then brought appellant to the place where the marijuana plants were found, approximately 100 meters away from his nipa hut.xxx[15] Five armed policemen were present and they made him stand in front of the hemp plants. He was then asked if he knew anything about the marijuana growing there. When he denied any knowledge thereof, SPO2 Libunao poked a fist at him and told him to admit ownership of the plants.xxx[16] Appellant was so nervous and afraid that he admitted owning the marijuana.xxx[17] The police then took a photo of him standing in front of one of the marijuana plants. He was then made to uproot five of the cannabis plants, and bring them to his hut, where another photo was taken of him standing next to a bundle of uprooted marijuana plants.xxx[18] The police team then brought him to the police station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of Barangay Sawmill, accompanied the police officers. Pascua, who bore a grudge against him, because of his refusal to participate in the former's illegal logging activities, threatened him to admit owning the marijuana, otherwise he would "be put in a bad situation."xxx[19] At the police headquarters, appellant reiterated that he knew nothing about the marijuana plants seized by the police.xxx[20]

On cross-examination, appellant declared that there were ten other houses around the vicinity of his kaingin, the nearest house being 100 meters away.xxx[21] The latter house belonged to one Carlito (Lito) Pascua, an uncle of the barangay peace officer who had a grudge against him. The spot where the marijuana plants were found was located between his house and Carlito Pascua's.xxx[22] The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was offered to rebut appellant's claim that the marijuana plants were not planted in the lot he was cultivating.xxx[23] Tipay presented a sketch he made,xxx[24] which showed the location of marijuana plants in relation to the old and new nipa huts of appellant, as well as the closest neighbor. According to Tipay, the marijuana plot was located 40 meters away from the old hut of Valdez and 250 meters distant from the hut of Carlito Pascua.xxx[25] Tipay admitted on cross-examination that no surveyor accompanied him when he made the measurements.xxx[26] He further stated that his basis for claiming that appellant was the owner or planter of the seized plants was the information given him by the police informer and the proximity of appellant's hut to the location of said plants.xxx[27] Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and ownership of marijuana plants as follows: "WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating marijuana plants punishable under section 9 of the Dangerous Drugs Act of 1972, as amended, accused is hereby sentenced to death by lethal injection. Costs against the accused. "SO ORDERED."xxx[28] Appellant assigns the following errors for our consideration: I THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY BEING PRODUCTS OF AN ILLEGAL SEARCH. II THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE INADMISSIBILITY OF THE CORPUS DELICTI AND THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE

THAT THE LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS A PUBLIC LAND ON THE ASSUMPTION THAT INDEED APPELLANT PLANTED THE SUBJECT MARIJUANA.xxx[29] Simply stated, the issues are: (1) (2) (3) (4) Was the search and seizure of the marijuana plants in the present case lawful? Were the seized plants admissible in evidence against the accused? Has the prosecution proved appellant's guilt beyond reasonable doubt? Is the sentence of death by lethal injection correct?

The first and second issues will be jointly discussed because they are interrelated. Appellant contends that there was unlawful search. First, the records show that the law enforcers had more than ample time to secure a search warrant. Second, that the marijuana plants were found in an unfenced lot does not remove appellant from the mantle of protection against unreasonable searches and seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898, 88 S. Ct. 1868 (1968), to the effect that the protection against unreasonable government intrusion protects people, not places. For the appellee, the Office of the Solicitor General argues that the records clearly show that there was no search made by the police team, in the first place. The OSG points out that the marijuana plants in question were grown in an unfenced lot and as each grew about five (5) feet tall, they were visible from afar, and were, in fact, immediately spotted by the police officers when they reached the site. The seized marijuana plants were, thus, in plain view of the police officers. The instant case must, therefore, be treated as a warrantless lawful search under the "plain view" doctrine. The court a quo upheld the validity of the search and confiscation made by the police team on the finding that: "...It seems there was no need for any search warrant. The policemen went to the plantation site merely to make a verification. When they found the said plants, it was too much to expect them to apply for a search warrant. In view of the remoteness of the plantation site (they had to walk for six hours back and forth) and the dangers lurking in the area if they stayed overnight, they had a valid reason to confiscate the said plants upon discovery without any search warrant. Moreover, the evidence shows that the lot was not legally occupied by the accused and there was no fence which evinced the occupant's desire to keep trespassers out. There was, therefore, no privacy to protect, hence, no search warrant was required."xxx[30] The Constitutionxxx[31] lays down the general rule that a search and seizure must be carried on the strength of a judicial warrant. Otherwise, the search and seizure is deemed "unreasonable."

Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.xxx[32] Such evidence shall be inadmissible in evidence for any purpose in any proceeding.xxx[33] In the instant case, there was no search warrant issued by a judge after personal determination of the existence of probable cause. From the declarations of the police officers themselves, it is clear that they had at least one (1) day to obtain a warrant to search appellant's farm. Their informant had revealed his name to them. The place where the cannabis plants were planted was pinpointed. From the information in their possession, they could have convinced a judge that there was probable cause to justify the issuance of a warrant. But they did not. Instead, they uprooted the plants and apprehended the accused on the excuse that the trip was a good six hours and inconvenient to them. We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants.xxx[34] The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high-handedness of law enforcers, regardless of the praiseworthiness of their intentions. We find no reason to subscribe to Solicitor General's contention that we apply the "plain view" doctrine. For the doctrine to apply, the following elements must be present: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; and (c) (d) the evidence must be immediately apparent; and plain view justified mere seizure of evidence without further search.xxx[35]

In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant was arrested without a warrant.xxx[36] Hence, there was no valid warrantless arrest which preceded the search of appellant's premises. Note further that the police team was dispatched to appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object.xxx[37] Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to "look around the area" before they could spot the illegal plants.xxx[38] Patently, the seized marijuana plants were not "immediately apparent" and a "further search" was needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and hand." The "plain view" doctrine, thus, cannot be made to apply. Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the protection afforded by the Charter against

unreasonable searches by agents of the State. The right against unreasonable searches and seizures is the immunity of one's person, which includes his residence, his papers, and other possessions.xxx[39] The guarantee refers to "the right of personal security"xxx[40] of the individual. As appellant correctly points out, what is sought to be protected against the State's unlawful intrusion are persons, not places.xxx[41] To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the individual in the sanctuary of his bedroom. We therefore hold, with respect to the first issue, that the confiscated plants were evidently obtained during an illegal search and seizure. As to the second issue, which involves the admissibility of the marijuana plants as evidence for the prosecution, we find that said plants cannot, as products of an unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial poisoned tree. It was, therefore, a reversible error on the part of the court a quo to have admitted and relied upon the seized marijuana plants as evidence to convict appellant. We now proceed to the third issue, which revolves around the sufficiency of the prosecution's evidence to prove appellant's guilt. Having declared the seized marijuana plants inadmissible in evidence against appellant, we must now address the question of whether the remaining evidence for the prosecution suffices to convict appellant? In convicting appellant, the trial court likewise relied on the testimony of the police officers to the effect that appellant admitted ownership of the marijuana when he was asked who planted them. It made the following observation: "It may be true that the admission to the police by the accused that he planted the marijuana plants was made in the absence of any independent and competent counsel. But the accused was not, at the time of police verification; under custodial investigation. His admission is, therefore, admissible in evidence and not violative of the constitutional fiat that admission given during custodial investigation is not admissible if given without any counsel."xxx[42] Appellant now argues that his admission of ownership of the marijuana plants in question cannot be used against him for being violative of his right to counsel during the police investigation. Hence, it was error for the trial court to have relied upon said admission of ownership. He submits that the investigation conducted by the police officers was not a general inquiry, but was meant to elicit information on the ownership of the marijuana plants. Appellant theorizes that since the investigation had narrowed down to him, competent and independent counsel should have assisted him, when the police sought information from him regarding the ownership of the prohibited plants. Appellant claims the presumption of regularity of duty of officers cannot be made to apply to his purported voluntarily confession of ownership of the marijuana plants. Nor can it override his constitutional right to counsel during investigation.

The Office of the Solicitor General believes otherwise. The OSG avers that appellant was not yet under custodial investigation when he admitted to the police that he owned the marijuana plants. His right to competent and independent counsel, accordingly, had not yet attached. Moreover, appellants failure to impute any false motive for the police officers to falsely accuse him indicates that the presumption of regularity in the performance of official duties by police officers was not sufficiently rebutted. The Constitution plainly declares that 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.xxx[43] An investigation begins when it is no longer a general inquiry 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.xxx[44] The moment the police try to elicit admissions or confessions or even plain information from a person suspected of having committed an offense, he should at that juncture be assisted by counsel, unless he waives the right in writing and in the presence of counsel.xxx[45] In the instant case we find that, from the start, a tipster had furnished the police appellant's name as well as the location of appellant's farm, where the marijuana plants were allegedly being grown. While the police operation was supposedly meant to merely "verify" said information, the police chief had likewise issued instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the time the police talked to appellant in his farm, the latter was already under investigation as a suspect. The questioning by the police was no longer a general inquiry. xxx[46] Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the cultivator of that marijuana so we just asked him and I think there is no need to inform (him of) his constitutional rights because we are just asking him..."xxx[47] In trying to elicit information from appellant, the police was already investigating appellant as a suspect. At this point, he was already under custodial investigation and had a right to counsel even if he had not yet been arrested. Custodial investigation is "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."xxx[48] As a suspect, two armed policemen interrogated appellant. Behind his inquisitors were a barangay peace officer and three other armed policemen.xxx[49] All had been dispatched to arrest him.xxx[50] From these circumstances, we may infer that appellant had already been deprived of his freedom of action in a significant way, even before the actual arrest. Note that even before he was arrested, the police made him incriminatingly pose for photos in front of the marijuana plants. Moreover, we find appellant's extrajudicial confession flawed with respect to its admissibility. For a confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.xxx[51] The records show that the admission by appellant was verbal. It was also uncounselled. A verbal admission allegedly made by an accused during the investigation, without the assistance of counsel at the time of his arrest and even

before his formal investigation is not only inadmissible for being violative of the right to counsel during criminal investigations, it is also hearsay.xxx[52] Even if the confession or admission were "gospel truth", if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given.xxx[53] It is fundamental in criminal prosecutions that before an accused may be convicted of a crime, the prosecution must establish by proof beyond reasonable doubt that a crime was committed and that the accused is the author thereof.xxx[54] The evidence arrayed against the accused, however, must not only stand the test of reason,xxx[55] it must likewise be credible and competent.xxx[56] Competent evidence is "generally admissible" evidence.xxx[57] Admissible evidence, in turn, is evidence "of such a character that the court or judge is bound to receive it, that is, allow it to be introduced at trial."xxx[58] In the instant case, the trial court relied on two pieces of probative matter to convict appellant of the offense charged. These were the seized marijuana plants, and appellant's purportedly voluntary confession of ownership of said marijuana plants to the police. Other than these proofs, there was no other evidence presented to link appellant with the offense charged. As earlier discussed, it was error on the trial court's part to have admitted both of these proofs against the accused and to have relied upon said proofs to convict him. For said evidence is doubly tainted. First, as earlier pointed out, the seized marijuana plants were obtained in violation of appellant's constitutional rights against unreasonable searches and seizures. The search and seizure were void ab initio for having been conducted without the requisite judicial warrant. The prosecution's very own evidence clearly establishes that the police had sufficient time to obtain a warrant. There was no showing of such urgency or necessity for the warrantless search or the immediate seizure of the marijuana plants subject of this case. To reiterate, said marijuana plants cannot be utilized to prove appellant's guilt without running afoul of the constitutional guarantees against illegal searches and the inadmissibility of evidence procured pursuant to an unlawful search and seizure. Second, the confession of ownership of the marijuana plants, which appellant allegedly made to the police during investigation, is not only hearsay but also violative of the Bill of Rights. The purported confession was made without the assistance of competent and independent counsel, as mandated by the Charter. Thus, said confession cannot be used to convict appellant without running afoul of the Constitution's requirement that a suspect in a criminal investigation must have the services of competent and independent counsel during such investigation. In sum, both the object evidence and the testimonial evidence as to appellant's voluntary confession of ownership of the prohibited plants relied upon to prove appellant's guilt failed to meet the test of Constitutional competence. The Constitution decrees that, "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved..."xxx[59] To justify the conviction of the accused, the prosecution must adduce that quantum of evidence sufficient to overcome the constitutional

presumption of innocence. The prosecution must stand or fall on its evidence and cannot draw strength from the weakness of the evidence for the accused.xxx[60] Absent the required degree of proof of an accused's guilt, he is entitled to an acquittal.xxx[61] In this case, the seized marijuana plants linking appellant to the crime charged are miserably tainted with constitutional infirmities, which render these inadmissible "for any purpose in any proceeding."xxx[62] Nor can the confession obtained during the uncounselled investigation be used against appellant, "it being inadmissible in evidence against him.xxx[63] Without these proffered but proscribed materials, we find that the prosecution's remaining evidence did not even approximate the quantum of evidence necessary to warrant appellant's conviction. Hence, the presumption of innocence in his favor stands. Perforce, his acquittal is in order. In acquitting an appellant, we are not saying that he is lily-white, or pure as driven snow. Rather, we are declaring his innocence because the prosecution's evidence failed to show his guilt beyond reasonable doubt. For that is what the basic law requires. Where the evidence is insufficient to overcome the presumption of innocence in favor of the accused, then his "acquittal must follow in faithful obeisance to the fundamental law."xxx[64] WHEREFORE, the decision promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105, finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of violating Section 9 of the Dangerous Drugs Act of 1972, and imposing upon him the death penalty, is hereby REVERSED and SET ASIDE for insufficiency of evidence. Appellant is ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Ynares-Santiago, J., on leave.

THIRD DIVISION [G.R. No. 182010 : August 25, 2010] SUSAN ESQUILLO Y ROMINES, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION CARPIO MORALES, J.: Via petition erroneously captioned as one for Certiorari, Susan Esquillo y Romines (petitioner) challenges the November 27, 2007 Decision[1] of the Court of Appeals in CA-G.R. CR No. 27894 which affirmed the July 28, 2003 Decision of Branch 116 of the Regional Trial Court (RTC) of Pasay City in Criminal Case No. 02-2297 convicting Susan Esquillo y Romines (petitioner) for violating Section 11, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) - possession of methamphetamine hydrochloride or shabu. The accusatory portion of the Information dated December 12, 2002 indicting petitioner reads: That on or about the 10th day of December, 2002 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously have in her possession, custody and control 0.1224 gram of Methylamphetamine Hydrochloride (shabu).[2] (underscoring supplied) At the trial, petitioner admitted the genuineness and due execution of the documentary evidence of the prosecution, particularly the Dangerous Drugs and Toxicology Reports issued by National Bureau of Investigation (NBI) Forensic Chemist Antonino de Belen (de Belen),[3] subject to her defenses, to thus dispense with the testimony of de Belen. De Belen recorded the results of the laboratory examination of the contents of the sachet in Dangerous Drugs Report No. DD-02-613,[4] viz: xxxx SPECIMEN: White crystalline substance contained in a heat-sealed transparent plastic sachet marked "SRE" and further placed in bigger marked transparent plastic sachet. xxxx F I N D I N G S: Net Weight of specimen = 0.1224 gram Examinations conducted on the above-mentioned specimen gave POSITIVE RESULTS for METHAMPHETAMINE HYDROCHLORIDE, a dangerous drug. x x x

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

ELENITA C. FAJARDO, Petitioner,

G.R. No. 190889

Present:

CARPIO, J., Chairperson, - versus NACHURA, PERALTA, ABAD, and MENDOZA, JJ.

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. January 10, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the February 10, 2009 Decisionxxx[1] of the Court of Appeals (CA), which affirmed with modification the August 29, 2006 decisionxxx[2] of the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty of violating Presidential Decree (P.D.) No. 1866, as amended.

The facts:

Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D. No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as follows:

That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another, without authority of law, permit or license, did then and there, knowingly,

willfully, unlawfully and feloniously have in their possession, custody and control two (2) receivers of caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial number , two (2) pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered from their possession during a search conducted by members of the Provincial Intelligence Special Operation Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan.xxx[3]

When arraigned on March 25, 2004, both pleaded not guilty to the offense charged.xxx[4] During pre-trial, they agreed to the following stipulation of facts:

1. The search warrant subject of this case exists;

2. Accused Elenita Fajardo is the same person subject of the search warrant in this case who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;

3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27, 2002 but does not live therein;

4. Both accused were not duly licensed firearm holders;

5. The search warrant was served in the house of accused Elenita Fajardo in the morning of August 28, 2002; and

6. The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival of the military personnel despite the fact that the latter allegedly saw them in possession of a firearm in the evening of August 27, 2002.xxx[5]

As culled from the similar factual findings of the RTC and the CA,xxx[6] these are the chain of events that led to the filing of the information:

In the evening of August 27, 2002, members of the Provincial Intelligence Special Operations Group (PISOG) were instructed by Provincial Director Police Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the complaint of concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at the residence of petitioner were indiscriminately firing guns.

Along with the members of the Aklan Police Provincial Office, the elements of the PISOG proceeded to the area. Upon arrival thereat, they noticed that several persons scampered and ran in different directions. The responding team

saw Valerio holding two .45 caliber pistols. He fired shots at the policemen before entering the house of petitioner.

Petitioner was seen tucking a .45 caliber handgun between her waist and the waistband of her shorts, after which, she entered the house and locked the main door.

To prevent any violent commotion, the policemen desisted from entering petitioners house but, in order to deter Valerio from evading apprehension, they cordoned the perimeter of the house as they waited for further instructions from P/Supt. Mendoza. A few minutes later, petitioner went out of the house and negotiated for the pull-out of the police troops. No agreement materialized.

At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava (SPO2 Nava), who was posted at the back portion of the house, saw Valerio emerge twice on top of the house and throw something. The discarded objects landed near the wall of petitioners house and inside the compound of a neighboring residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega (Vega), radio announcer/reporter of RMN DYKR, as witness, recovered the discarded objects, which turned out to be two (2) receivers of .45 caliber pistol, model no. M1911A1 US, with serial number (SN) 763025, and model no. M1911A1 US, with a defaced serial number. The

recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized them in applying for and obtaining a search warrant.

The warrant was served on petitioner at 9:30 a.m. Together with a barangay captain, barangay kagawad, and members of the media, as witnesses, the police team proceeded to search petitioners house. The team found and was able to confiscate the following:

1. Two (2) pieces of Short Magazine of M16 Armalite Rifle; 2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and 3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any documents showing their authority to possess the confiscated firearms and the two recovered receivers, a criminal information for violation of P.D. No. 1866, as amended by Republic Act (R.A.) No. 8294, was filed against them.

For their exoneration, petitioner and Valerio argued that the issuance of the search warrant was defective because the allegation contained in the application filed and signed by SPO1 Tan was not based on his personal knowledge. They quoted this pertinent portion of the application:

That this application was founded on confidential information received by the Provincial Director, Police Supt. Edgardo Mendoza.xxx[7]

They further asserted that the execution of the search warrant was infirm since petitioner, who was inside the house at the time of the search, was not asked to accompany the policemen as they explored the place, but was instead ordered to remain in the living room (sala).

Petitioner disowned the confiscated items. She refused to sign the inventory/receipt prepared by the raiding team, because the items allegedly belonged to her brother, Benito Fajardo, a staff sergeant of the Philippine Army.

Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding team arrived. She averred that such situation was implausible because she was wearing garterized shorts and a spaghetti-strapped hanging blouse.xxx[8]

Ruling of the RTC

The RTC rejected the defenses advanced by accused, holding that the same were already denied in the Orders dated December 31, 2002 and April 20, 2005, respectively denying the Motion to Quash Search Warrant and Demurrer to Evidence. The said Orders were not appealed and have thus attained finality. The RTC also ruled that petitioner and Valerio were estopped from assailing the legality of their arrest since they participated in the trial by presenting evidence for their defense. Likewise, by applying for bail, they have effectively waived such irregularities and defects.

In finding the accused liable for illegal possession of firearms, the RTC explained:

Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine Army prior to his separation from his service for going on absence without leave (AWOL). With his military background, it is safe to conclude that Zaldy Valerio is familiar with and knowledgeable about different types of firearms and ammunitions. As a former soldier, undoubtedly, he can assemble and disassemble firearms.

It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or arsenal which are the usual depositories for firearms, explosives and ammunition. Granting arguendo that those firearms and ammunition were left behind by Benito Fajardo, a member of the Philippine army, the fact remains that it is a government property. If it is so, the residence of Elenita Fajardo is not the proper place to store those items. The logical explanation is that those items are stolen property.

xxxx

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to ones control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law[,] the proprietary concept of the possession can have no bearing whatsoever.

xxxx

x x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.

xxxx

To convict an accused for illegal possession of firearms and explosive under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm ammunition or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused

has no license or permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive (Exhibit G).

The judicial admission of the accused that they do not have permit or license on the two (2) receivers of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition confiscated and recovered from their possession during the search conducted by members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.xxx[9]

Consequently, petitioner and Valerio were convicted of illegal possession of firearms and explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, which provides:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

Both were sentenced to suffer the penalty of imprisonment of six (6) years and one (1) day to twelve (12) years of prision mayor, and to pay a fine of P30,000.00.

On September 1, 2006, only petitioner filed a Motion for Reconsideration, which was denied in an Order dated October 25, 2006. Petitioner then filed a Notice of Appeal with the CA.

Ruling of the CA

The CA concurred with the factual findings of the RTC, but disagreed with its conclusions of law, and held that the search warrant was void based on the following observations:

[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge of the fact that appellants had no license to possess firearms as required by law. For one, he failed to make a categorical statement on that point during the application. Also, he failed to attach to the application a certification to that effect from the Firearms and Explosives Office of the Philippine National Police. x x x, this certification is the best evidence obtainable to prove that appellant indeed has no license or permit to possess a firearm. There was also no explanation given why said certification was not presented, or even deemed no longer necessary, during the application for the warrant. Such vital evidence was simply ignored.xxx[10]

Resultantly, all firearms and explosives seized inside petitioners residence were declared inadmissible in evidence. However, the 2 receivers recovered by

the policemen outside the house of petitioner before the warrant was served were admitted as evidence, pursuant to the plain view doctrine.

Accordingly, petitioner and Valerio were convicted of illegal possession of a part of a firearm, punishable under paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to an indeterminate penalty of three (3) years, six (6) months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20) days of prision correccional, and ordered to pay a P20,000.00 fine.

Petitioner moved for reconsideration,xxx[11] but the motion was denied in the CA Resolution dated December 3, 2009.xxx[12] Hence, the present recourse.

At the onset, it must be emphasized that the information filed against petitioner and Valerio charged duplicitous offenses contrary to Section 13 of Rule 110 of the Rules of Criminal Procedure, viz.:

Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.

A reading of the information clearly shows that possession of the enumerated articles confiscated from Valerio and petitioner are punishable under separate provisions of Section 1, P.D. No. 1866, as amended by R.A. No. 8294.xxx[13] Illegal possession of two (2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16 ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45 ammunition is punishable under paragraph 2 of the said section, viz.:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.xxx[14]

On the other hand, illegal possession of the two (2) receivers of a .45 caliber pistol, model no. M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced serial number, is penalized under paragraph 1, which states:

Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or

intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.xxx[15]

This is the necessary consequence of the amendment introduced by R.A. No. 8294, which categorized the kinds of firearms proscribed from being possessed without a license, according to their firing power and caliber. R.A. No. 8294 likewise mandated different penalties for illegal possession of firearm according to the above classification, unlike in the old P.D. No. 1866 which set a standard penalty for the illegal possession of any kind of firearm. Section 1 of the old law reads:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis ours.)

By virtue of such changes, an information for illegal possession of firearm should now particularly refer to the paragraph of Section 1 under which the seized firearm is classified, and should there be numerous guns confiscated, each must be sorted and then grouped according to the categories stated in Section 1 of R.A. No. 8294, amending P.D. No. 1866. It will no longer suffice to lump all of

the seized firearms in one information, and state Section 1, P.D. No. 1866 as the violated provision, as in the instant case,xxx[16] because different penalties are imposed by the law, depending on the caliber of the weapon. To do so would result in duplicitous charges.

Ordinarily, an information that charges multiple offenses merits a quashal, but petitioner and Valerio failed to raise this issue during arraignment. Their failure constitutes a waiver, and they could be convicted of as many offenses as there were charged in the information.xxx[17] This accords propriety to the diverse convictions handed down by the courts a quo.

Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, including the validity of the search warrant that led to their confiscation, is now beyond the province of our review since, by virtue of the CAs Decision, petitioner and Valerio have been effectively acquitted from the said charges. The present review is consequently only with regard to the conviction for illegal possession of a part of a firearm.

The Issues

Petitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not come within the purview of the plain view doctrine. She argues that no valid intrusion was attendant and that no evidence was adduced to prove that she was with Valerio when he threw the receivers. Likewise absent is a positive showing that any of the two receivers recovered by the policemen matched the .45 caliber pistol allegedly seen tucked in the waistband of her shorts when the police elements arrived. Neither is there any proof that petitioner had knowledge of or consented to the alleged throwing of the receivers.

Our Ruling

We find merit in the petition.

First, we rule on the admissibility of the receivers. receivers were seized in plain view, hence, admissible.

We hold that the

No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2, of the Constitution, which states:

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.

Complementing this provision is the exclusionary rule embodied in Section 3(2) of the same article

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

There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through a warrantless search and seizure may be admissible under any of the following circumstances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of evidence in plain view; and (5) when the accused himself waives his right against unreasonable searches and seizures.xxx[18]

Under the plain view doctrine, objects falling in the plain view of an officer, who has a right to be in the position to have that view, are subject to seizure and may be presented as evidence.xxx[19] It applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a

prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand, and its discovery inadvertent.xxx[20]

Tested against these standards, we find that the seizure of the two receivers of the .45 caliber pistol outside petitioners house falls within the purview of the plain view doctrine.

First, the presence of SPO2 Nava at the back of the house and of the other law enforcers around the premises was justified by the fact that petitioner and Valerio were earlier seen respectively holding .45 caliber pistols before they ran inside the structure and sought refuge. The attendant circumstances and the evasive actions of petitioner and Valerio when the law enforcers arrived engendered a reasonable ground for the latter to believe that a crime was being committed. There was thus sufficient probable cause for the policemen to cordon off the house as they waited for daybreak to apply for a search warrant.

Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances, Valerio emerge on top of the subject dwelling and throw suspicious objects. Lastly, considering the earlier sighting of Valerio holding a pistol, SPO2 Nava had reasonable ground to believe that the things thrown might be contraband items, or evidence of the offense they were then suspected of committing. Indeed, when subsequently recovered, they turned out to be two (2) receivers of .45 caliber pistol.

The pertinent portions of SPO2 Navas testimony are elucidating:

Q A

When you arrived in that place, you saw policemen? Yes, sir.

Q A

What were they doing? They were cordoning the house.

You said that you asked your assistant team leader Deluso about that incident. What did he tell you? Deluso told me that a person ran inside the house carrying with him a gun.

And this house you are referring to is the house which you mentioned is the police officers were surrounding? Yes, sir.

Q A

Now, how long did you stay in that place, Mr. Witness? I stayed there when I arrived at past 10:00 oclock up to 12:00 oclock the following day.

At about 2:00 oclock in the early morning of August 28, 2002, can you recall where were you? Yes, sir.

Q A

Where were you? I was at the back of the house that is being cordoned by the police.

Q A

While you were at the back of this house, do you recall any unusual incident? Yes, sir.

Q A

Can you tell the Honorable Court what was that incident? Yes, sir. A person went out at the top of the house and threw something.

Q A

And did you see the person who threw something out of this house? Yes, sir.

xxxx

Can you tell the Honorable Court who was that person who threw that something outside the house? It was Zaldy Valerio.

COURT: (to witness) Q A Before the incident, you know this person Zaldy Valerio? Yes, sir.

Q A

Why do you know him? Because we were formerly members of the Armed Forces of the Philippines.

xxxx

PROS. PERALTA: Q When you saw something thrown out at the top of the house, did you do something if any? I shouted to seek cover.

xxxx

Q A

So, what else did you do if any after you shouted, take cover? I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place where something was thrown.

Q A

What did you see if any? I saw there the lower [part] of the receiver of cal. 45.

xxxx

Mr. Witness, at around 4:00 oclock that early morning of August 28, 2002, do you recall another unusual incident? Yes, sir.

Q A

And can you tell us what was that incident? I saw a person throwing something there and the one that was thrown fell on top of the roof of another house.

Q A

And you saw that person who again threw something from the rooftop of the house? Yes, sir.

Q A

Did you recognize him? Yes, sir.

Q A

Who was that person? Zaldy Valerio again.

xxxx

Q A

Where were you when you saw this Zaldy Valerio thr[o]w something out of the house? I was on the road in front of the house.

Q A

Where was Zaldy Valerio when you saw him thr[o]w something out of the house? He was on top of the house.

xxxx

Q A

Later on, were you able to know what was that something thrown out? Yes, sir.

Q A

What was that? Another lower receiver of a cal. 45.

xxxx

Q A

And what did he tell you? It [was] on the wall of another house and it [could] be seen right away.

xxxx

Q A

What did you do if any? We waited for the owner of the house to wake up.

xxxx

Q A

Who opened the fence for you? It was a lady who is the owner of the house.

Q A

When you entered the premises of the house of the lady, what did you find? We saw the lower receiver of this .45 cal. (sic)xxx[21]

The ensuing recovery of the receivers may have been deliberate; nonetheless, their initial discovery was indubitably inadvertent. It is not crucial that at initial sighting the seized contraband be identified and known to be so. The law merely requires that the law enforcer observes that the seized item may be evidence of a crime, contraband, or otherwise subject to seizure.

Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The liability for their possession, however, should fall only on Valerio and not on petitioner.

The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal possession of part of a firearm.

In dissecting how and when liability for illegal possession of firearms attaches, the following disquisitions in People v. De Graciaxxx[22] are instructive:

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to

perpetrate the act) it is enough that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.xxx[23]

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder thereof:

(1) (2)

possesses a firearm or a part thereof lacks the authority or license to possess the firearm.xxx[24]

We find that petitioner was neither in physical nor constructive possession of the subject receivers. The testimony of SPO2 Nava clearly bared that he only

saw Valerio on top of the house when the receivers were thrown. None of the witnesses saw petitioner holding the receivers, before or during their disposal.

At the very least, petitioners possession of the receivers was merely incidental because Valerio, the one in actual physical possession, was seen at the rooftop of petitioners house. Absent any evidence pointing to petitioners participation, knowledge or consent in Valerios actions, she cannot be held liable for illegal possession of the receivers.

Petitioners apparent liability for illegal possession of part of a firearm can only proceed from the assumption that one of the thrown receivers matches the gun seen tucked in the waistband of her shorts earlier that night. Unfortunately, the prosecution failed to convert such assumption into concrete evidence.

Mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code, which are mala in se, or in crimes, which are malum prohibitum by virtue of special law.xxx[25] The quantum of proof required by law was not adequately met in this case in so far as petitioner is concerned.

The gun allegedly seen tucked in petitioners waistband was not identified with sufficient particularity; as such, it is impossible to match the same with any of the seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio holding two guns when he and the rest of the PISOG arrived in petitioners house. It is not unlikely then that the receivers later on discarded were components of the two (2) pistols seen with Valerio.

These findings also debunk the allegation in the information that petitioner conspired with Valerio in committing illegal possession of part of a firearm. There is no evidence indubitably proving that petitioner participated in the decision to commit the criminal act committed by Valerio.

Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The constitutional presumption of innocence in her favor was not adequately overcome by the evidence adduced by the prosecution.

The CA correctly convicted Valerio with illegal possession of part of a firearm.

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the subject firearm; and (b) the fact that the accused who possessed the same does not have the corresponding license for it.xxx[26]

By analogy then, a successful conviction for illegal possession of part of a firearm must yield these requisites:

(a) (b)

the existence of the part of the firearm; and the accused who possessed the same does not have the license for the firearm to which the seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The subject receivers - one with the markings United States Property and the other bearing Serial No. 763025 - were duly presented to the court as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the firearm parts he retrieved af ter Valerio discarded them.xxx[27] His testimony was corroborated by DYKR radio announcer Vega, who witnessed the recovery of the receivers.xxx[28]

Anent the lack of authority, SPO1 Tan testified that, upon verification, it was ascertained that Valerio is not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms.xxx[29] To substantiate his statement, he submitted a certificationxxx[30] to that effect and identified the same in court.xxx[31] The testimony of SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the second element.xxx[32]

WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is hereby REVERSED with respect to petitioner Elenita Fajardo y Castro, who is hereby ACQUITTED on the ground that her guilt was not proved beyond reasonable doubt.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice Chairperson

DIOSDADO M. PERALTA Associate Justice

ROBERTO A. ABAD Associate Justice

JOSE CATRAL MENDOZA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

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Summarize It

Amarga v. Abbas, 98 Phil. 739 (1956) F: Municipal Judge Samulde conducted a preliminary investigation (PI) of Arangale upon a complaint for robbery filed by complainant Magbanua, alleging that Arangale harvested palay from a portion of her land directly adjoining Arangales land. After the PI, Samulde transmitted the records of the case to Provincial Fiscal Salvani with his finding that there is prima facie evidence of robbery as charged in the complaint. Fiscal Salvani returned the records to Judge Samulde on the ground that the transmittal of the records was premature because Judge Samulde failed to include the warrant of arrest (WA) against the accused. Judge Samulde sent the records back to Fiscal Salvani stating that although he found that a probable cause existed, he did not believe that Arangale should be arrested. Fiscal Salvani filed a mandamus case against Judge Samulde to compel him to issue a WA. RTC dismissed the petition on the ground that the fiscal had not shown that he has a clear, legal right to the performance of the act to be required of the judge and that the latter had an imperative duty to perform it. Neverhteless, Judge Samulde was ordered to issue a WA in accordance with Sec. 5, Rule 112 of the 1985 Rules of Court. ISSUE: Whether it is mandatory for the investigating judge to issue a WA of the accused in view of his finding, after conducting a PI, that there exists prima facie evidence that the accused commited the crime charged. HELD: THE PURPOSE OF A PRELIMINARY INVESTIGATION DOES NOT CONTEMPLATE THE ISSUANCE OF A WA BY THE INVESTIGATING JUDGE OR OFFICER. Under Rule 112 of the 1985 ROC, a PI is conducted on the basis of affidavits to determine whether or not there is sufficient ground to hold the accused for trial. To determine whether a WA should issue, the investigating judge must have examined in writing and under oath the complainant and his wirtnesses by searching questions and answers; he must be satisfied that a probable cause exists; and there must be a need to place the accused under immediate custody in order not to frustrate the ends of justice. It is not obligatory, but merely discretionary, upon the investigating judge to issue a WA, for the determination of whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion. The fiscal should, instead, have filed an information immediately so that the RTC may issue a warrant for the arrest of the accused.

Source: http://www.shvoong.com/law-and-politics/1767294-case-digest-amarga-abbas98/#ixzz2lXVyjpz0 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-43003 July 16, 1984 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. CIRILO V. SORIANO, Presiding Judge, City Court, Br. II, City of San Jose, and, ATTY. DAVID T. SORIANO, JR., respondents. The Solicitor General for petitioner. David T. Soriano, Jr. for and in his own behalf.

GUERRERO, J.: This is an appeal from the decision of the defunct Court of First Instance of Nueva Ecija, Branch VI, denying the petition for certiorari with preliminary injunction filed by the City Fiscal against the Hon. Cirilo V. Soriano, Presiding Judge of the City Court of San Jose City, Branch II, now Municipal Trial Court. The factual and legal antecedents of the case are as follows: On May 11, 1973, a complaint for estafa was filed with the Office of the City Fiscal of San Jose City against Atty. David T. Soriano, Jr., the private respondent herein, by Casimira Agustin Vda. de Mendoza, for allegedly misappropriating the amount of P100.00 given to him by the complainant "as filing fee and other court expenses" for a suit she intends to file against certain persons. Pursuant to the provisions of Republic Act No. 5180, otherwise known as the Law on Uniform Procedure of Preliminary Investigation, the City Fiscal conducted a preliminary investigation with due notice to and in the presence of the private respondent. The accused cross-examined the complainant and her witnesses but waived his right to present evidence on his behalf. The fiscal, having conducted the preliminary investigation and finding probable cause therefrom against the private respondent, filed the Information before the City Court of

San Jose, the said Information containing the requisite certification that the preliminary investigation was conducted
... pursuant to the provisions of Rep. Act No. 5180, as amended by Rep. Act No. 732, the defendant having been given the chance to appear in person or by counsel at the said investigation and from such investigation, it was found out that there exists a reasonable ground to believe that the offense charged is committed and the accused is probably guilty thereof.

On the same day, August 28, 1973, the accused Atty. David T. Soriano, Jr., filed with the court a "Motion Praying the Court to Conduct Preliminary Examination of the Witnesses Before the Issuance of a Warrant of Arrest." This was followed on the following day, August 29, 1973, by an "Addendum to Motion of Accused Dated August 28, 1973" wherein it is alleged, among other things:
1. That prior to the institution of the above- entitled information against the accused, a preliminary investigation was conducted by the City Fiscal of San Jose City. A preliminary investigation which from the very start was objected to by the accused on the ground that the said investigating City Fiscal cannot under any circumstance maintain a posture of fairness and impartiality citing several warranted reasons as may be gleaned from the following annexes marked A and A-1; B; C-C-1, which is hereto attached for the perusal and appreciation of the Honorable Court. These were however denied by Fiscal Maza, however, despite the pretensions to the contrary, the herein accused cannot believe in his judicious integrity as far as the investigation of this case is concerned pursuant and on the basis of the demands of fairness, justice and absolute objectivity. Hence, with futility in purpose in sight, the herein accused elected to waive the presentation of his evidence with the corresponding reservation to question the result of the investigation later, rather than submit the same before an investigator whose findings would be onesided, partial and foregone. 2. The apprehension and firm belief of the accused as mentioned above has become a reality upon the institution of the information against him before the court. But what is there to warrant the same? A probable cause? There is none and this is so despite the non-presentation of the evidence of the respondent, now accused. To prove this point, a simple analysis of the evidence of the complainant is in order. She claimed that she gave the amount of one hundred pesos to the accused who is her lawyer for a claim of more than fifty thousand pesos. Now, if this is correct, how can the case be filed when the amount of one hundred pesos is not even enough to cover the required filing and miscellaneous fees of the court without taking into consideration the fees for the preparation of the necessary pleadings. Considering this fact, the amount given is a retainer fee of the lawyer and not filing fee as it is not enough. If it is not enough, how can the expected case be filed? Now, granting for the sake of argument although not admitting that the amount alluded above is a filing fee, to give the cause of the complainant the necessary leeway, there is no period agreed upon to file the case, hence, to find the accused susceptible of being charged of Estafa is premature and without probable basis. These are only some of the features of the case although there are some more, which will in a way show that really there is no basis for the charge. Nevertheless, whatever are the concrete perspective of the accused in connection with the case, I subordinate the same to the findings of the Honorable Court, in the event that an examination of the complainant and her witnesses is conducted in accordance with law; ...

The city fiscal filed opposition to the two motions referred to above, claiming that pursuant to the provisions of Section 6, Rule 112 of the Revised Rules of Court, the Judge issuing the warrant of arrest is precluded from conducting a subsequent preliminary investigation of its own for the purpose of determining whether there is reasonable ground for the issuance of said warrant after the fiscal's office had conducted its preliminary investigation on the case pursuant to the provisions of Republic Act No. 5180, as amended by Presidential Decree No. 77; that the same issue of inhibition of the city fiscal was already raised by the accused in the Department of Justice so that the same cannot be raised collaterally in the case below; and thirdly, that the City Court has not acquired jurisdiction over the person of the accused, so that any order which may be issued by the City Court in connection with the motions of the accused would be illegal. The City Court on September 10, 1973 issued its Order granting the prayer of the accused in his two motions, and ordered the Clerk of Court to "direct the appearance of the complainant and her witnesses before this court for a preliminary examination prior to the issuance of a warrant of arrest, should the issuance of one become necessary." According to the City Court, "it can conduct an examination of the complainant and her witnesses before the issuance of warrant of arrest in a case triable before it on the merits, and that it can validly resolve the motion filed by the accused dated August 28, 1973 ..." The city fiscal filed a motion for reconsideration, arguing that the law cited by the City Court in support of its Order of September 10, 1973 applied only in cases recognizable by the Court of First Instance, not in cases cognizable by the City Court in the exercise of its original and exclusive jurisdiction; and that the city fiscal is one of "such other responsible officer as may be authorized by law" included in Section 3, Article IV of the New Constitution, thus:
Sec. 3. The right of the people to be secure in their persons, house, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

For lack of merit, the city fiscal's motion for reconsideration was denied by the City Court. On October 12, 1973, the city fiscal filed before the Court of First Instance of Nueva Ecija (Cabanatuan City) a petition for certiorari with writ of preliminary injunction against the Honorable Cirilo V. Soriano, Presiding Judge, City Court, Branch II, San Jose City, and prayed that "the orders of the Court, dated September 10, 1973 and September 25, 1973, Annex F and Annex I, respectively, be declared null and void and set aside and that the respondent Judge be ordered to issue the warrant of arrest on the basis and on

the faith of the certification of the city fiscal as appearing in the information that a probable cause exists and that the accused is probably guilty thereof. " The petition was subsequently amended to include Atty. David T. Soriano, Jr. as party respondent, who submitted his answer to the petition, denying the material averments thereof and stressing the fact that what the City Court directed in its orders of September 10 and 25, 1973 was the preliminary examination of the complainant and her witnesses before the issuance of the warrant of arrest, which is a recognized prerogative of the said court, citing the case of Amarga vs. Abbas, 52 O.G. 2545, 98 Phil. 739 and Sec. 3, Art. IV of the New Constitution. The case having been submitted jointly by the parties on the basis of the pleadings and memoranda filed, the court on January 4, 1974 rendered judgment in favor of respondents, Judge Cirilo V. Soriano and Atty. David T. Soriano, Jr., the Court of First Instance of Nueva Ecija, Fourth Judicial District, Branch VI, holding that "(t)he preliminary investigation, therefore, conducted by the petitioner which form the basis of filing in the City Court of San Jose City of Criminal Case No. 1459 did not dispense with the duty of the respondent Judge to exercise his judicial power of determining before issuing the corresponding warrant of arrest whether or not probable cause exists," (Provincial Fiscal Amarga vs. Hon. Judge Abbas, G.R. No. I-8666, March 28, 1956, 98 Phil. 739) and citing the case of U.S. vs. Ocampo, 18 Phil. 1 where the Supreme Court held that the question whether probable cause exists or not must depend upon the judgment of the judge or magistrate issuing the warrant of arrest. His conclusion as to whether probable cause existed or not is final and conclusive. If he is satisfied that probable cause exists from the facts stated in the complaint made upon by the investigation conducted by the prosecuting attorney, then the conclusion is sufficient upon which to issue the warrant of arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. Accordingly, the court directed that:
In view of the foregoing, the instant petition for certiorari is hereby denied and dismissed, and it is ordered that the respondent Judge proceed immediately without unnecessary delay with the property examination contemplated in his order.

On appeal to the Court of Appeals (now the Intermediate Appellate Court) the case was certified to this Court pursuant to Section 3, Rule 50 and Section 31 of the Judiciary Act. As per Our Resolution of February 27, 1976, the case was ordered docketed in this Court and declared submitted for decision. The basic legal issue to be resolved herein is whether or not a city court, in a criminal case falling within its original and exclusive jurisdiction, may still conduct a preliminary examination for the purpose of determining the issuance of a warrant of arrest, despite the fact that the city fiscal had already conducted a preliminary investigation, had certified that the preliminary investigation was conducted "pursuant to the provisions of Republic Act No. 5180, as amended by Republic Act No. 732, the defendant having been given the chance to appear in person or by counsel at the said investigation and

from such investigation, it was found out that there exists a reasonable ground to believe that the offense charged is committed and the accused is probably guilty thereof," and had filed the corresponding information with said city court. The People contends that the lower court erred in holding that the preliminary investigation conducted by the city fiscal, basis of the information for estafa in the amount of P100.00 filed in the City Court of San Jose City, did not dispense said City Court from conducting another preliminary examination or investigation before the issuance of the warrant of arrest, citing Sections 29 and 88 of the San Jose City Charter (Republic Act 6051, approved August 4, 1969) which enumerates the powers and duties of the City Fiscal and prescribes the procedure in the City Court in the prosecution for violation of laws and ordinances, to wit:
Sec. 29. The City Fiscal His powers and duties. There shall be a city fiscal and assistant city fiscal who shall be the chief and assistant chief of the law department, and who shall discharge their duties under the general supervision of the Secretary of Justice. The city fiscal shall be the chief legal adviser of the city and fiscal offices and departments thereof. He shall have the following powers and duties: xxx xxx xxx (g) He shall cause to be investigated all charges of crimes, misdemeanors and violations of law and city ordinances brought to his knowledge, and have the necessary information or complaints prepared or made against the accused. He or any of his assistants may conduct such investigations by taking oral evidence of reputed witnesses and for this purpose may issue subpoena to summon witnesses to appear and testify under oath before him, and subpoena duces tecum for the production of documents and other evidence. The attendance of an absent or recalcitrant witness may be enforced by application for a warrant of arrest to the city court or to the Court of First Instance. Sec. 88. Procedure in City Court in prosecution for violation of laws and ordinance. In a prosecution for the violation of any ordinance, the first process shall be summons; except that a warrant for the arrest of the offenders may be issued in the first instance upon the affidavit of any person that such ordinance has been violated; and person making the complaint has reasonable grounds to believe that the party charged is guilty thereof, which warrant shall conclude: "Against the ordinance of the city in such case made and provided." All proceedings and prosecutions for offense against the laws of the Philippines shall conform to the rules relating to process, pleading, practice and procedure for the judiciary of the Philippines, and such rules shall govern the city court and its officers in all cases insofar as the same may be applicable. An appeal from the city court to the Court of First Instance shall be governed by the provisions of the Rules of Court.

According to the Solicitor General, the above sections are similar to Sections 38 (b) and 43 of the charter of the City of Manila, respectively, to wit:
Sec. 38(b) The City Fiscal shall cause to be investigated all charges of crimes and violations of ordinances and have the necessary informations or complaints prepared or made against the persons accused. He or any of his assistants may conduct such investigations by taking oral evidence of reputed witnesses, and for the purpose may issue subpoena, summon witnesses to appear and testify under oath before him, and the

attendance or evidence or any absent or recalcitrant witness may be enforced by application to the municipal court or the Court of First Instance. No witness summoned to testify under this section shall be under obligation to give any testimony tending to incriminate himself. Sec. 43. Procedure in municipal court in prosecution for violations of laws and ordinances. In a prosecution for the violation of any ordinance, the first process shall be a summons; except that a warrant for the arrest of the offender may be issued in the first instance upon the affidavit of any person that such ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof, which warrant shall conclude: "Against the ordinance of the city in such case made and provided." All proceedings and prosecutions for offense against the laws of the Philippines shall conform to the rules relating to process, pleading, practice, and procedure for the judiciary of the Philippines and such rules shall govern the municipal court and its officers in all cases in so far as the same may be applicable.

And since there is "great similarity in the charter provisions of the City of Manila and San Jose City, insofar as the power of the City Fiscal to investigate charges of crime and the procedure for the prosecution of violations of law and ordinances in the city courts are concerned," and that "(i)n the City of Manila, the rule is that the Municipal Judge has no authority to conduct either a preliminary examination or a preliminary investigation," the Solicitor General maintains that this rule in the City of Manila should also apply to San Jose City, in that it suffices that if the City Fiscal of San Jose finds that there is a prima facie showing that the accused has committed the offense complained of, said City Fiscal files "the corresponding information with the certification made under oath that he conducted the investigation in accordance with law, " as was done at bar, and "the court shall forthwith issue the warrant of arrest." We do not agree with the position of the appellant for the City Charter of San Jose City provides under Section 89 thereof the following:
Section 89. Preliminary examinations in the City Fiscal's Office, City Court and Courts of First Instance. Each person arrested shall, without necessary delay, be brought before the city fiscal, the city court or the Court of First Instance for preliminary hearing, release on bail, or trial. In cases triable in the city court for violations of city ordinances, the defendant shall not be entitled as of the right to a preliminary examination, except to summary one to enable the court to fix the bail, in any case where the prosecution announces itself ready and is ready for trial within three days, not including Sundays, after the request for an examination is presented. In all cases brought to the office of the city fiscal involving crimes cognizable by the Court of First Instance, where the accused is not already in the legal custody of the police, no complaint or information shall be filed without first giving the accused a chance to be heard in a preliminary investigation, where such accused can be subpoenaed and appears before the investigating fiscal, with the right to cross-examine the complainant and his witnesses: Provided, That when the accused is detained, he may ask for a preliminary investigation, but he must sign a waiver of the provision of Article One hundred twenty-five of the Revised Penal Code, as amended: And provided, further, That if the case has already been filed in court, he may ask for a reinvestigation thereof later on with the same right to cross-examine the witnesses against him: Provided, finally, That notwithstanding such waiver the said investigation must be terminated within seven days, from its inception. (emphasis supplied).

The charter creating the City of San Jose is, to Our mind, decisive and controlling in the case at bar. In the case of Callanta vs. Villanueva, 77 SCRA 377, We held that unlike the city courts of Manila, the city courts of Dagupan City are authorized to conduct preliminary investigations, the Court, speaking through then Justice, now Chief Justice Fernando, thus:
2. Nor can it be concluded that there is justification for the tone of certainty of counsel for petitioner that only the City Fiscal of Dagupan may conduct a preliminary examination. Apparently, he had in mind Sayo v. Chief of Police of Manila. That was a decision involving the Charter of the City of Manila. The opinion of Justice Feria did state the following: "Under the law, a complaint charging a person of commission of an offense cognizable by the courts of Manila is not filed with the municipal court or the Court of First Instance of Manila because as above stated the latter do not make or conduct preliminary investigation * * *." Such a doctrine is inapplicable. The reliance is, therefore, misplaced. The Charter of the City of Dagupan cannot be any clearer. The City Court of Dagupan City "may also conduct preliminary investigation for any offense, without regard to the limits of punishment, and may release, or commit and bind over any person charged with such offense to secure his appearance before the proper court.

At this juncture, it is pertinent and very enlightening to note the concurring opinion of Justice Aquino in the Callanta case, wherein it is pointed out that Section 77 of the Dagupan City Charter expressly empowers its City Court (formerly Municipal Court) to "conduct preliminary investigation for any offense, without regard to the limits of punishment" and that this provision is also found in Section 87 of the Judiciary Law and in Section 2, Rule 112 of the Rules of Court which provides that "every Justice of the Peace, Municipal Judge (meaning City Judge), City or Provincial Fiscal, shall have authority to conduct preliminary examination or investigation in accordance with these rules of all offenses alleged to have been committed within his municipality, city or province, cognizable by the Court of First Instance." It is also found in the last sentence of Section 41 of Republic Act No. 409, the Revised Charter of Manila, which took effect on June 18, 1949 or after Sayo vs. Chief of Police of Manila, 80 Phil. 859 was decided. But this provision is not found in Commonwealth Act No. 326, the Charter of Bacolod City, under which Montelibano vs. Ferrer, 97 Phil. 228 was decided nor in the old Manila Charter found in the Revised Administrative Code. Hence, in the Sayo and Montelibano cases, it was held that the City Court could not conduct preliminary investigations. We, therefore, hold that under the above-quoted and underlined provisions of the City Charter of San Jose City, the City Court may conduct preliminary examination of the estafa charge against private respondent, the accused Atty. David T. Soriano, Jr., who may be granted the right to cross-examine the witnesses against him, notwithstanding the fact that the city fiscal had conducted and certified thereto the preliminary investigation in accordance with the provisions of Republic Act No. 5180. We further note from the Motion of private respondent dated August 28, 1973 praying the court to conduct preliminary examination of the witnesses before the issuance of a warrant of arrest and the Addendum to the same motion filed August 29, 1973 that said pleadings allege substantial grounds to dispute the findings of the prosecuting fiscal. It

is therein alleged that the P100.00 given by the complainant to the accused lawyer to pay for the filing fees and other court expenses and alleged to have been misappropriated was not sufficient to pay for the filing fees and other court expenses for the P50,000.00 damage suit to be filed by said lawyer-accused in behalf of his client, the complainant, for the death of the latter's husband and that said amount of P100.00 was his retainer's fee in the case. These grounds appear to be not only substantial but also justifiable which if substantiated the City Court may properly consider in determining whether to issue or not the warrant of arrest against the lawyer, the private respondent herein. It is fair to assume that having heard the evidence for the accused, the preliminary examination conducted by the City Court may result in avoiding a malicious or unfounded criminal prosecution of the accused person (Luna vs. Plaza, 26 SCRA 310) which after all is the ultimate purpose of a preliminary investigation. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the petition is hereby DISMISSED. The City Court of San Jose City, Branch 11, is hereby directed to proceed accordingly pursuant to its Order of September 10, 1973. No costs. SO ORDERED. Concepcion, Jr. and De Castro, JJ., concur. Abad Santos and Escolin, JJ., concur in the result.

Separate Opinions

AQUINO, J., concurring: I concur in the result. What accused David T. Soriano actually complains about is that City Fiscal Maza's charge of estafa, punished by arresto mayor minimum and medium (two months and one day to six months), a light offense exclusively cognizable by the city court, is baseless. He was unjustly indicted. The sum of P100 given to him by the complainant was a retaining fee, not for filing fee. So, there is no estafa (Compare Neri vs. Liwag, 107 Phil. 854). He feels aggrieved that because of the unjust charge he would be arrested. The hearing to be conducted by the city court pursuant to its order of September 30, 1973 should be a part of the trial There is no preliminary investigation for light offense,

only for offenses cognizable by the Regional Trial Court, formerly Court of First Instance (Sec. 1, Rule 112, Rules of Court; Marinas vs. Siochi, L-25707, May 14, 1981, 104 SCRA 423). Ordinarily, the investigation conducted by the fiscal regarding the commission of a light offense is sufficient and will not be duplicated by the city court (People vs. Villanueva, G.R. No. 56443, December 19, 1981, 110 SCRA 465). MAKASIAR, J., concurring: My concurrence is based on Article IV, Section 3 of the 1973 Constitution, to wit:
Sec. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as maybe authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized (emphasis supplied).

The City Fiscal of San Jose City in the instant case is not "such other responsible officer as may be authorized by law", inasmuch as until now "no law or presidential decree has been enacted or promulgated vesting the said authority in a particular "responsible officer." And "until such law is enacted by the National Assembly, only the Judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant" (Collector of Customs v. Villaluz, June 18, 1976, 71 SCRA 380, 386). Only the Judge, and no other official, can issue the warrant of arrest; and this power depends on the finding by the Judge himself of the existence of probable cause. The determination of a probable cause by the prosecutor is not binding on the Judge who may conduct his own examination, although WE ruled in one case that the Judge may rely on the investigation conducted by the fiscal or prosecutor (Amarga v. Abbas, 98 Phil. 739, 741-742). The ultimate decision of issuing a warrant of arrest rests on the Judge and in his exercise of said function, he may or may not rely on the preliminary investigation conducted by the fiscal. To conduct his own examination and not rely on the investigation of the fiscal rests entirely upon the discretion of the Judge. This is confirmed by Section 6 of Rule 112 of the Revised Rules of Court, which directs the Judge to issue the warrant of arrest when he is "satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, ...

Separate Opinions AQUINO, J., concurring: I concur in the result. What accused David T. Soriano actually complains about is that City Fiscal Maza's charge of estafa, punished by arresto mayor minimum and medium (two months and one day to six months), a light offense exclusively cognizable by the city court, is baseless. He was unjustly indicted. The sum of P100 given to him by the complainant was a retaining fee, not for filing fee. So, there is no estafa (Compare Neri vs. Liwag, 107 Phil. 854). He feels aggrieved that because of the unjust charge he would be arrested. The hearing to be conducted by the city court pursuant to its order of September 30, 1973 should be a part of the trial There is no preliminary investigation for light offense, only for offenses cognizable by the Regional Trial Court, formerly Court of First Instance (Sec. 1, Rule 112, Rules of Court; Marinas vs. Siochi, L-25707, May 14, 1981, 104 SCRA 423). Ordinarily, the investigation conducted by the fiscal regarding the commission of a light offense is sufficient and will not be duplicated by the city court (People vs. Villanueva, G.R. No. 56443, December 19, 1981, 110 SCRA 465). MAKASIAR, J., concurring: My concurrence is based on Article IV, Section 3 of the 1973 Constitution, to wit:
Sec. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as maybe authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized (emphasis supplied).

The City Fiscal of San Jose City in the instant case is not "such other responsible officer as may be authorized by law", inasmuch as until now "no law or presidential decree has been enacted or promulgated vesting the said authority in a particular "responsible officer." And "until such law is enacted by the National Assembly, only the Judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant" (Collector of Customs v. Villaluz, June 18, 1976, 71 SCRA 380, 386). Only the Judge, and no other official, can issue the warrant of arrest; and this power depends on the finding by the Judge himself of the existence of probable cause. The determination of a probable cause by the prosecutor is not binding on the Judge who may conduct his own examination, although WE ruled in one case that the Judge may rely on the investigation conducted by the fiscal or prosecutor (Amarga v. Abbas,

98 Phil. 739, 741-742). The ultimate decision of issuing a warrant of arrest rests on the Judge and in his exercise of said function, he may or may not rely on the preliminary investigation conducted by the fiscal. To conduct his own examination and not rely on the investigation of the fiscal rests entirely upon the discretion of the Judge. This is confirmed by Section 6 of Rule 112 of the Revised Rules of Court, which directs the Judge to issue the warrant of arrest when he is "satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, ...

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-64261 December 26, 1984 JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners. The Solicitor General for respondents.

ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books

and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...". Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a

presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition. Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the abovequoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners

themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his copetitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant. 5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant

may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises abovementioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and 21 materials it uses.

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the

seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Aquino, J., took no part.

Separate Opinions

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

the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following:
Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur.

Separate Opinions ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the

warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following:
Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur. Footnotes
1 Petition, P. 44, Rollo.

2 Manifestation and Opposition, p. 75, Rollo. 3 Templo v. Dela Cruz, 60 SCRA 295. 4 463 Phil. 275. 5 Tijam v. Sibonghanoy, 23 SCRA 29. 6 Sec. 4, Rule 126, Rules of Court provides: Sec. 4. Examination of the Applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their deposition in writing and attach them to the record, in addition to any affidavits presented to them. 7 The opening paragraph of Search Warrant No. 20- 82 [b] reads: "It appearing to the satisfaction of the undersigned after examination under oath of Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are good and sufficient reason to believe that Jose Burgos, Jr. Publisher-Editor of "WE FORUM" with office address at 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, has in his possession and control at said address the following; ... : 8 68 Am. Jur. 2d., 729. 9 61 Phil. 709. Annex "C", Petition, pp. 51-52, 10 Rollo. 11 Annex "B", Petition, pp. 53-54, Rollo. 12 Annex "C", Petition, p. 51, Rollo. 13 Annex "D", Petition, p. 54, Rollo. 14 Sec. 3, Art. IV, 1973 Constitution. 15 64 Phil. 33. 18 Sec. 9. Art. IV of the Constitution 19 Annex "K", Consolidated Reply, p. 175, Rollo. 20 Annex "L", Consolidated Reply, p. 178, Rollo. 21 Annex "M", Consolidated Reply, p. 179, Rollo.

Burgos v. Chief of Staff 133 SCRA 800 (1984) Illegal search of newspaper offices and press freedom F: On the basis of two warrants issued by the RTC of QC, the offices of the Metropolitan Mail and the We Forum were search and printing machines, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the newspapers as well as papers and other literature seized on the ground that they were used in the commission of the crime of subversion. Petitioners brought and action to annul the warrants and compel the return of the things seized. HELD: Petitioners'' thesis is impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. When addressed to a

newspaper publisher or editor, the application for a warrant must contain a specification stating with particularity the alleged subversive materials he has published or intending to publish. Broad statement in the application is a mere conclusion of law and does not satisfy the requirement of probable cause. Another factor that makes the search warrants constitutionally objectionable is that they are in the nature of general warrants. In Stanford v. State of Texas, the US SC declared this type of warrant void Source: http://www.shvoong.com/law-and-politics/1767243-case-digest-burgos-vschief/#ixzz2lXW6aUMp PEOPLE OF THE PHILIPPINES and G.R. No. 158157 VILMA CAMPOS, Petitioners, Present:

-versus-

PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ,

LOUEL UY, TEOFILO PANANGIN, HON. JUDGE MAMINDIARA P. MANGOTARA, Acting Judge, Br. 44, Initao, Misamis Oriental, Respondents.

CORONA, CARPIO MORALES, and GARCIA, JJ.


Promulgated:

September 30, 2005 xx------------------------------------------------------------------------------xx

DECISION

CARPIO MORALES, J.:

The Decision dated April 7, 2003 of the Regional Trial Court of Misamis Oriental, Branch 44, granting the separate demurrer to evidence of accused Louel Uy and Teofilo Panangin resulting in their acquittal for murder due to insufficiency of evidence, but nevertheless holding them jointly and severally liable to pay P35,000 to the heirs of the victim Rabel Campos representing vigil and burial expenses is being assailed in the present petition for certiorari under Rule 65 of the Revised Rules of Court by the People and the mother of the victim.

The victim, Rabel Campos, was found dead with several stab wounds in the morning of March 23, 2001 along the National Highway of Maputi, Naawan, Misamis Oriental.

A suspect in the commission of the crime, Teofilo Panangin (Panangin), was arrested on January 22, 2002 by elements of the Special Operation Group and Police Community Precinct 1 of Iligan City.

During the investigation conducted by the National Bureau of InvestigationIligan District Office (NBI-ILDO) on January 23, 2002, Panangin executed a

Sworn Statement[1] with the assistance of Atty. Celso Sarsaba of the Public Attorneys Office (PAO).

In his January 23, 2002 Sworn Statement, Panangin related as follows:

On March 22, 2001, around 8:00 p.m., while he was at the Justy Inn, Tibanga, Iligan City, his former employer Louel Uy (Uy), in whose house he stayed from 1993 to 1997, arrived, telling him that he had a problem and that it was he (Panangin) who could help him.

He and Uy thereafter repaired to the Sanitarium Hospital where Uys grandmother had just died, after which they proceeded to the house of Uy where the latter gave him a stainless steel knife, instructing him to keep it as they had work to do.

Later that night, he and Uy, on board a red Isuzu vehicle, proceeded to Quezon Avenue near the Cathedral where they stopped. Uy then called by cellular phone his live-in partner Rabel, who later was to be the victim of a gruesome death, and instructed her to proceed to where they were. As instructed, Rabel repaired to where they were and joined them on board the vehicle. The three of

them thereupon proceeded to the direction of Pagahan, Initao, Misamis Oriental and on reaching this place, Uy negotiated a U-turn.

Upon reaching the National Highway in Naawan, Misamis Oriental, Uy stopped the vehicle and alighted. Uy then forcibly pulled Rabel out of the vehicle and as Uy was holding Rabel tightly, he instructed him to stab her. Albeit he was hesitant, as Uy shouted at him and threatened to shoot him with his cal. 45 pistol tucked at his waist, he had no choice but to follow Uys instruction. He thus stabbed Rabel once at the stomach.

After he stabbed Rabel, she was able to run away. Uy, however, took the knife from him and chased Rabel. On catching up with her, Uy dragged her to the ground and stabbed her several times until she expired. He and Uy then left for Iligan City, arriving thereat at 1:30 a.m. of March 23, 2001.

At the time Panangin gave his Sworn Statement, he was shown a pair of sandals, found and taken by the police at the scene of the crime, bearing the markings Neckersman Switzerland which he confessed to be his, he adding that it was given to him by Edgar Uy, a cousin of Uy. He was also shown a pair of sandals, also recovered from the crime scene, bearing the mark ings WAGON & RACKS, which he identified to be Rabels.

Following the execution by Panangin of his sworn statement-extrajudicial confession on January 23, 2002, Atty. Patricio S. Bernales, Jr., District Agent-inCharge of the NBI-ILDO, filed on even date a case for murder against Panangin and Uy before the 10th Municipal Circuit Trial Court (MCTC) of Lugait-ManticaoNaawan.

During the preliminary investigation before the MCTC, Panangins sworn statement and witnesses were presented.

After the preliminary investigation of Panangin was concluded or on January 24, 2002, MCTC Investigating Judge Jose U. Yamut, Sr. issued a Resolution,[2] the pertinent portions of which read:

From the evidence adduced or submitted, we are of the OPINION that the killing of CAMPOS was attended by (a) craft; (b) superior strength and evident premeditation (For UY x x x). The OVERT ACTS OF UY AND PANANGIN show that BOTH had the UNITY OF DESIGN and both agreed to kill CAMPOS and decided to kill CAMPOS. IN VIEW OF THE ABOVE, let a WARRANT OF ARREST issue against TEOFILO PANANGIN, for the FELONY of MURDER with NO BAILBOND RECOMMENDED. PANANGIN is principal by direct participation in the killing of CAMPOS. (Citations omitted) xxx

The investigating judge then directed the issuance of subpoena to Louel Uy for him to appear at a preliminary investigation scheduled on February 4, 2002. The records do not show if the preliminary investigation scheduled on February 4, 2002 pushed through and if it did, what the result was. The records, however, show that Assistant Provincial Prosecutor Mayorico M. Bodbod found the evaluation of the investigating judge to be in order, hence, he affirmed the same by Resolution[3] dated March 19, 2002 and recommended the indictment of Uy and Panangin for murder.

An Information[4] was thus filed on April 5, 2002 charging Uy and Panangin with murder as follows: That on March 22, 2001 at around 11:30 oclock more or less in the evening at Maputi, Nawan, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court the above-named accused, Louel Uy and Teofilo Panangin with intent to kill and treachery, evident premeditation and abuse of superior strength did then and there, willfully, unlawfully and feloniously stab one Rabel Campos, several times which resulted to her untimely death. CONTRARY TO and in violation of Article 248 of the Revised Penal Code in relation to Republic Act No. 7659.

When arraigned, both accused entered a plea of not guilty.[5]

Aside from the sworn statement-extrajudicial confession of Panangin and photographs[6] of the victim Rabel taken when she was found dead lying on a grassy area, the prosecution presented 11 witnesses, the most vital of which insofar as the resolution of the petition at bar is concerned are the testimonies of PAO Atty. Celso Sarsaba, NBI agent Gerardo Tamayo, Uys girlfriend Iris Paumar and her mother Julieta Paumar which follow after their respective names.

Atty. Celso Sarsaba[7] of the PAO: He assisted Panangin during the investigation conducted on January 23, 2002 at Police Station I. Before Panangin gave a statement, Gerardo Tamayo (Tamayo) of the NBI informed him of his constitutional rights and warned him that his statement might be used against him, but Panangin went ahead and gave his statement.

Tamayo then proceeded to investigate Panangin who was handcuffed at the inception of the investigation, although in the course thereof his handcuffs were removed as he was allowed to smoke. The investigation was in the form of question and answer, and Panangin had the opportunity to review every item thereof which was translated into the Visayan dialect.

After the interview, he asked Panangin whether he had something to replace or amend or substitute in his statement to which Panangin replied in the negative. Panangin thereafter affixed his signature on his statement in his presence.

NBI agent Gerardo Tamayo:[8] He investigated Panangin who informed him that he had no counsel to assist him. He thus requested PAO lawyer Atty. Sarsaba to assist Panangin who had earlier been arrested not in connection with the death of Rabel but with another case. In apprising Panangin of his constitutional rights, he spoke to him in Visayan.

Iris Paumar:[9] Echoing the contents of her affidavit executed on May 2, 2001,[10] she related that Uy, with whom she had a five-month romantic relationship, together with Panangin, went to her house on March 23, 2001 for her birthday. A few weeks before Rabels death, she and Rabel figured in a slapping incident.

Julieta Paumar:[11] Her daughter Iris had a romantic relationship with Uy who, together with Panangin, went to their house at Purok 8, Tipanoy, Iligan City at dawn of March 23, 2001 for her daughters birthday. She affirmed the contents of her affidavit[12] dated April 10, 2001 which she executed in connection with the case.

Following the filing and the subsequent admission on February 4 and 13, 2003 of its Formal Offer of Evidence, including Panangins Sworn Statement, the prosecution rested its case.

Thereafter, Panangin, with leave of court, filed on March 3, 2003 a demurrer to evidence[13] on the ground that when he executed his extra-judicial confession, his rights under Sec. 12, Bill of Rights of the Constitution were violated in that he was man-handled and detained . . . and while being handcuffed his extra-judicial confession was taken by . . . Tamayo who, however failed and never informed [him] of his constitutional rights as accused.

To the demurrer, Panangin attached his Affidavit[14] dated July 1, 2002 retracting his January 23, 2002 sworn statement-extra-judicial confession.

Uy, also with leave of court, filed a separate demurrer to evidence[15] essentially echoing the grounds-bases of Panangins demurrer.

More than a month from the filing of the demurrer to evidence, the trial court, by Decision[16] dated April 7, 2003, granted the demurrer, the dispositive portion of which is quoted verbatim:

WHEREFORE, the demurrer to evidence is hereby granted and the accused Louel Uy and Teofilo Panangin are hereby acquitted for insufficiency of evidence.

However, accused are hereby ordered jointly and solidarily to pay P35,000.00 to the heirs of the victim as their heirs in the vigil and burial expenses of the victim. Without subsidiary imprisonment in case of insolvency.

In granting the separate demurrer of the accused, the trial court held that the testimonial evidence adduced by the prosecution is hearsay, if not speculatory; that there was no evidence adduced to the effect that Uy was the last person seen with the victim; that Panangins extra-judicial confession-sworn statement of January 23, 2002 was not voluntary as it was subsequently retracted (on July 1, 2002) and even if it were not, it is inadmissible since [i]t is a fruit of poisonous tree as it was obtained from Panangin as a result of his illegal arrest.

Hence, this petition for certiorari filed by the People and the victims mother, raising the following issues:

I.

WHETHER OR NOT THE EXTRA-JUDICIAL CONFESSION EXECUTED BY ACCUSED, TEOFILO PANANGIN IS ADMISSIBLE IN EVIDENCE THAT WOULD WARRANT HIS OWN CONVICTION FOR THE GRUESOME CRIME OF MURDER OF WHICH HE IS BEING INDICTED[;]

II.

WHETHER OR NOT THE PROSECUTION WAS ABLE TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT[;] and WHETHER OR NOT THE HONORABLE ACTING JUDGE COMMITTED GRAVE ABUSE OF DISCRETION WHICH WOULD RESULT TO LACK OF JURISDICTION WHEN HE GRANTED THE DEMURRER TO EVIDENCE ON THE GROUND THAT THE EXTRAJUDICIAL CONFESSION EXECUTED BY ACCUSED, TEOFILO PANANGIN IS INADMISSIBLE IN EVIDENCE AFTER ADMITTING THE SAME TO BE PART OF THE EVIDENCE IN CHIEF OF THE PROSECUTION.[17]

III.

Petitioners impute grave abuse of discretion on the part of the trial court when it granted the demurrer to evidence. They contend that when Panangin executed his extra-judicial confession, he was fully apprised of his constitutional rights and the basic requirements of law were fully complied with; and that in any event, since the trial court admitted Panangins extrajudicial confession, the issue of its admissibility had become moot and academic.

The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appeals[18] explains the rationale of this rule: In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan:[19]

The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there. (Italics in the original)

Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting the accused, committed not merely reversible errors of judgment but also grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void.[20]

In People v. Court of Appeals,[21] this Court had the occasion to elucidate on the special civil action of certiorari, the remedy availed of by petitioners:

To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at

all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.

This Court finds that the trial court committed not only gross reversible error of judgment but also was actuated with grave abuse of discretion, exceeding the parameters of its jurisdiction, in holding that Panangins retracting of his confession shows that the execution thereof was involuntary and that in any event it was inadmissible as it was a fruit of [a] poisonous tree.

The trial court blindly accepted the claim of the defense that the confession was not made voluntarily on the basis of an affidavit executed by Panangin on July 1, 2002 or more than 5 months after his sworn statement-confession was given and after the prosecution rested its case, which affidavit Panangin was not even called to identify and affirm at the witness stand, hence, hearsay.

The decision of the trial court undoubtedly deprived the prosecution of due process as it was not given the opportunity to check the veracity of Panangins alleged retraction.

It bears emphasis that the State, just like the accused, is entitled to due process. People v. Bocar so teaches:[22] The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the States right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. Any judgment or decision rendered notwithstanding such violation may be regarded as a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head. (Emphasis and underscoring supplied) Moreover, the exclusion of the extra-judicial confession on the basis of Panangins unsubstantiated claim that it was not voluntarily made is contrary to what People v. Porio[23] instructs:

A confession is presumed to be voluntary until the contrary is proved and the declarant bears the burden of proving that his confession is involuntary and untrue. Appellant was unable to discharge this burden. He failed to present evidence that he was intimidated or practically forced to execute or sign his Sinumpaang Salaysay. xxx All the above facts indicate that appellant executed his Sinumpaang Salaysay freely and voluntarily. To hold otherwise is to facilitate the retraction by appellant of his solemnly made statements at the mere allegations of force, intimidation, violence or torture, without any proof whatsoever. Bare assertions will certainly not suffice to overturn the presumption of voluntariness. xxx (Italics in the original; emphasis and underscoring supplied).

En passant, on the defense claim that in the execution of his sworn statement, Panangin was not properly apprised of his constitutional rights by the assisting counsel, Atty. Sarsabas testimony shows otherwise: ATTY.CARASCO Q During the time when the investigation was conducted were you present? A Whole duration of the investigation I was sitting beside the accused. Q Could you tell us the length of time the investigation was conducted? How many hours? A In so far as I can remember it started at around 1:30 and we finished at quarter to six. So, more than four hours. Q Before the investigation started, did you have a chance to talk to accused Teofilo Panangin? A Yes. After Special Agent Gerardo Tamayo had informed him of his constitutional rights, I asked him again if he would still continue or whether his statement is voluntary and he was not coerced to give his voluntary statement.

Q After appraising the right of the accused did he still continue to give his voluntary statement? A Yes, maam.[24] xxx Q And in the first part of the statement the language used is English. Could you recall if the given statement was reduced into the dialect known to accused Teofilo Panangin? After Special Agent Gerardo Tamayo had been through with the question and answer I had the opportunity to review every item of the question translated into Visayan dialect which I asked the accused whether he has something to replace, amend or substitute and he persistedly affirmed that there is nothing to be changed.[25] xxx (CROSS EXAMINATION BY ATTY. MARANDA) Q A Q A Q A Compaero, you will attest to the truth in correctness of all the contents of the Sworn Statement given by Panangin, consisting of four pages? I will attest. And that these contents, all of these are all true and correct to the best of your knowledge? Yes. And that you read this, particularly the Sworn Statement of Loloy Panangin and you see no mistakes of the statement? As far as the contents of that voluntary statement of the accused, it was reviewed before the final printing of the statement. All questions and answers were again reviewed and I asked him again whether he has something to replace but he said in negative.[26] xxx Q A You were present when Investigator Gerardo Tamayo enumerated to the accused his constitutional rights? Yes.

It was Special Agent Tamayo who told the accused of his constitutional rights and not you?

At first, it was Special Agent Tamayo who informed him of his constitutional rights and I again asked him whether his statement to be given by him are voluntary and not coerced. You asked the accused only if his statement are voluntary? Yes. And that question was asked after the sworn statement was made and ready for signing, right? Before and after. The right to which the accused had been allegedly informed by Agent Tamayo of his right to remain silent and the right to choose his own counsel was indicated in the sworn statement? Yes. No other right? All the rights. And what are these rights? His right to independent counsel, his right to remain silent and he has the right to choose. So the constitutional rights of the accused to which he was informed were all enumerated in the sworn statement, right? Yes.[27] xxx

Q A Q A Q

A Q A Q A

Q A

Since it was the NBI who requested you to appear on your office, what did you do when you arrived?

COURT: Witness may answer. A When I arrived there, I asked the NBI, Gerry Tamayo if this is the accused, sitting beside him. I also talked to the accused and I informed him that I am his counsel, per request by NBI, Gerry Tamayo and I also asked him if he will still continue to give his statement voluntarily, that he was not coerced of course to give his sworn statement.

ATTY. CARASCO: That will be all, Your Honor.

COURT: Q A Is that the only question that you asked to the accused? As far as I can remember, the question and answer started right away, so I have no opportunity to talk to him longer. You did not ask him the effect of his voluntary confession? It w as part of the constitutional rights. My question is whether or not you have told the accused regarding the effect of his voluntary confession? Yes. What did he say? He still continued, Your Honor. Did you explain him in Visayan dialect? Yes. All were translated into Visayan dialect.[28] x x x (Emphasis and underscoring supplied) The affidavit of retraction, attached to the defenses demurrer

Q A Q A Q A Q A

to evidence - basis of its

thesis that Panangins sworn statement of January 23, 20002 was flawed due to its involuntariness, being hearsay, the above-quoted categorical statements of Atty. Sarsaba claiming otherwise stands unrefuted. The burden of the evidence thus passed to the defense. The trial courts ruling that even if Panangins confession were not retracted, it is still inadmissible, being the fruit of [a] poisonous tree or illegal arrest, Sections 2 and 3 of Art. III of the Constitution read:[29]

xxx

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, . . .

SEC. 3. . . .

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

The inadmissible evidence termed as fruit of a poisonous tree in jurisprudence is that contemplated in above-quoted constitutional provisions. It refers to object, not testimonial, evidence. And it refers to an object seized in the course of an illegal search and seizure.

In fine, since as reflected above, the trial court committed not only gross errors of judgment but also grave abuse of discretion in the grant of the defenses demurrer to evidence, no valid judgment was rendered, preventing jeopardy to attach.

A remand of the case for further appropriate proceedings is thus warranted and it does not violate the accuseds right against double jeopardy.

This Court will not close its eyes to miscarriages of justice brought about by precipitate actions taken by trial courts in criminal cases resulting to the acquittal of the accused. As the court of last resort, it is its sacred duty to maintain its vigilance against the haphazard application of the finality of acquittal rule on the ground of double jeopardy, to insure that lawbreakers do not seek refuge thereunder to the prejudice of public justice.

A final note. Also en passant, in holding that the extra-judicial confession of Panangin is inadmissible and that the testimonial evidence adduced by the prosecution amounts to mere suspicions and speculations, the trial court in effect held that no evidence imputing authorship of the crime to the accused was presented. But an acquittal based on that ground closes the door to civil liability, for a person who has been found not to be the perpetrator of any act or omission cannot be held liable for such act or omission.[30]

WHEREFORE, the petition is hereby GRANTED. The April 7, 2003 Decision of the Regional Trial Court of Misamis Oriental, Branch 44 in Criminal Case No. 2002-349 is hereby SET ASIDE and the case is REMANDED to said court for further proceedings in line with the foregoing disquisitions.

SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Associate Justice Chairman

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

RENATO C. CORONA Associate Justice

CANCIO C. GARCIA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN Associate Justice Chairman

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR. Chief Justice

[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15]

Exhibit A; Records at 7-10. Records at 115-118. Id. at 4. Id. at 2. Id. at 42-43. Exhs. H, H-1, H-2 and H-3; Records at 30. Transcript of Stenographic Notes (TSN), July 18, 2002 at 4-46. Id. at 46-71. TSN, October 17, 2002 at 12-26. Exhibit P; Records at 20-22. TSN, October 17, 2002 at 2-12. Exhibit E; Records at 18-19. Records at 157-164. Id. at 165-166. Id. at 138-154.

[16] [17] [18] [19]

Rollo at 32-38. Id. at 13-14. 423 SCRA 605, 615 (2004). 447 SCRA 291, 307-308 (2004). Vide Sanvicente v. People, 392 SCRA 610, 615-617 (2002); Ong v. People, 342 SCRA 372, 387 (2000). Yuchengco v. Court of Appeals, 376 SCRA 531, 541 (2002). 308 SCRA 687, 698 (1999). 138 SCRA 166, 170-171 (1985). 376 SCRA 596, 606-608 (2002). TSN, July 18, 2002 at 9-10. Id. at 11. Id. at 13-14. Id. at 32-33. Id. at 44-46. Art. III, THE 1987 PHILIPPINE CONSTITUTION. Eusebio-Calderon v. People, 441 SCRA 137, 147 (2004) citing Manantan v. Court of Appeals, 350 SCRA 387, 397-398 (2001).

[20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30]