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RIGHT TO DUE PROCESS AURORA MEJIA, vs. HON. MANUEL PAMARAN, HON. ROMEO ESCAREAL, HON.

CONRADO MOLINA, Presiding Justice and Associate Justices of the First Division SANDIGANBAYAN, and PEOPLE OF THE PHILIPPINES GANCAYCO, J.:This is a petition for review of the decision of the SANDIGANBAYAN of April 23, 1981, the dispositive part of which reads as follows: WHEREFORE, judgment is hereby rendered as follows: 1. In Criminal Case No. 1988, accused Aurora Mejia y Rodriguez is hereby found guilty beyond reasonable doubt of violation of paragraph (b), Section 3 of Republic Act No. 3019 and is hereby sentenced to an indeterminate imprisonment ranging from FOUR (4) YEARS and ONE (1) DAY as minimum to SEVEN (7) YEARS as maximum, to suffer perpetual disqualification from public office and to indemnify the victim Josefina Meimban the sum of Pl,000.00 representing the money given to her; and 2. In Criminal Case No. 1989, accused Aurora Mejia y Rodriguez hereby found guilty beyond is and reasonable doubt of violation of paragraph (b), Section 3 of Republic Act No. 3019 and is hereby sentenced to an indeterminate imprisonment ranging from FOUR (4) YEARS and ONE (1) DAY as minimum to SEVEN (7) YEARS as maximum, to Buffer perpetual disqualification from public office and to indemnify the victim Pilar Bautista the amount of P500 representing the money given to her. Accused is further ordered to pay the costs of these proceedings. In this petition, petitioner raises the following issues: 1. WHETHER OR NOT RESPONDENT SANDIGANBAYAN IN TAKING COGNIZANCE OF THE CASES AGAINST PETITIONER AND IN EVENTUALLY CONVICTING HER, ACTED WITHOUT JURISDICTION AND IN VIOLATION OF THE GUARANTY OF DUE PROCESS OF LAW CONSIDERING THAT IT HAS NEITHER BEEN CREATED AS MANDATED BY THE CONSTITUTION NOR CONSTITUTED AS CONCEIVED BY THE DECREE FOR ITS CREATION; 2. WHETHER OR NOT THE PROCEEDINGS TAKEN BY RESPONDENT SANDIGANBAYAN IN THE CASE AT BAR ARE VOID AB INITIO CONSIDERING THAT THE DECREE CREATING IT PROVIDE FOR THE PROCEDURES THAT PARTAKES THE NATURE OF AN EXPOST FACTO LAW AND SUCH PROCEDURES VIOLATE THE GUARANTY TO EQUAL PROTECTION OF THE LAW CONSIDERING THAT DIFFERENT AND PREJUDICIAL METHOD OF APPEAL IS PRESCRIBED; 3. WHETHER OR NOT PETITIONER MAY BE CONVICTED OF AN OFFENSE NOT ALLEGED IN THE INFORMATION AS WHEN THE PRETENDED REQUEST AND RECEIPT OF MONEY FROM THE COMPLAINING WITNESS WAS ALLEGEDLY IN CONSIDERATION OF "THE EARLY SETTING OF A MOTION TO WITHDRAW COMPROMISE AGREEMENT AND A FAVORABLE RESOLUTION THEREON "WHEN SAID COMPLAINANT WAS NEVER A PARTY TO ANY COMPROMISE AGREEMENT (Crim. Case No. 1988); 4. WHETHER OR NOT THE PETITIONER MAY BE CONVICTED ON FATALLY DEFECTIVE INFORMATION AS WHEN SAID INFORMATION CHARGES THAT PETITIONER ALLEGEDLY DEMANDED AND RECEIVED P500 AND THE SANDIGANBAYAN MADE A FINDING THAT THE AMOUNT WAS P1,000 Criminal Case 1988) AND WHEN THE INFORMATION CHARGES THAT PETITIONER ALLEGEDLY REQUESTED AND RECEIVED P1,000 AND THE SANDIGANBAYAN MADE A FINDING THAT THE AMOUNT WAS P500 (Crim Case No. 1989) (Annexes "B" and "C")

5. WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE ON RECORD TO JUSTIFY THE VERDICT OF CONVICTION OF PETITIONER CONSIDERING THAT THE PROSECUTIONS EVIDENCE WAS MAINLY HEARSAY AND THE MOTIVES OF COMMENT COMPLAINANTS CLEARLY ESTABLISHED; 6. WHETHER OR NOT THE PETITIONER IN HER CAPACITY AS BRANCH CLERK OF COURT NTERVENES IN SETTING CASES FOR HEARING AND FORMULATES RESOLUTIONS THEREON; 7. WHETHER OR NOT THE RESPONDENT SANDIGANBAYAN COULD DISREGARD ESTABLISHED RULES OF PROCEDURE, AS WHEN IT ALLOWED THE RECALL OF PETITIONER, AFTER EXHAUSTING CROSS-EXAMINATION, AND SUBJECTED HER TO ADDITIONAL CROSS-EXAMINATION ON ALLEGED ATTEMPT ON PETITIONER'S PART TO BRIBE PROSECUTOR CRISTINA PATERNO, WHICH SHOULD HAVE BEEN PART OF THE PROSECUTION'S EVIDENCE IN CHIEF. The findings of facts of the respondent court are as follows: The instant prosecutions had their roots on six (6) ejectment cases filed separately in the City Court of Manila by Eusebio Lu against Feliciano F. Endangan, Josefina Meimban, Teodorico Bontia, Rolando Antillon, Jose Mabalot and Vicente Villamor. All were decided by the City Court of Manila against the defendants, all of whom appealed in due time to the Court of First Instance of Manila where the cases were raffled to Branch XXVI, presided over b the Honorable Jose P. Alejandro, docketed therein as follows: Civil Case No, L-22794 (Feliciano F. Endangan), Civil Case No. L-22795 (Josefina Meimban). Civil Case No. L-22796 (Teodorico Bontia), Civil Case No. L-22797 (Rolando Antillon), Civil Case No. L22798 (Jose Mabalot), Civil Cam No. L-22799 (Vicente Villamor), On August 12, 1979, five (5) of the defendants-appellants, namely, Endangan (Case No. L22794), Bontia (Case No. L-22796, Antillon (Case No. L-22797), Mabalot (Case No. L-22798) and Villamor (Case No. L-22799) entered into a compromise agreement with the plaintiff, Eusebio Lu whereby the appellants individually received from the appellee the sum of P5,000 in consideration of which the appellants agreed to vacate the premises in question and remove their houses therefrom within sixty (60) days 3m the date of the execution of the agreement, failing which the appellee shall have the authority to demolish the appellant's houses with costs thereof chargeable against them the compromise agree went was-submitted to the court. Josefina Meimban, the defendants-appellant-in Case No. L-22795, did not join her co-defendantsappellees in entering into the compromise agreement (Exh. "A"). Up to that stage of the cases, the counsel of record of the defendant-appellants was Atty. S. G. Doron., On August 22, 1979, Atty. Modesto R. Espano of the Citizens Legal Assistant Office (CLAO), wrote Atty. Doron to inform him that Mrs. Meimban has sought the assistance of the CLAO regarding her case, and asked that the records of the case be sent to Mm. (Exh. "F-l"). As a consequence, Atty. Doron filed on August 30, 1979 his MOTION TO WITHDRAW APPEARANCE as counsel for defendant-appellant Josefina Meimban in Civil Case No. L-22795. (Exh. "F"). In short, while the five (5) other defendantsappellants, Endangan, Bontia, Antillon, Mabalot and Villamor, have decided to settle with the plaintiff through compromise agreement that they signed, Josefina Meimban resolved to prosecute her appeal in her own case, Civil Case No. L-22795. These backdrops are not disputed. What transpired while the cases were pending in the Court of First Instance of Manila insofar as material to

the prosecutions at bar, are matters contested by conflicting evidence of the prosecution and the defense. Josefina Meimban testified that she followed up her case in Branch XVII of the Court of First Instance of Manila and had occasion to talk to Danilo Buenaventura of that Branch who told her that her case was already submitted for decision. She sought assistance from the CLAO where she was instructed by Atty. Espano to find out the real status of the case. She returned to the court sometime in July 1979 and that was when she first came to know Atty. Aurora Mejia who told her that the case has not yet been decided because there was still one party who has not signed the compromise agreement prepared by Atty. Doron. Atty. Mejia also remarked that she was surprised why rich people were helping in that case, like a certain Atty. Lu a brother of the plaintiff, who has been approaching the presiding judge; and then told her she would help them provided they give Pl,000 each for a gift to the Judge, to which she replied she would broach the matter to her companions. From the court, she went to Atty. Modesto Espano and told the lawyer the case was not yet submitted. Atty. Espano instructed her to get her papers from Atty. Doron, which she did. Thereafter, she told Pilar Bautista, daughter of defendant Jose Mabalot in Civil Case No. L-22798, and Gloria Antonio, daughter of defendant Vicente Villamor in Civil Case No. L22799, about the help offered by Atty. Mejia. The two said they would think it over as they had already signed something. When she went to the court to deposit her rentals Atty. Mejia asked her if her companions were agreeable to the suggestion and she replied she had already told them and that they would consider the matter. On August 22, 1979, Meimban and Atty. Espano went to the City Hall and Atty. Espano filed his formal appearance as counsel for Meimban in Civil Case No. L-22795, Branch XXVI. On that Atty. Mejia again mentioned to Meimban the gift she was asking from the latter to be given to the Judge, and added that if Meimban wanted to win the case and she wanted her help, they have to give to the Judge because she was the one making the decision. She was not able to give any reply. She went home without telling Atty. Espano what Atty. Mejia had told her When she returned on August 30, 1979 to deposit her rental, Atty. Mejia asked her why her companions were not yet moving when they had a chance of winning the case provided they returned the money they received from the plaintiff under the compromise agreement. She replied she would tell them again. When she told Pilar Bautista and Gloria Antonio about it, the two replied that if they could still win their cases by returning the money, she accompany them to Atty. Espano. They saw Atty. Espano on October 26, 1979. After knowing the purpose of their visit, Atty. Espano agreed to help Bautista and Antonio and prepared a MOTION TO WITHDRAW THE COMPROMISE E AND TO FILE MEMORANDA (Exh."B") Bautista and Antonio signed the motion for their fathers. The three women Meimban Bautista and Antonio and Atty. Espano proceeded to the City Hall and filed the motion. From the court they went down to the canteen at the mezzanine floor of the City Hall where Atty. Espano left them to have some documents xeroxed. Atty. Mejia followed them to the canteen. This time Atty. Mejia told Bautista she could help them provided they gave her P500 for expenses. Bautista and Antonio just kept silent. Atty. Espano returned to the canteen and rejoined them. Atty. Mejia told Atty. Espano there was a chance of winning the Meimban case. Before leaving them, Atty. Mejia told her Meimban to take care of her companions.

When she deposited her rentals on October 30, 1979, Atty. Mejia told her the Judge needed the money right away. She promised to give Pl,000 on November 20, 1979. From there she went to Atty. Espano and told him about it. At Atty. Espano's suggestion they agreed to meet in Branch XXVI at 10:00 a.m. on November 20 when the, would entrap Atty. Mejia in the delivery of the money with the assistance of her policeman friend assigned in the office of the Mayor. She arrived in court with Sylvia Dizon from whom she borrowed P500 to complete the Pl,000 at about 11:00 a.m. but did not meet Atty. Espano. At Atty. Mejia's instruction they waited for about an hour Sylvia Dizon seated outside in the corridor fronting the door of Atty. Mejia office. Atty. Mejia asked her if she had brought the money, she replied she had and gave the P1,000 to Atty. Mejia. She and Sylvia Dizon then left and looked for Atty. Espano in the different sala.8 of the court. Not finding him, they went to his office. Atty. Espano got mad upon knowing that she had given the money to Atty. Mejia and told her not to give anymore. December 7, 1979 was the date set for the hearing of the MOTION TO WITHDRAW THE COMPROMISE AND TO FILE MEMORANDA (Motion in short) filed by Pilar Bautista and Gloria Antonio in behalf of their father (Exh- "C"). Meimban and Pilar Bautista went to Branch XXVI for that hearing. Atty. Mejia told them to wait and that if an oppositor to the Motion would appear, she would accompany them to the sala of Judge Cui of Branch XXV (the pair branch of Branch XXVI 1), where the Motion would be heard since Judge Alejandro of Branch XXVI was on leave. While they were waiting, Atty. Mejia approached her Meimban and said no oppositor might arrive, and asked her if Bautista had brought one-half (1/2) of the P1,000.00. She asked Bautista and the latter replied she did not have anything as she thought it was Meimban who had the money. In the meantime, Atty. Mejia left and told her that if Bautista would have the money, just put it in an envelope. Bautista borrowed P500 from her, which was supposedly intended for the branch Clerk of Court of Judge Cui. Bautista placed the money in an envelope and the two of them, Bautista and Meimban, went to Atty. Mejia's office. Bautista handed the envelope containing the money to Atty. Mejia who received it. Pilar Bautista y Mabalot confirmed that her father, Jose Mabalot, had received P5,000.00 from the plaintiff in Civil Case No. L-22798 pursuant to the compromise agreement that her father had signed; that while they were waiting for their house to be demolished Josefina Meimban told her they still had hope of winning the case because she has been frequenting Branch XXVI and talking with Atty. Mejia who had promised to assist them; that Gloria Antonio, the daughter of one of the other defendants, Vicente Villamor, convinced her that they try it; and that they asked Meimban to accompany them to Atty. Espano of the CLAO on October 26, 1979. She testified further that Atty. Espano prepared the Motion at hers and Antonio's request which they signed for their fathers (Exh. "B"). With Atty. Espano, Meimban and Antonio, they went to the court and Mod the motion with Atty. Mejia. They proceeded to the canteen, and while there Atty. Espano left to have some documents xeroxed. Atty. Mejia arrived shortly after Atty. Espano had left. Atty. Mejia told them if they wanted the resolution of the Motion expedited they each give Pl,000.00 for expenses. They did not say anything. When Atty. Espano rejoined them, Atty. Mejia commended him for his memorandum and said it was well prepared and there was hope in the case. Atty. Mejia then left and they went home after Meimban paid their bill which they shared among themselves. On December 6,1979, in the afternoon, she and Meimban went to Branch XXVI to file a motion for postponement of the hearing of the Motion scheduled

the next day, December 7,1979. Atty. Mejia told them to come just the same on the following day despite their motion for postponement. So they did return on December 7, reaching the court at about 8:30 a.m. Atty. Mejia told them to wait because oppositors to the Motion might appear. When no oppositor appeared, Atty. Mejia asked them to give even one-half of the amount intended for expenses because the case was with the a of Judge Cui as Judge Alejandro was absent, and the money was intended for the clerk of court of Judge Cui. She asked Meimban if she had money with her and it was from Meimban that she borrowed P500. At Meimban's suggestion that they put the money in an envelope, they secured one near the GSIS building, put the P500 in it and returned to the office of Atty. Mejia to whom she handed the envelope containing the money. Atty. Mejia received the envelope and placed it inside her desk drawer. A few days later, she received a copy of an order dated December 10, 1979 signed by Judge Cui denying their Motion (Exh. "D"). She forthwith went to Atty. Mejia and asked her what happened. Atty. Mejia answered that she go to Meimban and get the P500 because Meimban still lacked Pl,000, and that she also tell Mrs. Meimban to see her (Atty. Mejia). She went to Meimban and told her what Atty. Mejia said. They went to Atty. Espano who told her not to give anything. Sylvia Dizon y Resurreccion confirmed that she loaned P500 to Josefina Meimban and went with her to the court on November 20, 1979 to verify if Meimban really needed the money to give to Atty. Mejia. She was seated at the corridor near the door of Atty. Mejia's office which was partially open, and she saw Meimban handed an envelope to Atty. Mejia who put it inside her desk drawer. Atty. Modesto Espano y Rodriguez was with the lawyer assigned by the CLAO to assist Josefina Meimban in her case. He was with Meimban on August 22, 1979 when he filed his formal appearance in the case pending before Branch XXVI of the Court of First Instance. On the occasion, he saw Atty. Mejia talk to Meimban. Later, on October 26, 1979, Meimban told him that Atty. Mejia was demanding money and gift to be given to the presiding judge of Branch XXVI, of the Judge and that Atty. Mejia would reverse the decision of the City Court in the appealed case. it was also on that day, October 26, 1979, in his office at the CLAO that he met Pilar Bautista and Gloria Antonio for the first time accompanied by Meimban. Bautista and Antonio were also seeking assistance from the CLAO in their desire to withdraw a compromise agreement that their fathers had signed and submitted to the court for approval. From his interview of Bautista and Antonio, he gathered that Bautista's father, Jose Mabalot, and Antonio's father Vicente Villamor, were defendants in the ejectment cases filed by Eusebio Lu and that their fathers were misled by one Endangan and Atty. Doron into signing the agreement. When he asked the whereabouts of their fathers he was told that Vicente Villamor was in Cotabato and Jose Mabalot was an octogenarian. He also gathered from Bautista and Antonio that they had decided to withdraw the compromise agreement because Atty. Mejia had told them that they had a chance of winning the case by having the decision of the lower court reversed if they returned the P5,000 given by the plaintiff, as she was the one preparing the decisions for Branch XXVI. He prepared the Motion (Exh. "B") and had it signed by Bautista for Jose Mabalot, and Antonio for Vicente Villamor. That same afternoon of October 26, 1979, he filed the Motion in court with Meimban, Bautista and Antonio. Meimban told him that Atty. Mejia wanted to talk to her at the canteen. He and his female companions went ahead to the canteen, but he left them there to have some papers xeroxed at the ground floor

of the City Hall. When he returned to the canteen, he saw Atty. Mejia talking to his women companions. He joined them. Atty. Mejia told him that they could win the Meimban case because the decision of the lower court was against Batas Pambansa Blg. 25, and advised him to file a good memorandum. Atty. Mejia also mentioned that there was a good chance of winning the Mabalot and Villamor cases provided the P5,000 each received by the defendants was returned. He did not say anything since he had advised his clients already not to give Atty. Mejia anything. After leaving the canteen and while they were still at the ground floor his clients told him that Atty. Mejia was demanding money from them for expenses for the Judge. He reiterated his advise to them not to give any. Testimony was also given regarding an alleged attempt of Atty. Mejia to bribe the Tanodbayan Investigator who investigated the complaints that led to the filing of the instant cases. Christina Corall-Paterna declared that she signed and submitted her recommendation to prosecute the accused for violation of the Anti-Graft and Corrupt Practices Act on the complaint of Josefina Meimban and Pilar Bautista, and to drop the other complaints, on August 27, 1980. On September 3, 1980, Atty. Mejia came to her to inquire (nangumusta) She replied she had already collated the evidence and submitted her recommendation to Director Herrera. Atty. Mejia then placed something on her table wrapped in pink tissue paper and immediately stood up and left without saying anything. She opened the wrapper and found an intricate gold chain with a pendant bearing an inscription of letter "C." Her initial reaction was to return it but on second thought that she needed somebody to witness the returning of the jewelry, and it being almost 4:00 p.m. and Atty. Mejia might not return to her office anymore, the waited till next morning and asked one of their employees, Dante Ramos, to return the gold chain the first hour of September 4. Dante Ramos was able to return it. Under the first assigned error, petitioner contends that respondent court acted without jurisdiction and in violation of the guaranty of due process of law as it has neither been created as mandated by the Constitution nor constituted as conceived by the decree for its creation. Petitioners stress that the creation of the Sandiganbayan by Presidential Decree No. 1606 is an arrogation by the President of the power vested by the Constitution in the National Assembly. In the case of Nunez vs. Sandiganbayan 2 this Court categorically ruled on the issue when it held: It is to be made clear that the power of the then President and Prime Minister Ferdinand E. Marcos to create the Sandiganbayan in 1978 is not challenged in this proceeding. While such competence under the 1973 Constitution contemplated that such an act should the National Assembly the 1976 Amendments made clear come from the National Assembly that he as incumbent President" shall continue to exercise legislative powers until martial law shall have been lifted. 3 Thus, there is an affirmation of the ruling of this Court in Aquino Jr. v. Commission on Elections 4 decided in 1975. In the language of the ponente, Justice Makasiar, it dissipated "all doubts as to the legality of such lawmaking authority by the President during the period of Martial Law, ... . 5 As the opinion went on to state: "It is not a grant of authority to legislate, but a recognition of such power as already eating in favor of the incumbent President during the period of Martial Law. 6 Under the second assigned error it is alleged that the procedure provided for by the Sandiganbayan are and hence all proceedings taken against petitioner are void ab initio being investigation violation of the Constitution.

It is further argued that only one stage of appeal is available to the petitioner under PD No. 1606 which effectively deprives her of the intermediate recourse to the Court of Appeals and that in said appeal to this Court only issues of law may be raised and worse still the appeal has become a matter of discretion rather than a matter of right. Petitioner contends this is a denial of the equal protection of the law. Again, in Nuez 7 this Court effectively disposed of this issue when it held: 2. Petitioner in memorandum invokes the guarantee of equal protection in seeking to Presidential Decree No. 1486. What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration. 8 The Ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the Idea of law. 9 There is recognition, however, in the opinion that what in fact eats "cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. 10Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 11 3. The premise underlying petitioner's contention on this point is set forth in his memorandum that: 1. The Sandiganbayan proceedings violates petitioner's right to equal protection, because appeal as a matter of right became minimized into a mere matter of discretion; appeal likewise was shrunk and limited only to questions of law, excluding a review of the facts and trial evidence; and there is only one chance to appeal conviction, by certiorari to the Supreme Court, instead of the traditional two chances; while all other estafa indicates are entitled to appeal as a matter of right covering both law and facts and to two appellate courts, i.e., first to the Court of Appeals and thereafter to the Supreme Court. 12 That is hardly convincing, considering that the classification satisfies the test announced by this Court through Justice Laurel in People v. Vera 13 requiring that it must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. 14 To repeat, the Constitution specifically makes the urgency of which cannot be denied, namely, dishonesty in the public service. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as

petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Petitioner moreover, cannot be unaware of the ruling of this Court in Co Chiong v. Cuaderno, 15 a 1949 decision, that the general guarantees of the Bill of rights included among which are the due process of law and equal protection clauses must "give way to [a] specific provision, in that decision, one reserving to "Filipino citizens of the operation of public services or utilities. 16 The scope of such a principle is not to be con stricted, It is certainly broad enough to cover the instant situation. 4. The contention that the challenged Presidential Decree is contrary to the ex post facto provision of the Constitution is similarly premised on the allegation that "petitioner's right of appeal is being diluted ordered efficacy wise ... 17 A more searching scrutiny of its rationale would demonstrate the lack of persuasiveness of such an argument. The Kay Villegas Kami 18 decision, promulgated in 1970, cited by petitioner, supplies the most recent and binding pronouncement on the matter. To quote from the ponencia of Justice Makasiar: An ex post facto law is one which: (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful, and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. 19Even the most careful scrutiny of the above definition fails to sustain the claim of petitioner. The lawful protection to which an accused" has become entitled" is qualified, not given a broad scope. It hardly can be argued that the mode of procedure provided for in the statutory right to appeal is therein embraced. This is hardly a controversial matter. This Court has spoken in no uncertain terms. In People v. Vilo, 20 a 1949 decision, speaking through the then Justice, later Chief Justice Paras, it made clear that seven of the nine Justices there composing this Court, excepting only the ponente himself and the late Justice Perfecto, were of the opinion that Section 9 of the Judiciary Act of 1948, doing away with the requirement of unanimity under Article 47 of the Revised Penal Code with eight votes sufficing for the imposition of the death sentence, does not suffer from any constitutional infirmity. For them its applicability to crimes committed before its enactment would not make the law ex post facto. 5. x x x x 9. The argument based on denial of due process has much less to recommend it. In the exhaustive forty-two page memorandum of petitioner, only four and a half pages were devoted to its discussion. There is the allegation of lack of fairness. Much is made of what is characterized as "the tenor and thrust" of the leading American Supreme Court decision, Snyder v. Massachusetts. 21 Again this citation cuts both ways. With his usual felicitous choice of words, Justice Cardozo, who penned the opinion, emphasized: "The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in

very concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable however, which may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament We are to keep the balance true. 22 What is required for compliance with the due process mandate in criminal proceedings? In Arnault v. Pecson, 23 this Court with Justice Tuason as ponente, succinctly Identified it with a "a fair and impartial trial and reasonable opportunity for the preparation of defense. 24 In criminal proceedings then, due process is satisfied if the accused is "informed as to why he is proceeded against and what charge he hall to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being implied in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction. 25 The above formulation is a reiteration of what was decided by the American Supreme Court in a case of Philippine origin, Ong Chang Wing v. United States 26 decided during the period of American rule, 1910 to be precise. Thus: This court has had frequent occasion to consider the requirements of due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law. 27 Under the third assigned error it is alleged that the information in Criminal Case No. 1988 states that the pretended request and receipt of money by petitioner from companions t witness Josefina Meimban was in consideration of the early setting of the hearing of the motion to withdraw the compromise agreement and to secure a favorable resolution thereof when in fact said complainant was never a party to any compromise agreement so that she could not be convicted of an offense not alleged in the information. Under the fourth arraigned error the petitioner alleges that she cannot be convicted on the two defective informations, the first of which (Crim. Case 1988) she allegedly demanded and received P 500.00 which the respondent court found to be P1,000.00; and that in Criminal Case No. 1989 the information charged that the petitioner requested and received P l,000.00 while the respondent court found that the amount received was P500.00 so petitioner pleads she cannot be convicted on such defective informations. Under both informations petitioner is charged for violation of Section enumerates the corrupt practices of any public officer which are declared unlawful as among others Sec. 3 (b). Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. The elements of the offense are that 1. It must be committed by 1) a public officer; 2) who requested and who received a gift, present, etc.; 3) the gift, present, etc. was for the benefit of said public officer;

4) said public officer requested and/or received the gift, present, etc. in connection with a contract or transaction with the government; and 5) said officer has the right to intervene in such contract or transaction in his/her official capacity under the law. The finding of the respondent court is that the petitioner demanded and received money from the persons involved in certain cases in Branch 26 of the Court of First Instance (CFI) of Manila where the petitioner was the branch clerk of court in consideration of a promise that she will help in getting them a favorable judgment. In the case of the complainant Josefina Meimban although it is true that she did not enter into an amicable agreement regarding her case as erroneously alleged in the information, nevertheless it has been shown, and as it is also alleged in the information, that she yielded to the request of petitioner for some money in consideration of a promise that petitioner wig get a favorable judgment. In a prosecution under the foregoing provision of the Anti-Graft Law the value of the gift, money or present, etc. is immaterial nor is it determinative of the guilt or innocence of the accused or the penalty to be imposed. What is penalized is the receipt of any gift, present, share, percentage, or benefit by a public officer in connection with a contract or transaction with the Government, wherein the public officer has to intervene in his official capacity. Under the fifth assigned error petitioner argues that there was an ulterior motive on the part of the complainants in testifying against her and that the prosecution evidence is hearsay. Petitioner therefore raises the question of credibility of the witnesses. The rule is that the findings of facts of the respondent court are conclusive unless there are some facts or circumstances that may have been overlooked that may otherwise affect the result of the case. Petitioner has not successfully demonstrated any cogent reason why this Court should depart from this rule. Petitioner imputes that Meimban and Bautista testified against her as she refused to intercede in their behalf with the judge to secure a favorable action. The court is not persuaded. Contrary to her pretension that prosecution witnesses were inmotivated in testifying against her. The Court finds that said complaining witnesses would not impute the serious charges against petitioner were it not the truth. Moreover, the testimony of said complaining witnesses are corroborated by Atty. Modesto Espano and Sylvia Dizon who are certainly disinterested witnesses. The bare denial of petitioner cannot prevail over such positive evidence of the prosecution. Under the sixth assigned error petitioner alleges that she does not intervene in the setting of the hearing of cases and she does not formulate resolutions thereof. The branch clerk of court is the administrative assistant of the presiding judge whose duty is to assist in the management of the calendar of the court and in all other matters not involving the exercise of discretion or judgment of the judge. It is this special relation of the petitioner with the judge who presumably has reposed confidence in her which appears to have been taken advantage of by the petitioner in persuading the complainants to give her money in consideration of a promise to get a favorable resolution of their cases. Under the seventh assigned error the recall of petitioner for further crossexamination on her attempt to bribe the Tanodbayan prosecutor is a matter within the sound discretion of respondent court. Indeed the testimony of said prosecutor that petitioner tried to persuade her not to prosecute petitioner by giving her a gold chain with pendant wrapped in tissue paper which said prosecutor returned is material evidence to establish the guilt of petitioner. After a careful review of the records of the case, the Court finds and so holds that the guilt of the petitioner of the offenses charged against her has been established beyond reasonable doubt. She took advantage of her position as branch clerk of court by persuading the offended parties Josefina Meimban and Pilar Bautista to deliver to her the sums of P 1,000.00 and P500.00, respectively, in consideration of a promise that petitioner WW get a favorable resolution of their cases in court. The evils of corruption are slowly corroding the pillars of our society. Our courts are not spared by this plague. More often than not those in government who are persuaded or tempted if not actively involved in graft and corruption

are the court personnel who lead litigants to believe that they could get a favorable judgment or action in their favor or are otherwise approached or persuaded to so help for a consideration. Worse still there are instances when the corruption reaches the level of the judge which spells the doom of our quest for an honest and impartial administration of justice. Anyone involved in such corrupt exercise should be denounced. This Court does not hesitate to apply the scalpel to cut off the roots of this cancer in the judicial system that can destroy the very purpose of its existence. Those who are involved in the administration of justice from the highest to the lowest level must live up to the strictest standard of honesty and integrity in the public service. The general public should respect and support such imperative. No attempt to influence them one way or the other much less to bribe them should be made. One cannot buy a bad case nor sell a good one. No amount of money can make out a good case out of a bad one. And even if one succeeds in so doing it would certainly be uncovered and reversed on appeal. Justice will prevail. This case should be an object lesson for those in the public service. All that we need to do is to go back to the too well known rule of conduct that honesty is the best policy. Those who cannot live up to this criterion should get out of the government service. It is as simple as that. WHEREFORE, the petition for review is DENIED for lack of merit, with costs against petitioner. [G.R. No. 148560. November 19, 2001]

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. BELLOSILLO, J.: JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test.

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution.[3] Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the

facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and welldefined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or

accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION

EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them;[6] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,[7] unless it is evident that the legislature intended a technical or special legal meaning to those words.[8] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative

deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that -

REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be....

REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts. REP. ISIDRO: So in other words, thats it. When we say com bination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan[9] that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x

vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.[10] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.[11] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.

speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."[19] In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."[21] Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected.[22] It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme Court pointed out in Younger v. Harris[24] [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.[27] In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner,

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."[14] A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected

is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The AntiGraft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal.[29] The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.[31] A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series ofovert or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32] We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder xxxx It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby. Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33]

However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34] Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."[35]

political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[37] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. PRESUMPTION OF INNOCENCE G.R. No. L-52245 January 22, 1980 PATRICIO DUMLAO, SALAPANTAN, ROMEO B. IGOT, and ALFREDO JR., petitioners,

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:[36]

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-

vs. COMMISSION ON ELECTIONS, respondent. MELENCIO-HERRERA, J: This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof.Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions: Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. .... (Batas Pambansa Blg. 51) Sec. 4.

Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.) In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised, Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I . The procedural Aspect At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A. Actual case and controversy.

Sec. 4. ... Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact. ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied). Section 1. Election of certain Local Officials ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52) Section 6. Election and Campaign Period The election period shall be fixed by the Commission on It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: "Section 2. The Commission on Elections shall have the following power and functions: 1) xxx

2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied) The aforequoted provision must also be related to section 11 of Art. XII-C, which provides: Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. B. Proper party. The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress. It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus: ... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer. In the same vein, it has been held: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]). However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial

review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C. Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed. II. The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination. The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides: a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ... The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case. Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first

portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads: SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. [G.R. No. 114396. February 19, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIAM ROBERT BURTON, accused-appellant. DECISION PANGANIBAN, J.: Appellant, a British national, was convicted by the Regional Trial Court of Pasay City, for attempting to transport 5.6 kilograms of hashish, a prohibited drug, through the Ninoy Aquino International Airport. Though caught in flagrante delicto, he denies criminal liability therefor on the novel ground that he was not aware that his traveling bags contained the prohibited drug. He also challenges the credibility of the lawmen who apprehended him. These matters are resolved by this Court in this appeal seeking the reversal of the Decision[1] of the Regional Trial Court of Pasay City, Branch 116,[2] promulgated on July 30, 1993, in Criminal Case No. 92-2117, involving a violation of Section 4, in relation to Section 21 of R.A. 6425, otherwise known as The Dangerous Drugs Act of 1972. Accused-appellant William Information[3] which reads: Robert Burton was indicted under an

That on or about December 26, 1992 at the Ninoy Aquino International Airport in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the accused WILLIAM BURTON y ROBERT while about to depart abroad, did then and there willfully, feloniously and unlawfully carry and transport without legal authority, 5.6 kilograms, more or less of Marijuana (Hashish), a prohibited drug. CONTRARY TO LAW. Upon arraignment, appellant pleaded not guilty.[4] After trial, appellant was found guilty by the trial court. The dispositive portion of the decision reads:[5] WHEREFORE, accused William Burton y Robert is found guilty beyond reasonable doubt of attempting to transport hashish, a derivative of

marijuana, a prohibited drug, weighing about 5.6 kilograms, in violation of Section 4, in relation to Section 21, of Republic Act No. 6425, otherwise known as The Dangerous Drugs Act of 1972; and he is sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000.00. The hashish involved in this case, which is forfeited in favor of the government, is ordered turned over to the Dangerous Drugs Board for proper disposal. SO ORDERED. Hence, this appeal. The Facts

(Exh. FF). The blocks and bar appeared as black items processed in compact. The suspected hashish was confiscated and turned over to the duty collector, and appellant was taken to District Collector Supervisor Bautista. Napuli proceeded to the Investigation Section where he executed an affidavit (Exh. A) regarding this incident.[7]

Flores, Forensic Chemist 2 of the National Bureau of Investigation, testified that she received a letter-request from the Customs Narcotics Interdiction Unit of the Bureau of Customs for chromatographic analysis of the specimen of the confiscated substance from appellant (Exh B).[8] After conducting an examination thereof, she reported in Dangerous Drugs Report No. DD-92-600 (Exh. C)[9] her findings as follows: Weight of specimen before exam. #1=0.4193 gram

The facts of the case, as narrated by the trial court, are as follows:[6] xxxx At about 9:30 in the evening of December 26, 1992, accused Wi lliam Burton y Robert, 30 years old, a British national, checked in at the Ninoy Aquino International Airport (NAIA), Pasay City, for his trip to Sydney, Australia, on board Flight No. 209 of the Philippine Airlines. The accused had two pieces of luggage with him which he passed through the x-ray machine at the departure area of the airport. The machine showed certain portions of the sidings of one bag and the bottom of the other to be dark in color, making its operator to suspect that something illegal was inside them. Upon the request of the Customs examiner in the NAIA to whom the x-ray finding was referred, accused Burton removed all his belongings from the travelling bags. The two bags of the accused were then subjected to another x-ray examination. The same finding was revealed. The accused, together with his two pieces of baggage, was brought to the Customs Office at the NAIA, where, with his consent, the sidings of one bag and the bottom of the other were slashed open. Found inside, sandwiched between thin plastic slabs attached to the upper and lower sides of one bag, and forming the false bottom of the other, were twelve (12) rectangular bricks and one (1) square brick of dark brown materials, each with a thickness of about one-third (1/3) of an inch. Their total weight was five and six-tenths (5.6) kilos. During his investigation, the accused was observed to be walking in an uneasy manner. Suspecting that there was something hidden in his shoes, the investigator requested Burton to remove his shoes to which the accused consented. Retrieved from inside the shoes, hidden between their soles and the upper covers, were four (4) blocks, each about one-fourth () of an inch thick, of the same dark brown substance shaped according to the contour of the soles of the shoes. The articles taken from the two bags and from the pair of shoes of the accused were suspected to be marijuana or hashish by the Customs and the police investigators. Representative samples of the substance were referred to the National Bureau of Investigation (NBI) for examination. The NBI Forensic Chemistry Division and the PNP Crime Laboratory Service found the materials to be hashish, a derivative of marijuana. This substance is a prohibited drug. (Sec. 2(e)(1)(i), Republic Act No. 6425) Evidence for the Prosecution The prosecution presented witnesses Felimon Napuli, Forensic Chemist Julieta Flores, SPO4 Guillermo Zuo, and Forensic Chemist Leslie Chambers. Napuli, a customs examiner, testified that on December 26, 1992, at 9:30 p.m., he was assigned at the inspection lane of the East Pre-Departure Area, Ninoy Aquino International Airport. Upon being informed by the x-ray operator that the x-ray examination showed unidentified objects inside two pieces of appellants luggage, he conducted a thorough examination of said luggage. After obtaining permission from appellant, Napuli slashed the side of the suitcase with a knife and discovered twelve (12) blocks and one (1) bar of a dark substance suspected to be hashish. The dimension of each block was 4 x 7 x inches (Exh. T-EE); and the bar, more or less 4 x 4 x 2/3 inches #2=0.8015 gram Weight of specimen after exam. #1=0.3773 gram #2=0.7213 gram Examinations conducted on the above-mentioned specimen gave POSITIVE RESULTS for HASHISH. xxx xxx xxx HASHISH is a cannabis resin obtained from MARIJUANA.

REMARKS: xxxx

She also submitted a Certification (Exh. D)[10] stating: 1. Brown substance contained in a small transparent plastic bag with markings. Weight of specimen before exam.= 0.4193 gram 2. Brown substance contained in a small transparent plastic bag with markings. Weight of specimen before exam.=0.8015 gram xxx xxx xxx

examinations conducted on the above-mentioned specimen/s gave POSITIVE RESULTS for HASHISH. SPO4 Zuo, team leader of the Philippine National Police Narcotics Command stationed at NAIA, testified that at about 9 p.m. of December 26, 1992, while he was on-duty at the East Pre-Departure Section, he was informed by SPO2 Andres Andal that two pieces of luggage, suspected to contain illegal materials, had passed through the x-ray machine. He went to the x-ray machine where Napuli was conducting a thorough examination of appellants luggage, consisting of a suitcase and a traveling bag. At first, appellant was reluctant to comply with Napulis request to open them and to remove their contents; then, Zuo heard appellant say, Patay. When the two pieces of luggage were passed again through the x-ray machine, Zuo saw on the monitor a dark portion on the side of the suitcase and on the base of the traveling bag. The suitcase and bag were subjected to a thorough examination. Zuo, passing his hand along the interior frame of the suitcase, noticed that the side was thicker than that of an ordinary suitcase. Using a cutter (a bladed instrument), Napuli slashed the outer side and the lining of the suitcase. The hard plastic frame was thicker than the side of an ordinary suitcase and was wrapped with masking tape. When opened, a dark brown substance, shaped into blocks of various sizes and wrapped in masking tape, was concealed between the hard plastic frames. The base of the traveling bag, which was made of two pieces of plastic and wood materials neatly riveted to the bottom of the traveling bag, was taken out

and examined. When opened, more blocks of the same substance were found. A total of twelve blocks and one bar of the brown substance suspected to be hashish, a derivative of marijuana, were found inside appellants luggage. Past midnight, appellant was brought to the Customs Legal Investigation Division, where he was interrogated by customs investigators as to the source of the suspected hashish. Appellant denied having knowledge thereof. Zuo observed appellant to be walking uneasily arousing his suspicion that a deadly weapon or an illegal item could be concealed in his legs or shoes. So he requested appellant to remove his white Reebok rubber shoes. He took pictures while appellant was removing them (Exh. K-M). Customs Police Elpidio Manuel examined said shoes (Exh. I-J) and found four (4) blocks of a similar substance suspected to be(hashish. The blocks were either 2 x 3 x inches or 3 x 5 x inches in dimension, cut to conform to the shapes of the soles of the shoes (Exh. P-S). When asked to comment on this discovery, appellant replied, I have nothing to say. Zuo issued a Receipt for Property Seized (Exh. N)[11] which appellant refused to acknowledge. Chambers, forensic chemist of the PNP Crime Laboratory Services, testified that, at the request of the Chief of Office, NAIA District Office, SOD, PNP NARCOM, she conducted three types of tests: (1) the physical test, which included weighing of the samples and microscopic observation thereof, (2) the chemical test (Duquenois Levine Test), and (3) a confirmatory test (Thin Layer Chromatographic Test). The tests also gave positive results for marijuana (Exh. HH-LL). Evidence for the Defense The defense presented appellant as its sole witness. He is a British national, unemployed and with a physical deformity (his arms are half the normal length) allegedly caused by his mothers having taken the drug Thalidomide during pregnancy. He testified that on December 26, 1992, he went to the NAIA to check in his luggage for his flight to Sydney, Australia, to visit his uncle. Said luggage was purchased on that very same day from a certain John Parry for P10,000.00 together with a tape recorder, leather boots, and several articles of clothing. He explained that he had bought said bags to accommodate his extra belongings and to help Parry raise money for the latters plane fare to Australia. As his luggage was passed through the x-ray machine, the operator found three unidentified dark areas on the top portion of the suitcase near the handle. Brought before Napuli, he was asked to open his black canvass suitcase and to remove his personal belongings therefrom. He was informed that his bags could not be cleared to board the plane because of the unidentified dark portions appearing on the x-ray monitor. So, he gave Napuli permission to open the lining of the suitcase and to remove the base of the travelling bag. Blocks of a substance suspected to be hashish were found inside the lining of the suitcase. He denied having seen them before. A medical kit, containing a syringe, was also found inside his traveling bag. Zuo asked if he was also using heroin. He replied, Hindi. He explained that his physician in Britain advised him to bring his own syringe because, in some countries, the doctors use one syringe for two or three persons. He claimed that he was alarmed and confused when told that he was to be investigated. He asked Andal if he was under arrest; the latter replied in the affirmative and informed him of his rights. Insults were hurled at him because of his deformity. Threats were likewise made; he was told that he could not avoid trouble because nobody knew that he was there. While escorting him to the toilet, Zuo remarked that maybe he was going to the toilet because he was hiding something.

When he returned, the police officer asked to look inside his shoes. After being threatened, appellant handed him his shoes. Zuo examined them and opened the inner soles which yielded more bars of the yet unidentified substance. Zuo returned his shoes and took his picture while he was putting them on. He was detained at the NARCOM office until noon of December 28, 1992. He admitted that his only source of income was a trust fund in an English bank; proceeds of the loan he had obtained from it were sent to the Philippines. Ruling of the Trial Court The trial court convicted accused of attempting to transport prohibited drugs under Section 4, in relation to Section 21, of R.A. 6425. It ruled that the appellant[12] x x x should be deemed to have the intention to possess the marijuana or hashish confiscated from him, in line with the principle that mere possession x x x raises the presumption of guilt and the burden of proof is on the possessor to explain the absence of animus possidendi. Appellant was unable to rebut such presumption arising from his possession of the prohibited drugs. His excuse that he had no knowledge of the hashish was unavailing, as malice or intent to commit the crime is not required in cases of mala prohibita. Issues Appellant alleges that the lower court erred by:[13] I. x x x failing to consider knowledge or awareness of the existence of prohibited drugs as an essential element of the offense charged. II. x x x ruling that the accused failed to destroy the presumption of unlawful intent. III. x x x giving full credence to the testimony of prosecution witness, Mr. Zuno. The main thesis of the defense is that it was not proven that appellant knew that the bags he had checked in at the airport contained a prohibited drug. Appellant further claims that the trial court misunderstood his defense to be lack of criminal intent in carrying the prohibited drug instead of lack of knowledge that he was carrying it. Appellant explains that the trial court confused malice or criminal intent, which is unimportant in malum prohibitum, and animus possidendi or intent to possess a prohibited drug, which is an element of illegal transportation of a prohibited drug. The prosecutions evidence was allegedly overcome by appellants testimony that he bought the luggage and shoes from a certain John Parry without knowing that they concealed hashish. In any event, he challenges the prosecutions evidence, particularly the testimony of Zuo, as unworthy of credence. The Courts Ruling Crime and Punishment Section 4 of Article II of the Dangerous Drugs Act of 1972, as amended by Presidential Decree No. 1675, provides: SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.--The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. x x x x.

As clearly indicated, said provision penalizes the acts of selling, administering, delivering, giving away to another, distributing, dispatching in transit or transporting any prohibited drug. While sale and delivery are given technical meanings under said Act, transportation, distribution and dispensation are not defined.[14] However, in indictments for violation of said provision, the prosecution must establish by clear and convincing evidence that the accused committed any of said unlawful acts at a particular time, date and place.[15] Pursuant to this doctrine, the prosecution submitted in evidence the testimony of witnesses Napuli and Zuo. Napuli testified that:[16]

Now, after Mr. Burton opened his bag, what happened next?

WITNESS: a I immediately conducted the thorough examination, sir. xxx xxx

xxx q a q

What happened next? I pulled out all his clothes then re-x-ray again the bag. Why did you re-x-ray again the bag?

x x x

xxx

xxx

a To determine thoroughly what was really inside the bag, at the sidings of the bag. q Why, Mr. Witness? When you first examined the bag, what did you find inside the bag when you first examined it? a We found out his personal belongings, sir. xxx xxx

q On December 26, 1992, where were you between the time 7:00 in the morning to 7:00 in the evening? a I was assigned at the inspection lane of the Departure Area of the NAIA, sir. q At 9:30 p.m., where were you on that specific date December 26, 1992?

xxx

a At 9:30 in the evening, December 26, 1992, I was assigned at the inspection lane at the Departure Area of the NAIA, sir. PROS. VELASCO: q On that specific time and date, do you remember anything unusual, Mr. Napuli? WITNESS:

q So, after the first examination, you did not find any drugs inside the suitcase, Mr. Witness? WITNESS: a Actually, in the course of the examination, we did not find the hashish but we already suspected that it was being put at the sidings so we decided to rex-ray it. PROS. VELASCO:

a There was an unusual incident which (sic) we were able to apprehend William Robert Burton carrying in his luggage suspected hashish, sir. xxx xxx x x xq How was he apprehended? Will you relay (sic) it to the Court, Mr. Witness? a He was apprehended after his luggage had passed through the x-ray and it was found out that there was something red or an unidentified object inside his luggage, so we conducted immediately a thorough examination of his bag and we found out that certain hashish. xxx xxx xxx

During the re-x-ray, what did you find out, Mr. Witness?

a After the re-x-ray of that bag was conducted, we decided (sic) Mr. Burton to slash the sidings of his bag, sir. COURT: q a q a q What did you find out during the re-x-ray examination? We found out that there was something inside the sidings of the bag, sir. What was that something appearing in the x-ray? It was red. It appeared in the x-ray a block type, sir. What portion of the luggage?

PROS. VELASCO: q You said that the luggage of Mr. Burton passed through the x-ray machine. What happened next, Mr. Witness? WITNESS: a So, since we already suspected that there was something suspected hashish, we requested Mr. Burton to have his luggage opened. xxx xxx xxx

a It was in the sidings which contained that red and block type appearance in the x-ray. It was in the sidings of the bag concealed at the sidings of the bag. q When it was re-x-ray, where were the contents of the bag which you examined upon opening it? a The contents of the bag were placed on the inspection lane, his dresses, and his personal belongings, during the examination of the bag. PROS. VELASCO:

PROS. VELASCO: q a So, what did you do next? Then we approached Mr. Burton and requested him to open his luggage. xxx xxx

xxx

q After the bag has been passed again in the x-ray machine, what did you do, Mr. Witness? WITNESS:

PROS. VELASCO:

a Again, it was passed through the x-ray, we decided to request Mr. Burton to have his luggage slashed in order to open, sir. xxx xxx xxx

a With the used (sic) of a cutter or bladed weapon, and in the presence of Mr. Burton, Mr. Napuli slashed one of the sidings, sir. xxx q xxx xxx

PROS. VELASCO: q What happened next, Mr. Witness?

What happened next after this area has been opened?

a So when we slashed the sidings of the bag, it yielded hashish, 12 blocks and one (1) bar. xxx q a xxx xxx

a After one of the sidings has (sic) been slashed by Mr. Napuli in our presence, I found out that a hard portion thicker than ordinary sidings of the suitcase being examined. It is wrapped with masking tapes, sir. q What happened next after that?

Can you describe these twelve (12) blocks that you have seen? It is black in color... xxx xxx

a After I discovered the masking tapes wrapped on the sidings, I made another slashed (sic) in the sidings of the hard object found on the sidings of the suitcase. In which it yielded brown substance wrapped with masking tapes. xxx xxx xxx

xxx

q xxx These twelve (12) blocks, what was the relation ot (sic) these twelve (12) blocks to the hashish or drugs you are mentioning? WITNESS: a That is the hashish, your Honor.

STATE PROSECUTOR: Will you please describe to the best of your knowledge what was the substance found inside it? a When that substance or object conceiled (sic) in between the hard plastic of the suitcase was retrieved by Mr. Napuli, we cut the portion of the said object and we found brown substance. And thorough (sic) physical examination, we suspected that it is hashish, sir. STATE PROSECUTOR: Will you please describe this brown substance? a q a q a It is dark brown in color, sir. The appearance? It is form (sic) in blocks of various sizes. sir. What are the shapes of the blocks? The first one is rectangular in form, sir.

COURT: q How about this bar? What is the relation of this bar to the drugs or hashish you are mentioning? WITNESS: a It is the hashish, your Honor.

Witness Zuo corroborated Napulis testimony, saying that:[17] STATE PROSECUTOR: q So Mr. witness (sic) what happened next after Mr. Burton complied that his bags be opened? a After complying to have his luggages (sic) re-examined, said luggages (sic) were brought to the customs examination table and have it re-examined by Mr. Napuli, sir. xxx q xxx xxx

COURT: How many blocks were they (sic)? a Ten (10) blocks of various sizes, two (2) blocks also and one (1) small bar, Your Honor. STATE PROSECUTOR: Mr. witness (sic) in what specific part of this travelling bag have you found? a It is on the bottom of the hand travelling bag, sir. Will you please show to us? This portion, sir.

So what happened next, Mr. witness(sic)?

a After these two luggages (sic) were brought to the said examination table, Mr. Burton was again requested to have his luggages (sic) opened by him, in (sic) which he complied and that is the time Mr. Napuli started the thorough examination of the emptied luggages, (sic) sir. xxx xxx xxx

q q What happened next Mr. witness (sic) after the bags were subjected to the thorough examination by Mr. Napuli? a When the suitcase are (sic) being examined by Mr. Napuli, I notice (sic) that the sidings and the bottom of the said suitcase is (sic) thicker than the ordinary suitcase being subjected for examination, sir. a

(witness pointing to two (2) pieces of plastic with wood which is placed at the bottom of the bag. It is detachable with a piece of black plastic material in between the two (2) pieces of plastic in effect serves as a false bottom of the bag marked as Exhibit H). q I have noticed Mr. witness (sic) that the false bottom is exposed, was this the condition also of this bag when it was inspected at the time of the arrest of Mr. Burton?

q So when you noticed that one of the sidings is (sic) thicker, what happened next Mr. witness?

No, sir, it was neatly revetted (sic) or there were revets (sic). xxx xxx

xxx

SEC. 21. Attempt and Conspiracy.--The same penalty prescribed by this Act for the commission of the offense shall be imposed in case of any attempt or conspiracy to commit the same in the following cases: xxx xxx xxx

q Can you please explain to the Honorable Court how you came upon this present state Mr. witness(sic)? a The bladed weapon was also used by Mr. Napuli, and when I found the (sic) difficulty in opening the revetted (sic) portion, I used a screw driver, sir. He also testified on how he found blocks of the same substance inside appellants shoes. He said:[18] STATE PROSECUTOR: What happened next after the investigation of Mr. Burton? a While thereat, I observed Mr. Burton to be uneasy on his shoes, so my suspicion arose (sic) that he is conceiling (sic) may be (sic) a deadly weapon or some more illegal items. So I requested him to untie his white Reebok shoes, which (sic) he complied. While he was untying his shoes, I took shme (sic) pictures, sir. xxx xxx xxx

(b) Sale, administration, delivery, distribution and transportation of dangerous drugs; xxx xxx x x x

The foregoing testimony amply demonstrates that appellant committed an act punishable by said law. We agree with the following discussion of the trial court on the crime committed by appellant: x x x To transport means to transfer or convey from one person or place to another. (Websters Third New International Dictionary). The accused came from a hotel in Paraaque, Metro Manila, where he stayed before he checked in at the NAIA and was bound for Sydney, Australia. It is therefore apparent that he wanted to bring the prohibited drug from Paraaque to Sydney. However, because he was not able to pursue his trip, he should be considered only to have attempted to transport the prohibited drug to Sydney. Under Section 21 of The Dangerous Drugs Act of 1972, the same penalty prescribed by the said Act for the commission of the offense of transporting dangerous drugs shall be imposed in case of any attempt to commit the same crime.

q So what happened next after Mr. Burton untie (sic) his shoes, Mr. witness(sic)? a When he untied his shoes, I requested custom (sic) police Elpidio Manuel to examine the said shoes, and inside the shoes we found out (sic) four (4) blocks of various sizes, sir. q a Four blocks of various sizes of what, Mr. witness(sic)? Suspected hashish, sir. xxx xxx xxx

q Can you please describe briefly to the Court the appearance of these blocks of various sizes of hashish? a Well, .. I mean the form follows the forms of the inner portion of the sole of the shoes, but it was not cut into two, and we found four (4) blocks in the shoes he is wearing, sir.

The act of accused Burton in attempting to transport the hashish in question clearly constitutes a violation of Section 4, in relation to Section 21, of Republic Act No. 6425, since it does not appear that the accused had any legal authority to transfer or convey the said prohibited drug from the Philippines to Australia. Upholding the Assessment of Witness by the Trial Court Appellant questions the trial courts conferment of faith and credence on the testimony of prosecution witness Zuo despite some apparent inconsistencies. It is a well-entrenched rule in law that the assessment of a witness credibility by the trial court is accorded great respect because said court is in the best position to observe and evaluate the witness demeanor and deportment at the time he gave his testimony.[19] The questions of whether appellant did utter the word patay in disappointment over the discovery of his misdeed and whether Zuo took pictures of appellant while the latter was removing or putting on his rubber shoes are of little significance. The trial court did take the utterance allegedly heard by Zuo as proof of appellants knowledge of the hashish in his luggage and shoes, but the ineludible fact remains that appellant was caught with twelve blocks and seven bars of hashish in his possession. This remains unrebutted as proof of appellants guilt. The trial court properly admitted in evidence Exhibits P-S despite the absence of Zuos markings because these blocks of hashish bore Customs Examiner Elizabeth Ayonons markings instead. Zuo witnessed Ayonon place her markings on said exhibits.[20] Existence of Animus Possidendi Unrebutted In criminal cases involving prohibited drugs, appellant argues that there can be no conviction unless the prosecution shows that the accused knowingly possessed the prohibited articles in his person, or more legally put, that animus possidendi is shown to be present together with his possession or control of such article.[21]

xxx

xxx

xxx

COURT: So it was sandwich (sic) between the upper sole or the cover and the sole proper? a Yes, Your Honor. xxx xxx

xxx

STATE PROSECUTOR: Then after you have discovered something were (sic) hidden inside the shoes of Mr. Burton what happened next, Mr. witness(sic)? a And since he was denying knowledge on the suspected hashish that were earlier discovered from his luggages(sic), when I asked him what he can say about the four (4) blocks that were recovered in his shoes, and he said I have nothing to say. Sec. 21 of the same act provides:

Under the Rules of Evidence (Sec. 3[j], Rule 131, Rules of Court), things which a person possesses, or exercises acts of ownership over, are owned by him. Such disputable presumption is based upon the principle that direct proof of facts of this nature is rarely available, except in cases of confession. In several cases, the Court has held that possession of a considerable quantity of marijuana cannot indicate anything except the intention of the accused to sell, distribute and deliver said prohibited drug.[22]

Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. Its existence may and usually must be inferred from the attendant events in each particular case.[23] In prosecutions involving prohibited drugs, the state has a right to specify what proofs shall constitute prima facie evidence of guilt, and thereafter to place upon the accused the burden of showing that his act or acts are innocent and are not committed with any criminal intent or intention.[24] The existence of animus possidendi is only prima facie. Thus, it is subject to contrary proof and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in question, and did not intend to do so.[25] The constitutional presumption of innocence will not apply as long as there is some rational connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be (a) purely arbitrary mandate.[26]

In People vs. Alfonso, the Court disregarded a similar excuse, saying that if it were true that the accused was not really the owner and that he simply accepted the errand from one who was not even a friend, the explanation, standing by itself, is too trite and hackneyed to be accepted at its face value, since it is obviously contrary to human experience.[28] In any event, the particular circumstances surrounding the sale should have raised alarm in appellants mind about the dubious nature of the transaction. The absence of any suspicious reaction on appellants part is not consist ent with human nature. And if he did not mind carrying these bags for someone he hardly knew and whom he conveniently alleges to be also going to Australia, it is strange that he did not point him to the airport authorities so he could have been apprehended. The Court also notes that Parry was never presented as a witness. Hence, his very existence, not just his alleged participation in appellants story, remains doubtful.

All told, the possession of the prohibited drugs by appellant with prima facie evidence of his knowledge thereof is sufficient to sustain a conviction in the absence of a satisfactory explanation.[29] The Proper Penalty The trial court imposed the penalty of life imprisonment plus a fine of twenty thousand pesos as the crime was committed on December 26, 1992 or about a year before Republic Act No. 7659,[30] imposing the penalty of reclusin perpetua to death, came into effect on December 31, 1993. Retroactive application of said law would not be advantageous to appellant in view of the increased range of penalty and conjunctive fine prescribed, where the quantity of prohibited drugs is 750 grams or more. A more succint explanation in People vs. Ballagan states:[31] First, the wealth of jurisprudence in cases wherein life imprisonment is imposed is to the effect that said penalty, unlike reclusin perpetua, does not carry accessory penalties. In the event that Republic Act No. 7659 is applied retrospectively to appellant, he has to suffer not only reclusin perpetua but also the accessory penalties. Second, the fine imposed upon appellant is the minimum imposable of twenty thousand pesos (P20,000.00), whereas if he were penalized under the new law, he would have to bear the minimum fine of P500,000.00. Thus, retrospective application of Republic Act No. 7659, the heinous crimes law, in cases wherein the penalty of life imprisonment has been imposed by the trial court, would prove more burdensome upon the appellant and would contradict the basic principle that all penal laws shall be interpreted in favor of the accused. In line with current jurisdiction, we affirm the trial courts imposition of the penalty of life imprisonment and a fine of twenty thousand pesos (P20,000.00) upon appellant.[32] WHEREFORE, the appeal is hereby DENIED. The appealed decision is AFFIRMED. G.R. No. 74259 February 14, 1991 GENEROSO P. vs. PEOPLE OF THE PHILIPPINES, respondent. CORPUZ, petitioner,

The burden of evidence is thus shifted to the possessor to explain absence of animus possidendi. A mere uncorroborated claim of the accused that he did not know that he had a prohibited drug in his possession is insufficient. Any evasion, false statement, or attempt at concealment on his part, in explaining how the drug came into his possession, may be considered in determining his guilt.[27] Under the facts obtaining in this case, the 5.6 kilos of hashish cleverly and painstakingly concealed inside appellants luggage and rubber shoes can be said to be in the possession and control of appellant with his knowledge. Not only were the blocks and bars of the prohibited drug of a considerable amount, but they were placed inside three different objects in order to escape detection by the authorities. The Court also finds incredible appellants allegation that he had no idea that the luggage and rubber shoes he purchased from a certain John Parry contained prohibited drugs. Even the alleged transaction between them is dubious. Appellant claims that he had paid Parry P10,000.00 for the two pieces of luggage, clothes, camera, tape recorder, and Reebok rubber shoes which Parry would redeem from appellant in Australia. Appellant explains that this transaction, which brought no benefit or advantage to him, was more of a loan, an act of charity, to Parry who was raising money for his plane fare. However, appellant also admits that Parry was only a casual acquaintance whom he had met for about five to six times only. Thus, it is unbelievable for anyone, much less appellant who was unemployed and was relying only on the P6,000.00-per-month trust fund proceeds, to be so generous as to shell out such an amount to a mere acquaintance. Furthermore, this purchase was suspiciously made only hours prior to appellants apprehension at the airport. Appellants explanation, as a whole, is undeserving of credence as it is contrary to common experience. It leaves us with no other conclusion than that the animus possidendi did in fact exist at the time of the arrest.

The petitioner seeks reversal of the decision of the respondent court dated February 27,1986, the dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Generoso Corpuz y Padre, guilty beyond reasonable doubt as principal of the crime of Malversation of Public Funds, and there being no modifying circumstances in

attendance, and applying the Indeterminate Sentence Law, hereby sentences him to suffer imprisonment ranging from Twelve (12) Years and One (1) Day of reclusion temporal, as minimum, to Twenty (20) Years of reclusion temporal, as maximum; to restitute to the provincial government of Nueva Vizcaya the sum of P50,596.07 which is the amount misappropriated, and to pay the costs of this suit. Further, the accused is ordered to suffer the penalty of perpetual special disqualification, and to pay a fine equal to the amount embezzled. SO ORDERED. As Supervising Accounting Clerk in the Office of the Provincial Treasurer of Nueva Vizcaya, the petitioner was designated Acting Supervising Cashier in the said Office. In this capacity, he received collections, disbursed funds and made bank deposits and withdrawals pertaining to government accounts. On April 13, 1981, his designation as Acting Supervising Cashier was terminated, and on April 22, 1981, a Transfer of Accountabilities was effected between the petitioner and his successor. The Certificate of Turnover revealed a shortage in the amount of P72,823.08. 1 A letter of demand dated April 22, 1981, required the petitioner to produce the missing amount but he was able to pay only P10,159,50. The balance was demanded in another letter dated October 12, 1981. This was subsequently reduced by P12,067.51 through the payment to the petitioner of temporarily disallowed cash items and deductions from his salary before his dismissal from the service. 2 On September 27, 1982, a final letter of demand for the total deficiency of P50,596.07 was sent to the petitioner. The demand not having been met, an information for malversation of the said amount was filed against him with the respondent court on October 11, 1983. The above facts are not denied by the petitioner. 3 He insists, however, that he is not guilty of the charge because the shortage imputed to him was malversed by other persons. His claim is that the P50,000.00 constituting the bulk of the shortage represented the unliquidated withdrawal made by Paymaster Diosdado Pineda through one of four separate checks issued and encashed while the petitioner was on official leave of absence. He avers he was later made to post the amount in his cash book by Acting Deputy Provincial Treasurer Bernardo C. Aluning and he had no choice but to comply although he had not actually received the said amount. The four checks drawn from the Philippine National Bank and the corresponding vouchers dated are described as follows: 1. Provincial Voucher dated December 22, 1980 from the General Fund in the amount of P50,000.00 and paid by PNB Check No. 956637 dated December 22,1980. 2. Provincial Voucher dated December 23, 1980 from the Infrastructure Fund in the amount of P50,000.00 and paid by PNB Check No. NS958525 dated December 23,1980. 3. Provincial Voucher dated December 23, 1980 from the General Fund in the amount of P50,000.00 and paid by PNB Cheek No. 956639J dated December 22,1980. 4. Provincial Voucher dated December 29, 1980 from the Infrastructure Fund in the amount of P50,000.00 and paid by PNB Check No. 958226 dated December 29,1980. Testifying for the prosecution, Pineda insisted he had liquidated all four checks after the amounts thereof were disbursed, turning over to the petitioner

the corresponding withdrawal vouchers, paid vouchers, and payrolls, (which were all submitted as exhibits ). 4 He added that the petitioner was not really absent on the dates in question as alleged but was in fact the one who prepared the said checks in the morning before attending to the sick wife in the hospital, returning to the office in the afternoon. He said that the payroll payments made on December 22, 23 and 29, 1980, were liquidated on December 29, 1980, after the petitioner came back from the hospital. 5 Acting Provincial Treasurer Perfecto Martinez corroborated Pineda's testimony that the petitioner was not on official leave on the dates in question. He said that although Check No. 958525 had already been encashed on December 23 1980, the encashment was not immediately recorded in the petitioner's cashbook, "which (was) one way of temporarily hiding the early detection of a shortage." It was only in March 1981 that the shortage was discovered and, when confronted with it, the petitioner had no explanation to offer. 6 Aluning denied he had exerted pressure on the petitioner to post the shortage in the petitioner's cash book. He explained that after receiving the bank statement from the PNB for December 1980, he discovered that although the amount of P50,000.00 appeared to have been already encashed, the encashment was not reflected in the petitioner's cash book. As his superior, he required the petitioner to make the proper entry in the cash book because the amount withdrawn was already part of the latter's accountability. 7 After considering the evidence of the parties, the Sandiganbayan, through Justice Amante Q. Alconcel, made the following findings: The evidence on record is devoid of any explanation from the defense as to the amount of P595.87. Hence, the accused must be held answerable for the misappropriation of the said amount. As to the amount of P50,000.00, We are not disposed to give credence to his claim that same has not been liquidated by the paymaster, for the following reasons: First, Check No. 958525 is only one of four (4) checks issued and encashed for the same purpose, and that is, to pay salary differentials as well as salaries and wages of provincial officials and employees of the province of Nueva Vizcaya covering the period, January to December, 1980. Issuance and encashment occurred on December 23, 1980, and in fact, another check (No. 956639) was also issued and encashed on the same day. The two (2) other checks (Nos. 956637 and 958526) were issued and encashed on December 22 and 29, 1980, respectively. Except for Check No. 958525, which was only entered in accused's Cash Book on March 31, 1981, or three (3) months after its issuance and encashment, all the other three (3) were duly entered. Then Check No. 956639 which, as pointed out above, was issued and encashed on the same day as Check No. 958525, was duly entered in his Cash Book. Non-entry of the latter check on time was a subtle way of camouflaging the embezzlement of its money equivalent. Secondly, there seems to be no logical reason why Checks Nos. 956639 and 958525, could not have been liquidated together by Diosdado Pineda who used the proceeds to pay salary differentials of government officials and employees of the province of Nueva Vizcaya, since these have been issued and encashed on the same day. Thirdly, Diosdado Pineda, who was presented as a prosecution witness, swore that he duly liquidated the proceeds of the four (4) checks as follows: ATTY. DEL ROSARIO ON DIRECT EXAMINATION:

Q If the payroll is already accomplished, where do you give the payroll?A I give it back to the cashier with the corresponding voucher to support the vouchers paid by me or disbursed by me. ATTY. ESCAREAL:Q So that your cash advances will be liquidated?A Yes, Your honor. xxx xxx xxx Q In the absence of the cashier to whom do you give these documents?A give them to the cashier only, no other person. ATTY. DEL ROSARIOQ In his absence, do you keep these documents?A Yes, Your Honor. Q For payrolls that you paid for December 22, 23 and 29, when did you give these payrolls to the cashier?A On December 29, sir. ATTY. ESCAREAL:Q Duly accomplished?A Duly accomplished, Your Honor. xxx xxx xxx ATTY. ALCONCEL: Q Where did you see your cashier on the 29th?A At the office, Your Honor. ATTY. DEL ROSARIO:Q At what time?A In the afternoon, sir. ATTY. ALCONCEL:Q Are you not aware that your cashier was absent on that date? A :He was present on that day, sir. He would go out because the wife was supposedly having a check-up but in the afternoon, he would return. (t.s.n., March 29, 1985, pp. 1618) The cashier referred to by the witness is the accused, Generoso P. Corpuz. And fourthly, We are not impressed by accused's claim that he was absent on December 22, 23 and 29, 1980. His witness, Diosdado Pineda, declared otherwise. His Employee's Leave Card (Exhibit J), wherein his earned leaves are indicated, shows that during the month of December, 1980, he earned 1.25 days vacation leave and 1.25 days sick leave, which is the same number of days vacation and sick leaves that he earned monthly from July 7, 1976 to October 1981. Moreover, even if it were true that he was absent on December 23, 1980, the day when Check No. 958525 was issued and encashed, yet, the other check which was issued and encashed on the same day was duly liquidated. The above findings are mainly factual and are based on substantial evidence. There is no reason to disturb them, absent any of the exceptional circumstances that will justify their review and reversal. On the contrary, the Court is convinced that the facts as established point unmistakably to the petitioner's guilt of the offense charged. This conclusion is bolstered by the Solicitor General's observation that: Moreover, petitioner's denial of responsibility for the missing P50,000.00 is negated by the following factors: First. When he entered the said amount in his cash book in March, 1981, he did not make any notation that said amount, though entered, was not actually received. Second. At the time he signed the certificate of turnover (Exhibit C), he did not make any certification that

the amount of P50,000.00 should not be charged against him. Third. Despite his insistence that Pineda and Martinez misappropriated the money, he did not file any case, whether civil, criminal or otherwise, against either or both. The absence of a post-audit is not, as the petitioner contends, a fatal omission. That is not a preliminary requirement to the filing of an information for malversation as long as the prima facie guilt of the suspect has already been established. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. 8 And what determines whether the crime of malversation has been committed is the presence of the following requirements under Article 217 of the Revised Penal Code: (a) That the offender be a public officer. (b) That he had the custody or control of funds or property by reason of the duties of his office. (c) That those funds or property were public funds or property for which he was accountable. (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. The petitioner's claim that he is the victim of a "sinister design" to hold him responsible for a crime he has not committed is less than convincing. His attempt to throw the blame on others for his failure to account for the missing money only shows it is he who is looking for a scapegoat. The plaintive protest that he is "a small fry" victimized by the "untouchables" during the Marcos regime is a mere emotional appeal that does not impress at all. The suggestion that the supposed injustice on the petitioner would be abetted by this Court unless his conviction is reversed must be rejected as an warrant presumptuousness. The equipoise rule invoked by the petitioner is applicable only where the evidence of the parties is evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused. There is no such equipoise here. The evidence of the prosecution is overwhelming and has not been overcome by the petitioner with his nebulous claims of persecution and conspiracy. The presumed innocence of the accused must yield to the positive finding that he malversed the sum of P50,310.87 to the prejudice of the public whose confidence he has breached. His conviction must be affirmed. WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered. RIGHT TO BE HEARD AND TO COUNSEL [G.R. No. 120420. April 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, MIRANDILLA BERMAS, accused-appellant. DECISION VITUG, J.:

vs.

RUFINO

In convicting an accused, it is not enough that proof beyond reasonable doubt has been adduced; it is also essential that the accused has been duly afforded his fundamental rights.

The death penalty having been imposed, the case has reached this Court by way of automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659 (otherwise known as An Act To Impose Death Penalty on Certain Heinous Crimes, Amending For That Purpose The Revised Penal Code, as amended, Other Special Penal Laws, and For Other Purposes, which took effect on 31 December 1993).

Rufino Mirandilla Bermas pleaded not guilty before the Regional Trial Court of Paraaque, Branch 274, Metro Manila, to the crime of rape under a criminal complaint, which read: The prosecution, through the Office of the Solicitor General, gave an account, rather briefly, of the evidence submitted by the prosecution. C O M P L A I N T "On August 3, 1994, complainant Manuela Bermas, 15 years old, was raped by her own father, appellant Rufino Bermas, while she was lying down on a wooden bed inside their house at Creek Drive II, San Antonio Valley 8, Paraaque, Metro Manila (pp. 6-7, TSN, Oct. 19, 1994). Armed with a knife, appellant removed the victim's shorts and panty, placed himself above her, inserted his penis in her vagina and conducted coital movements (pp. 7-8, ibid.). After the appellant satisfied his lustful desire, he threatened the victim with death if she reports the incident to anyone. (p. 9, ibid.)

The undersigned complainant as assisted by her mother accuses Rufino Mirandilla Bermas, of the crime of Rape, committed as follows:

"That on or about the 3rd day of August 1994, in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, while armed with a knife and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant against her will.

"On August 9, 1994, complainant was medically examined at the NBI, which yielded the following findings:

CONTRARY TO LAW

Paraaque, Metro Manila

"The findings concluded: 1. No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination; 2. Hymen, intact but distensible and its orifice wide (2.7 cm. In diameter) as to allow complete penetration by an average sized, adult, Filipino male organ in full erection without producing any hymenal laceration."[2]

August 8, 1994

(SGD) MANUEL P. BERMAS

The defense proffered the testimony of the accused, who denied the charge, and that of his married daughter, Luzviminda Mendez, who attributed the accusation made by her younger sister to a mere resentment by the latter. The trial court gave a summary of the testimony given by the accused and his daughter Luzviminda; viz:

Complainant

Assisted by:

(SGD) ROSITA BERMAS

Mother[1]

The accused vehemently denied that he has ever committed the crime of rape on her daughter, the complainant. He told the Court that he could not do such a thing because he loves so much his daughter and his other children. In fact, he said that he even performed the dual role of a father and a mother to his children since the time of his separation from his wife. The accused further told the Court that in charging him of the crime of rape, the complainant might have been motivated by ill-will or revenge in view of the numerous scoldings that she has received from him on account of her frequent coming home late at night. The accused stressed that he knew of no other reason as to why his daughter, the complainant, would ever charge him of the crime of rape except probably in retaliation for being admonished by him whenever she comes home late in the night.

Evidence was adduced during trial by the parties at the conclusion of which the lower court, presided over by Hon. Amelita G. Tolentino, rendered its decision, dated 02 May 1995, finding the accused guilty of the offense charged and sentencing him to suffer the extreme penalty of death.

The married daughter of the accused, who testified in his behalf, denied that the complainant was raped by the accused. She said that the complainant did not come home in the night of August 3, 1994, and that, she is a liar. She told the Court that the concoction by the complainant of the rape story is probably due to the resentment by the latter of the frequent scoldings that she has been receiving from the accused. She further added that she was told by the previous household employer of the complainant that the latter is a liar. She

went on to testify further that she does not believe that the accused, who is her father, raped the complainant, who is her younger sister.[3]

f. Negligent in her conduct at the initial trial.

3. The Vanishing Second Counsel de Officio The trial court, in its decision of 02 May 1995, found the case of the prosecution against the accused as having been duly established and so ruled out the defense theory of denial and supposed ill-will on the part of private complainant that allegedly had motivated the filing of the complaint against her father. The court adjudged:

a. He was not dedicated nor devoted to the accused;

b. His work was shoddy; "WHEREFORE, this Court finds the accused guilty beyond reasonable doubt of the crime of rape and hereby sentences him to suffer the DEATH PENALTY, to indemnify the complainant in the amount of P75,000.00, Philippine Currency, and to pay the costs.

4. The Reluctant Third Counsel de Officio

"SO ORDERED."[4]

5. The performance of all three counsels de officio was ineffective and prejudicial to the accused.

In their 61-page brief, defense counsel Fernandez & Kasilag-Villanueva (in collaboration with the Anti-Death Penalty Task Force), detailed several errors allegedly committed by the court a quo; thus:

B. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE TRIED BY AN IMPARTIAL JUDGE AND TO BE PRESUMED INNOCENT.

I. THE ACCUSED WAS DEPRIVED OF DUE PROCESS.

C. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE HEARD AND FOR WITNESSES TO TESTIFY IN HIS BEHALF.

A. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE AND VIGILANT COUNSEL

D. THE ARRAIGNMENT OF THE ACCUSED WAS INVALID.

1. The trial court did not observe the correct selection process in appointing the accused's counsel de officio;

E. THE ACCUSED WAS DENIED THE EQUAL PROTECTION OF THE LAW.

2. The Public Attorney could not give justice to the accused;

a. Negligent in not moving to quash the information on the ground of illegal arrest;

II. THE TRIAL COURT DID NOT `SCRUTINIZE WITH EXTREME CAUTION THE PROSECUTION'S EVIDENCE, MISAPPRECIATED THE FACTS AND THEREFORE ERRED IN FINDING THE ACCUSED GUILTY OF RAPE BEYOND REASONABLE DOUBT."[5]

b. Negligent in not moving to quash the information on the ground of invalid filing of the information;

The Court, after a painstaking review of the records, finds merit in the appeal enough to warrant a remand of the case for new trial.

c. Negligent in not moving for a preliminary investigation;

d. Negligent in not pointing out the unexplained change in the case number;

It would appear that on 08 August 1994 Manuela P. Bermas, then 15 years of age, assisted by her mother Rosita Bermas, executed a sworn statement before SPO1 Dominador Nipas, Jr., of the Paraaque Police Station, stating, in sum, that she had been raped by accused Rufino Mirandilla Bermas, her own father, in 1991 and 1993, as well as on 03 August 1994, particularly the subject matter of the complaint, hereinbefore quoted, duly signed and filed conformably with Section 7, Rule 112, of the Rules of Court. The Second Assistant Prosecutor, issued a certification to the effect that the accused had waived his right to a preliminary investigation.

e. Negligent in not moving to inhibit the judge;

On the day scheduled for his arraignment on 03 October 1994, the accused was brought before the trial court without counsel. The court thereupon assigned Atty. Rosa Elmira C. Villamin of the Public Attorney's Office to be the counsel de officio. Accused forthwith pleaded not guilty. The pre-trial was waived.

The prosecution abruptly rested its case after the medico-legal officer had testified.

The initial reception of evidence was held on 19 October 1994. The prosecution placed complainant Manuela Bermas at the witness stand. She testified on direct examination with hardly any participation by defense counsel who, inexplicably, later waived the cross-examination and then asked the court to be relieved of her duty as counsel de officio.

The reception of the defense evidence was scheduled for 12 December 1994; it was later reset to 09 January 1995. When the case was called on 09 January 1995, the following transpired:

COURT:

"ATTY. VILLARIN: Where is the counsel for the accused?

And I am requesting if this Honorable Court would allow me and my paero besides me, would accede to my request that I be relieved as counsel de officio because I could not also give justice to the accused because as a lady lawyer . . . if my paero here and if this Honorable Court will accede to my request.

COURT:

Did he file his withdrawal in this case? It is supposed to be the turn of the defense to present its evidence. "COURT: PROSECUTOR GARCIA: It is your sworn duty to defend the helpless and the defenseless. That is your sworn duty, Mrs. Counsel de Officio. Are you retracting? Yes, Your Honor. The prosecution had already rested its case.

"ATTY. VILLARIN:

COURT:

That is why I am asking this Honorable Court."[6] Last time he asked for the continuance of this case and considering that the accused is under detention ... it seems he cannot comply with his obligation. Counsel's request was granted, and Atty. Roberto Gomez was appointed the new counsel de officio. While Atty. Gomez was ultimately allowed to crossexamine the complainant, it should be quite evident, however, that he barely had time, to prepare therefor. On this score, defense counsel Fernandez & Kasilag-Villanueva in the instant appeal would later point out:

COURT:

(To the accused) Nasaan ang abogado mo? To substitute for her, the Public Attorney recommended Atty. Roberto Gomez to be appointed as defense counsel de oficio. And so the trial court appointed him.

ACCUSED R. BERMAS:

Atty. Gomez asked for a ten minute recess before he began his cross examination, presumably to prepare. But a ten minute preparation to cross examine the complainant upon whose testimony largely rests the verdict on the accused who stands to be meted the death penalty if found guilty, is far too inadequate. He could not possibly have familiarized himself with the records and surrounding circumstances of the case, read the complaint, the statement of the complainant, the medico-legal report, memos of the police, transcripts and other relevant documents and confer with the accused and his witnesses, all in ten minutes.[7]

Wala po.

COURT:

It is already the turn of the defense to present its evidence in this case. In view of the fact that the defense counsel is not interested anymore in defending the accused because last time he moved for the continuance of the hearing of this case and since this time he did not appear, he is unduly delaying the proceedings of this case and considering the accused here is under detention, I think it would be better if the Court appoints another lawyer. He should file his withdrawal if he is not interested anymore.

ATTY. LONZAME:

I will be withdrawing my previous manifestation that I be relieved of my responsibility as counsel de officio.

COURT: In view of the fact that the counsel de officio has repeatedly failed to appear in this Court to defend his client-accused, the Court is hereby constrained to appoint another counsel de officio to handle the defense of the accused. For this purpose, Atty. Nicanor Lonzame is hereby appointed as the counsel de officio for accused Rufino Mirandilla Bermas.[8]

So, therefore, counsel, are you now ready?

ATTY. LONZAME: The hearing scheduled for that day was reset to 16 January 1995 upon the request of Atty. Lonzame. On even date, Atty. Lonzame himself asked to be relieved as counsel de officio but later, albeit reluctantly, retracted; thus:

Yes, Your Honor.[9]

COURT:

Trial proceeded with the accused being the first to be put at the witness stand. He denied the accusation against him. The next witness to be presented was his married daughter who corroborated her fathers claim of innocence.

Where is the accused? Where is the counsel de officio?

ATTY. NICANOR LONZAME:

The defense counsel in the instant appeal took over from Atty. Lonzame who himself, for one reason or another, had ceased to appear for and in behalf of accused-appellant.

As counsel de officio, Your Honor. The lawyer from the PAO is here, may I be allowed to give her my responsibility as counsel de officio considering that the lawyer from the PAO ...

COURT:

What about?

This Court finds and must hold, most regrettably, that accused-appellant has not properly and effectively been accorded the right to counsel. So important is the right to counsel that it has been enshrined in our fundamental law and its precursor laws. Indeed, even prior to the advent of the 1935 Constitution, the right to counsel of an accused has already been recognized under General Order No. 58, dated 23 April 1900, stating that a defendant in all criminal prosecutions is entitled to counsel at every stage of the proceedings,[10] and that if he is unable to employ counsel, the court must assign one to defend him.[11] The 1935 Constitution has no less been expressive in declaring, in Article III, Section 17, thereof, that -

ATTY. LONZAME:

I was appointed because the PAO lawyer was not around. If the Court will allow us to be relieved from our responsibility as appointed counsel de officio of the accused ...

(17) In all criminal prosecutions, the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf.

COURT:

You want to be relieved of your responsibility as appointed counsel de officio? As an officer of the Court you don't want to handle the defense of the accused in this case?

Except for a proviso allowing trial in absentia, the right to counsel under the 1973 Constitution, essentially, has remained unchanged. Under the 1987 Constitution, a worthwhile innovation that has been introduced is the provision from which prevailing jurisprudence on the availability of the right to counsel as early as the stage of custodial interrogation can be deemed to be predicated. The rule, found in Sections 12 and 14, Article III, of the 1987 Constitution, states -

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

extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation.[17]

x x x

xxx

xxx

Sec. 14. x x x x x x x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. The constitutional mandate is reflected in the 1985 Rules of Criminal Procedures which declares in Section 1, Rule 115, thereof, that it is a right of the accused at the trial to be present in person and by counsel at every stage of the proceedings from the arraignment to the promulgation of the judgment. The presence and participation of counsel in the defense of an accused in criminal proceedings should never be taken lightly.[12] Chief Justice Moran in People vs. Holgado,[13] explained: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own."[14] In William vs. Kaiser,[15] the United States Supreme Court, through the late Justice Douglas, has rightly observed that the accused needs the aid of counsel lest he be the victim of overzealous prosecutors, of the laws complexity or of his own ignorance or bewilderment. An accused must be given the right to be represented by counsel for, unless so represented, there is great danger that any defense presented in his behalf will be as inadequate considering the legal perquisites and skills needed in the court proceedings.[16] The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a persons basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.

It is never enough that accused be simply informed of his right to counsel; he should also be asked whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice if he so desires or that one can be provided to him at his request.[18] Section 7, Rule 116, of the Rules of Criminal Procedure provides: Sec. 7. Appointment of counsel de oficio. - The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar in good standing who, by reason of their experience and ability may adequately defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused. A counsel de oficio is expected to do his utmost.[19] A mere pro-forma appointment of de oficio counsel who fails to genuinely protect the interests of the accused merits disapprobation.[20] The exacting demands expected of a lawyer should be no less than stringent when one is a counsel de officio. He must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to be excused from this responsibility except only for the most compelling and cogent reasons.[21] Just weeks ago, in People vs. Sevilleno, G.R. No. 129058, promulgated on 29 March 1999, this Court has said: We cannot right finis to this discussion without making known our displeasure over the manner by which the PAO lawyers dispensed with their duties. All three (3) of them displayed manifest disinterest on the plight of their client.

x x x

xxx

xxx

Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously, in the instant case, the aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial. Inevitably, this Court must advise Attys. Agravante, Pabalinas and Saldavia to adhere closely and faithfully to the tenets espoused in the Code of Professional Responsibility; otherwise, commission of any similar act in the future will be severely sanctioned. The Court sees no other choice than to direct the remand of the case to the court a quo for new trial. WHEREFORE, let this case be REMANDED to the court a quo for trial on the basis of the complaint, aforequoted, under which he was arraigned. Atty. Ricardo A. Fernandez, Jr. of the Anti-Death Penalty Task Force is hereby appointed counsel de officio for the appellant.

The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance

Attys. Rosa Elmina Villamin of the Public Attorney's Office, Paraaque, Roberto Gomez and Nicanor Lonzame are hereby ADMONISHED for having fallen much too short of their responsibility as officers of the court and as members of the Bar and are warned that any similar infraction shall be dealt with most severely. G.R. No. 94262 May 31, 1991 FEEDER INTERNATIONAL LINE, PTE., LTD., by its agent, FEEDER INTERNATIONAL (PHILS.) INC., petitioner, vs. COURT OF APPEALS, Fourteenth Division, COURT OF TAX APPEALS, and COMMISSIONER OF CUSTOMS,respondents. REGALADO, J.:p The instant petition seeks the reversal of the decision of respondent Court of Appeals dated May 8, 1990, affirming the decision rendered by respondent Court of Tax Appeals which found the vessel M/T "ULU WAI" liable under Section 2530(a) of the Tariff and Customs Code of the Philippines (Presidential Decree No. 1464), as amended, and its cargo of 1,100 metric tons of gas oil and 1,000 metric tons of fuel oil liable under Section 2530(a), (f), and (1-1) of the same Code and ordering the forfeiture of the said vessel and its cargo. 1 The facts as culled from the decision of the Court of Appeals in CA-G.R. SP No. 20470 are as follows: The M/T "ULU WAI" foreign vessel of Honduran registry, owned and operated by Feeder International Shipping Lines of Singapore, left Singapore on May 6, 1986 carrying 1,100 metric tons of gas oil and 1,000 metric tons of fuel oil consigned to Far East Synergy Corporation of Zamboanga, Philippines. On May 14, 1986, the vessel anchored at the vicinity of Guiuanon Island in Iloilo without notifying the Iloilo customs authorities. The presence of the vessel only came to the knowledge of the Iloilo authorities by information of the civilian informer in the area. Acting on said information, the Acting District Collector of Iloilo dispatched a Customs team on May 19, 1986 to verify the report. The Customs team found out that the vessel did not have on board the required ship and shipping documents, except for a clearance from the port authorities of Singapore clearing the vessel for "Zamboanga." In view thereof, the vessel and its cargo were held and a Warrant of Seizure and Detention over the same was issued after due investigation. The petitioner then filed its Motion to Dismiss and to Quash the Warrants of Seizure and Detention which the District Collector denied in his Order dated December 12, 1986. In the course of the forfeiture proceedings, the parties, through their respective counsel, agreed on a stipulation of facts, to wit: l. That the existence and identity of MT "ULU WAI" subject of Sl-2-86, herein identified as Exh. "A", is admitted. 2. That the existence and identity of l,100 metric tons of gas oil, subject of Sl2-86-A, herein identified as Exh. "B", is admitted; 3. That the existence and identity of 1,000 metric tons of fuel oil, subject of Sl-2-86 herein identified as Exh. "B-1", is admitted; 4. That M/T "ULU WAI" left Singapore May 6, 1986 and was cleared by Singapore customs authorities for Zamboanga, Philippines; 5. That subject vessel arrived at Guiuanon Island, Municipality of Nueva Valencia, sub-province of Guimaras, Province of Iloilo, Philippines, about 1120HRS, May 14,1986;

6. That subject vessel was boarded by Customs and Immigration authorities for the first time in the afternoon of May 19, 1986, at about 1600HRS; 7. That an apprehension report dated May 21, 1986, submitted by the Team leader of the Customs and Immigration Team, Roberto Intrepido, marked and identified as Exh. "C", is admitted; 8. That at the time of boarding, the Master of subject vessel could not produce any ship and/or shipping documents regarding her cargo except the Port Clearance Certificate No. 179999 issued by the Port of Singapore authority dated May 4, 1986, marked as Exh. "D", which is hereby admitted; 9. That on May 26, 1986, the Master of M/T "ULU WAI", Capt. Romeo E. Deposa filed a Marine Protest dated same date, which Marine Protest, marked and identified as Exh. "E", is hereby admitted; 10. That the sworn statement of said Capt. Romeo E. Deposa, marked and identified as Exh. "F", given on May 26, 1986 before Atty. Hernando Hinojales, Customs Legal Officer, is admitted; 11. That the sworn statement of Mr. Antonio Torres, Owner's representative of M/T "ULU WAI" marked and identified as Exh. "G" given before Atty. Hernando Hinojales on May 28,1986, is admitted; 12. That the sworn statement of Wilfredo Lumagpas, Master of M/T "CATHEAD" given before Lt. Dennis Azarraga on June 4, 1986, marked and identified as Exh. "H", is admitted; 13. That the existence of Fixture Note No. FN-M-86-05-41 entered into by and between the National Stevedoring & Lighterage Corporation and the Far East Synergy Corporation, marked and identified as Exh. "I", is admitted; and; 14. That the Preliminary Report of Survey Sounding Report dated June 17, 1986, signed by J.P. Piad, Surveyor of Interport Surveying Services, Inc. and duly attested by Ernesto Cutay, Chief Officer of the M/T "ULU WAI" marked and identified as Exh. "J", is also admitted. 2 On March 17, 1987, the District Collector issued his decision, with the following disposition: WHEREFORE, premises considered, the M/T "ULU WAI" hereby found guilty of violating Section 2530 (a) of the Tariff and Customs Code of the Philippines (PD 1464), as amended, while her cargo of 1,100 M/T Gas Oil and 1,000 M/T Fuel Oil are hereby found guilty of violating Section 2530* (a), (f), and (1-1) under the same Code and are hereby forfeited in favor of the Republic of the Philippines. SO ORDERED. 3 Petitioner appealed to the Commissioner of Customs who rendered a decision dated May 13, 1987, the decretal portion of which reads: WHEREFORE, premises considered, the decision dated March 19, 1987 of the District Collector of Customs of Iloilo, ordering the forfeiture of M/T "ULU WAI" and its cargo of 2,100 metric tons of gas and fuel oil is hereby affirmed in toto. SO ORDERED. 4 On June 25, 1987, petitioner filed a petition for review of the decisions of the Collector and the Commissioner of Customs with the Court of Tax Appeals, praying for the issuance of a writ of preliminary injunction and/or a restraining order to enjoin the Commissioner from implementing his decision. On December 14, 1988, the Court of Tax Appeals issued its decision, with this dispositive portion:

WHEREFORE, the decision of respondent Commissioner of Customs dated May 13, 1987, ordering the forfeiture of the vessel M/T "ULU WAI" for violation of Section 2530(a) of the Tariff and Custom Codes (sic), as amended, and its cargo of 1,100 metric tons of Gas Oil and 1,000 metric tons of Fuel Oil for violation of Section 2530 * (a) and (f), and (I-1) of the same Code, is hereby affirmed. With costs. SO ORDERED. 5 Petitioner, on January 19, 1990, filed a petition for review of the Court of Tax Appeals' decision with this Court. On March 21, 1990, we issued a resolution 6 referring the disposition of the case to the Court of Appeals in view of our decision in Development Bank of the Philippines vs. Court of Appeals, et al. 7 holding that final judgments or decrees of the Court of Tax Appeals are within the exclusive appellate jurisdiction of the Court of Appeals. On May 8, 1990, the Court of Appeals rendered its questioned decision affirming the decision of the Court of Tax Appeals. Petitioner's motion for reconsideration having been denied on July 4, 1990, it interposed this instant petition contending that: 1. The Court of Appeals erred in finding on the basis of circumstantial evidence that an illegal importation had been committed; 2. Petitioner was deprived of property without due process of law in that its right to be presumed innocent was not recognized and the decision was not supported by proof beyond reasonable doubt; and 3. The sworn statements of Deposa and Torres were taken without assistance of counsel in violation of their constitutional right thereto. 8 We find no merit in the Petition. 1. It must be here emphasized that a forfeiture proceeding under tariff and customs laws is not penal in nature, contrary to the argument advanced by herein petitioner. In the case of People vs. Court of first Instance of Rizal etc., et al., 9 this Court made an exhaustive analysis of the nature of forfeiture proceedings, in relation to criminal proceedings, as follows: . . . It is quite clear that seizure and forfeiture proceedings under the tariff and customs laws are not criminal in nature as they do not result in the conviction of the offender nor in the imposition of the penalty provided for in Section 3601 of the Code. As can be gleaned from Section 2533 of the code, seizure proceedings, such as those instituted in this case, are purely civil and administrative in character, the main purpose of which is to enforce the administrative fines or forfeiture incident to unlawful importation of goods or their deliberate possession. The penalty in seizure cases is distinct and separate from the criminal liability that might be imposed against the indicted importer or possessor and both kinds of penalties may be imposed. In the case at bar, the decision of the Collector of Customs, as in other seizure proceedings, concerns the res rather than the persona. The proceeding is a probe on contraband or illegally imported goods. These merchandise violated the revenue law of the country, and as such, have been prevented from being assimilated in lawful commerce until corresponding duties are paid thereon and the penalties imposed and satisfied either in the form of fine or of forfeiture in favor of the government who will dispose of them in accordance with law. The importer or possessor is treated differently. The fact that the administrative penalty be falls on him is an inconsequential incidence to criminal liability. By the same token, the probable guilt cannot be negated simply because he was not held administratively liable. The Collector's final declaration

that the articles are not subject to forfeiture does not detract his findings that untaxed goods were transported in respondents' car and seized from their possession by agents of the law. Whether criminal liability lurks on the strength of the provision of the Tariff and Customs Code adduced in the information can only be determined in a separate criminal action. Respondents' exoneration in the administrative cases cannot deprive the State of its right to prosecute. But under our penal laws, criminal responsibility, if any, must be proven not by preponderance of evidence but by proof beyond reasonable doubt. Considering, therefore, that proceedings for the forfeiture of goods illegally imported are not criminal in nature since they do not result in the conviction of the wrongdoer nor in the imposition upon him of a penalty, proof beyond reasonable doubt is not required in order to justify the forfeiture of the goods. In this case, the degree of proof required is merely substantial evidence which means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 10 In the case at bar, we find and so hold that the Government has sufficiently established that an illegal importation, or at least an attempt thereof, has been committed with the use of the vessel M/T "ULU WAI," thus warranting the forfeiture of said vessel and its cargo pursuant to the provisions of the Tariff and Customs Code. Before we proceed to a discussion of the factual findings of the Court of Appeals, it bears mention that petitioner, which is a corporate entity, has no personality to invoke the right to be presumed innocent which right is available only to an individual who is an accused in a criminal case. 2. The main issue for resolution is whether or not there was an illegal importation committed, or at least an attempt thereof, which would justify a forfeiture of the subject vessel and its cargo. Petitioner avers that respondent court erred in finding that an illegal importation had been committed on the basis of circumstantial evidence, erroneously relying on Section 5 (now Section 4), Rule 133 of the Rules of Court. As earlier stated, forfeiture proceedings are not criminal in nature, hence said provision of Rule 133 which involves. such circumstantial evidence as will produce a conviction beyond reasonable doubt does not apply. Section 1202 of the Tariff and Customs Code provides that importation begins when the carrying vessel or aircraft enters the jurisdiction of the Philippines with intention to unload therein. It is clear from the provision of the law that mere intent to unload is sufficient to commence an importation. And "intent," being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts, 11 and therefore can only be proved by unguarded, expressions, conduct and circumstances generally. 12 In the case at bar, that petitioner is guilty of illegal importation, there having been an intent to unload, is amply supported by substantial evidence as clearly demonstrated by this comprehensive discussion in respondent court's decision: It is undisputed that the vessel M/T "ULU WAI" entered the jurisdiction of the Philippines. The issue that calls for Our resolution is whether or not there was an intention to unload. The facts and circumstances borne by the evidence convince Us that there was intent to unload. The following circumstances unmistakably point to this conclusion. 1. Considering that the vessel came from Singapore, the route to Zamboanga was shorter and Iloilo lies further north. It is not logical for the sailing vessel to travel a longer distance to get the necessary repairs. 2. When the vessel M/T "ULU WAI" anchored at Guiuanon Island, Guimaras, Iloilo, it did not notify the Iloilo port or Customs authorities of its arrival. The master of the vessel did not file a marine protest until

12 days after it had anchored, despite the supposed urgency of the repairs needed and notwithstanding the provision (Sec. 1016) of the Code requiring the master to file protest within 24 hours. 3. At the time of boarding by the customs personnel, the required ship's and shipping documents were not on board except the clearance from Singaporean port officials clearing the vessel for Zamboanga. Petitioner claims that these were turned over to the shipping agent who boarded the vessel on May 15, 1986. However, this claim is belied by the sworn marine protest (Exhibit "E") of the master of M/T "ULU WAI" Mr. Romeo Deposa. It was only on or about the 20th of May when I instructed one of the crew to: get down of (sic) the vessel and find means and ways to contact the vessel's representative. Moreover, in such Sworn Statement (Exhibit "G"), ship agent, Antonio Torres, stated that he did not know the buyer of the oil, which is impossible if he had the Local Purchase Order of the alleged buyer, Pogun Construction SDN. Torres also swore that his knowledge came from the vessel's owner, without mentioning the shipping documents which indicate such data. He also said that he did not know the consignee of the oil which would have been patent from the documents. Lastly, as also pointed out by the court a quo, the captain of the vessel M/T "ULU WAI" Romeo Deposa, in his sworn statement to custom authorities on May 26, 1986, enumerated the documents he allegedly gave to Mr. Antonio Torres, but did not mention as among them the Local Purchase Order of Pogun Construction SDN and the Bill of Lading. 4. When the vessel was inspected, the tugboat M/T "CATHEAD", and the large M/T "SEMIRANO NO. 819" were alongside it. A fixture note revealed that the barge and the tugboat were contracted by Consignee Far East Synergy to load the cargo of the vessel into the awaiting barge and to discharge the same to Manila (Exhibits "I" and "I-1"). It is of no moment that the fixture note did not expressly mention the vessel M/T "ULU WAI" Government witnesses, Asencio and Lumagpas, testified that it was the vessel's cargo which was to be unloaded and brought to Manila by them. 13 The aforequoted findings of fact of respondent Court of Appeals are in consonance with the findings of both the Collector and the Commissioner of Customs, as affirmed by the Court of Tax Appeals. We, therefore, find no compelling reason to deviate from the elementary principle that findings of fact of the Court of Appeals, and of the administrative and quasi-judicial bodies for that matter, are entitled to great weight and are conclusive and binding upon this Court absent a showing of a grave abuse of discretion amounting to lack of jurisdiction. 3. The fact that the testimonies of Deposa and Torres were given without the assistance of counsel may not be considered an outright violation of their constitutional right to be assisted by counsel. As explained in the case ofNera vs. The Auditor General: 14 The right to the assistance of counsel is not indispensable to due process unless required by the Constitution or a law. Exception is made in the charter only during the custodial investigation of a person suspected of a crime, who may not waive his right to counsel except in writing and in the presence of counsel, and during the trial of the accused, who has the

right "to be heard by himself and counsel," either retained by him or provided for him by the government at its expense. These guarantees are embodied in the Constitution, along with the other rights of the person facing criminal prosecution, because of the odds he must contend with to defend his liberty (and before even his life) against the awesome authority of the State. In other proceedings, however, the need for the assistance of counsel is not as urgent nor is it deemed essential to their validity. There is nothing in the Constitution that says a party in a non-criminal proceeding is entitled to be represented by counsel and that without such representation he will not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side. Besides, if ever there was any doubt as to the veracity of the sworn statements of Deposa and Torres, they should have been presented during any appropriate stage of the proceedings to refute or deny the statements they made. This was not done by petitioner. Hence, the presumption that official duty was regularly performed stands. In addition, petitioner does not deny that Torres is himself a lawyer. Finally, petitioner simply contends that the sworn statements were taken without the assistance of counsel but, however, failed to allege or prove that the same were taken under anomalous circumstances which would render them inadmissible as evidence against petitioner. We thus find no compelling reason to doubt the validity or veracity of the said sworn statements. WHEREFORE, the instant petition is DENIED for lack of merit and the judgment appealed from is hereby AFFIRMED in toto. PETER ANDRADA, petitioner, vs. PHILIPPINES, respondent. THE PEOPLE OF THE

DECISION SANDOVAL-GUTIERREZ, J.: Before us is a petition for review on certiorari filed by Peter Andrada, petitioner, assailing the Decision[1] of the Court of Appeals dated September 18, 1997 in CA-G.R. CR No. 15851 and its Resolution[2] dated August 13, 1998. In an Information dated January 7, 1987, the Office of the City Prosecutor of Baguio City charged petitioner with frustrated murder committed as follows: That on or about the 24th day of September 1986, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused with intent to kill, with evident premeditation and with treachery, did then and there willfully, unlawfully, and feloniously attack, assault and hack one ARSENIO UGERIO on the head twice with a bolo thereby inflicting upon latter: hacking wound, head, resulting in 1) skull and scalp avulsion vertex; 2) depressed comminuted skull fracture, right parieto occipital with significant brain laceration; operation done; craniectomy; vertex debridement; craniectomy; right parieto occipital; dural repair; debridement, thus performing all the acts of execution which would produce the crime of Murder as a consequence thereof, but nevertheless, the felony was not consummated by reason of causes independent of the will of the accused, that is, by the timely medical attendance extended to Arsenio Ugerio which prevented his death. CONTRARY TO LAW.[3] When arraigned on February 9, 1987, petitioner, with the assistance of counsel de parte, pleaded not guilty to the crime charged. The hearing of the case ensued.

Evidence for the prosecution shows that on September 23, 1986, at around 11:30 in the evening, T/Sgt. Teodolfo Sumabong, of the defunct Philippine Constabulary (PC), was resting in the PC barracks at Camp Dado Dangwa, La Trinidad, Benguet when one Rommel Alcate called up requesting police assistance. Alcate claimed that a group of persons was suspiciously roaming around his boarding house in Ferguson Street, Baguio City. Sgt. Sumabong and two of his companions, Sgt. Gaces and Cpl. Arsenio Ugerio, went to Alcetes boarding house, arriving there past midnight. However, according to Alcate, the suspicious persons have left. On their way back to the camp at around 1:15 in the morning, the group dropped by Morlows Restaurant, Bokawkan Street, Baguio City, for a snack. They ordered coffee and sandwiches. While they were waiting to be served, a woman passed by their table. While Cpl. Ugerio was talking to her, a man, later identified as Peter Andrada, herein petitioner, approached the former and scolded him. Sgt. Sumabong, identifying himself as a PC non-commissioned officer, advised petitioner to pay his bill and go home as he was apparently drunk. Petitioner heeded Sgt. Sumabongs advice for he paid his bill and left the restaurant with his companions. While Sgt. Sumabong was paying his bill, he heard Cpl. Ugerio, seated about a meter away, moaning in pain. When Sgt. Sumabong turned around, he saw Cpl. Ugerio sprawled on the floor. Petitioner was hacking him on the head with a bolo. Sgt. Sumabong approached them but petitioner ran away, followed by a companion. Sgt. Sumabong chased them but to no avail. Upon Sgt. Sumabongs instruction, Sgt. Gaces brought Cpl. Ugerio, the victim, to the St. Louis University Hospital. Then Sgt. Sumabong reported the incident to the police station at Camdas Road and thereafter proceeded to the hospital. When he returned to the police station, he learned that petitioner was arrested in a waiting shed at the corner of Camdas Road and Magsaysay Avenue. The arresting officers then brought petitioner back to the restaurant where they recovered the bolo used in hacking the victim. Witnesses to the incident were interviewed by the police and they pointed to petitioner as the culprit. Dr. Francisco Fernandez, a neuro-surgery consultant, found that the victim suffered two (2) major injuries. The first was a scalping avulsion, around 5 centimeters wide, i.e., the chopping off of a part of the victims skull. The second was a depressed fracture, about 6 centimeters wide, found on the right parieto occipital area of the skull. Either wound, being fatal, would have caused the death of the victim had it not been for a timely medical treatment. After three (3) days, the victim was transferred to the V. Luna Hospital in Quezon City. Because of the injuries he sustained, he has remained incapable to remember or recall visual stimuli or information. Petitioner interposed self-defense and invoked the mitigating circumstance of voluntary surrender. His version is that he and one Romy Ramos were drinking beer with a hospitality girl named Liza inside Morlows Restaurant, when three military men occupied the table next to them. They had pistols tucked in their waists. Without any warning or provocation, two of the men, whom he identified as Cpl. Ugerio and Sgt. Sumabong, approached him, slapped his face several times and pointed their guns to his head. They cursed him and threatened to summarily execute him because he was so boastful. Cpl. Ugerio then collared him and dragged him outside the restaurant, while Sgt. Sumabing followed. Fearful that he might be killed, petitioner pulled out his bolo, wrapped in a newspaper, from his waist and swung it at the two military men. He did not see if he hit any of them. Then he ran to his house in Camdas Subdivision. He checked to see if his mother or grandmother was at home so either of them could assist him in surrendering to the police. But neither was present. On his way to surrender to the police, he met his mother accompanied by a policeman. They then proceeded to the police sub-station at Magsaysay Avenue where he surrendered. After hearing, the trial court rendered its Decision, the dispositive portion of which is quoted below, thus: WHEREFORE, premises considered, the Court finds the accused PETER ANDRADA guilty beyond reasonable doubt of the crime of frustrated murder. The Court hereby sentences him to suffer the penalty of imprisonment of 8 years and 20 days as MINIMUM to 14 years, 10 months and 20 days as

MAXIMUM; to indemnify the sum of P3,000.00, representing part of the victims expenses for medical services and medicine, and to pay the costs. SO ORDERED.[4] On appeal, the Court of Appeals affirmed with modification the trial courts Decision, thus: WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED WITH THE MODIFICATION THAT THE APPELLANT IS SENTENCED TO AN INDETERMINATE PENALTY OF FOUR (4) YEARS AND TWO (2) MONTHS OF PRISION CORRECIONAL, AS MINIMUM, TO EIGHT (8) YEARS AND TWENTY (20) DAYS OF PRISION MAYOR, AS MAXIMUM. SO ORDERED.[5] The Court of Appeals, in modifying the imposable penalty, found that petitioner is entitled to the privileged mitigating circumstance of minority as he was only 17 years, 9 months and 20 days old at the time of the incident. Petitioner then filed a motion for reconsideration, but this was denied by the Appellate Court in its Resolution dated August 13, 1998. Hence, the instant petition. The issues for our resolution are: (1) whether petitioners right to due process was violated; (2) whether his plea of self-defense is in order; (3) whether the crime committed is frustrated murder or frustrated homicide; and (4) whether he is entitled to any mitigating circumstance, assuming he is guilty. On the first issue, petitioner argues that the Court of Appeals erred in not holding that the trial court violated his constitutional right to due process. He contends that his counsel: 1. Failed to present all the witnesses who could have testified that he is innocent of the crime charged; Failed to present the medical certificate showing the injuries inflicted upon him by the victim; Did not notify him to attend the hearing when Sgt. Sumabong was cross-examined; and Failed to submit a memorandum.

2.

3.

4.

In sum, petitioner ascribes gross incompetence or gross negligence to his counsel. The Office of the Solicitor General (OSG) counters that there was no violation of petitioners right to due process. Petitioner was represented by counsel of his choice. If the latters performance and competence fell short of petitioners expectations, then he should not blame either the trial court or the Court of Appeals. In criminal cases, the negligence or incompetence of counsel to be deemed gross must have prejudiced the constitutional right of an accused to be heard.[6] In the following cases, we held that there has been gross negligence or incompetence on the part of counsel for the accused, thus: In US v. Gimenez,[7] we remanded a criminal case for new trial when counsel for an accused inadvertently substituted a plea of guilty for an earlier plea of not guilty, thus resulting in the precipitate conviction of his client. In Aguilar v. Court of Appeals and People,[8] we ordered a dismissed appeal from a conviction for estafa to be reinstated after it was shown that the failure to file the appellants brief on time was due to sheer irresponsibility on the part of appellants counsel. In De Guzman v. Sandiganbayan,[9] we remanded the case for reception of evidence after counsel for the accused filed a demurrer to the evidence

notwithstanding that his motion for leave of court was denied, thus precluding the accused to present his evidence. In Reyes v. Court of Appeals,[10] we ordered a new trial after a showing that counsel for the accused abandoned her without explanation. In People v. Bascuiguin,[11] we held that the arraignment is not valid. The accused was not properly represented by counsel de officio since he merely conferred with his client for a few minutes and advised him to plead guilty to the crime of rape with homicide. None of the foregoing incidents is present in the instant case. Instead, records show that counsel for petitioner actively participated in the crossexamination of the witnesses for the prosecution to test their credibility. At any rate, the fact that he did not choose to present other witnesses did not affect any of petitioners substantial rights. Besides, said counsel might have valid reasons why he did not call to the witness stand those witnesses. We note that petitioner was present during the hearing. If he believed that his counsel de parte was not competent, he could have secured the services of a new counsel. He did not. Having decided to retain the services of his counsel during the entire proceedings, petitioner must be deemed bound by any mistake committed by him. For if an accused feels that his counsel is inept, he should take action by discharging him earlier, instead of waiting until an adverse decision is rendered and thereupon blame his counsel for incompetence.[12] The long-standing rule in this jurisdiction is that a client is bound by the mistakes of his lawyer. Mistakes of attorneys as to the competency of a witness, the sufficiency, relevancy or irrelevancy of certain evidence, the proper defense or the burden of proof, failure to introduce evidence, to summon witnesses, and to argue the case, unless they prejudice the client and prevent him from properly presenting his case, do not constitute gross incompetence or negligence.[13] Having found that petitioners counsel was not so inept or motivated by bad faith, or so careless and negligent of his duties as to seriously prejudice the substantial rights of petitioner or prevent him from putting up a proper defense, we hold that he is bound by the decisions of his counsel regarding the conduct of the case.[14] On the second issue, petitioner invokes self-defense. Hence, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself. For in invoking self-defense, the accused admits killing or seriously wounding the victim and thus, has the burden to justify his act.[15] The requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to repel or prevent it; and (3) lack of sufficient provocation of the part of the person defending himself. [16] We find that the petitioner has not adequately discharged his burden of proving the elements of self-defense. The trial court and the Court of Appeals found that at the time he hacked the victim, the latter was still seated while he (petitioner) was behind him. Indeed, how could there be an unlawful aggression on the part of the victim at that instance? Petitioners bare assertions that the victim slapped him, poked a handgun at him, and threatened to salvage him were not duly proved by the evidence for the defense. Rather, the prosecution established that it was petitioner who unexpectedly attacked the victim from behind. Clearly, the aggressor was petitioner. Since the first element of self-defense is not present here, such defense must fail. On the third issue, petitioner contends that assuming he is guilty, he should only be convicted of frustrated homicide, not frustrated murder. He insists that treachery was not present. His hacking the victim was a spur-ofthe-moment act prompted by self-preservation. We are not persuaded. There is alevosia when the offender commits any of the crimes against persons employing means, methods, or forms in the execution thereof which tend directly and especially to ensure the execution of the crime without risk to himself from any defense which the offended party might make.[17] We agree with the lower courts that the petitioner planned to kill the victim with treachery in mind. At that time, the victim was seated, having just finished a meal at a late hour. His back was towards petitioner when the latter, without warning, hacked him twice on his head with a bolo. The attack was so sudden and unexpected that the victim had no opportunity either to avert the attack or to defend himself. Considering that petitioner had performed all the acts of execution which would have resulted in the death of the victim, had it not been for timely medical assistance, a cause not of the will of the petitioner, and

considering further the presence of treachery, then, the crime committed is frustrated murder, not frustrated homicide. On the fourth issue, petitioner insists that the mitigating circumstance of voluntary surrender should have been appreciated in his favor. Evidence for the prosecution shows that petitioner, after attacking the victim, ran away. He was apprehended by responding police officers in the waiting shed at the corner of Cambas Road and Magsaysay Avenue. For voluntary surrender to be appreciated, the surrender must bespontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or wishes to save them the trouble and expenses that would be necessarily incurred in his search and capture.[18] Here, the surrender was not spontaneous. Anent the modification of the penalty by the Court of Appeals, the same is in order. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 18, 1997 and its Resolution dated August 13, 1998 in CA-G.R. CR No. 15851 are AFFIRMED. Costs against petitioner.

PEOPLE OF THE PHILIPPINES, Appellee, vs. FRANCISCO JUAN LARRAAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERT CAO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and JAMES ANDREW UY alias "MM," Appellants. RESOLUTION PER CURIAM: Most jurisdictions recognize age as a barrier to having full responsibility over ones action.1 Our legal system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the privileged mitigating circumstance of minority embodied in Article 68 of the Revised Penal Code -- the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by reason of his age, is presumed to have acted with less discernment. The case at bar is another instance when the privileged mitigating circumstance of minority must apply. For our resolution is the motion for reconsideration 2 filed by brothers James Anthony and James Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on the ground that he was a minor at the time the crimes were committed. A brief review of the pertinent facts is imperative. On February 3, 2004, we rendered a Decision 3 convicting the Uy brothers, together with Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag of the crimes of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape; and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision reads: WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG;and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG;and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years ofprision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM; (4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P150,000.00 as moral damages; and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. SO ORDERED. On March 23, 2004, the Uy brothers filed a motion for reconsideration anchored on the following grounds: I ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997; II THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING.4 The issues raised in the above motion being intertwined with those raised by Larraaga, Aznar, Adlawan, Cao and Balansag in their separate motions for reconsideration, we deemed it appropriate to consolidate the motions. After a painstaking evaluation of every piece and specie of evidence presented before the trial court in response to the movants plea for the reversal of their conviction, still we are convinced that the movants guilt has been proved beyond reasonable doubt. Thus, in our Resolution dated July 21, 2005, we denied all the motions. However, left unresolved is the issue of James Andrews minority. Hence, this disquisition. In their motion, the Uy brothers claim that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed. To substantiate such claim, he begs leave and pleads that we admit at this stage of the proceedings his (1) Certificate of Live Birth issued

by the National Statistics Office, and (2) Baptismal Certificate. In the ultimate, he prays that his penalty be reduced, as in the case of his brother James Anthony. Considering that the entry of James Andrews birth in the proffered Certificate of Live Birth is not legible, we required the Solicitor General (a) to secure from the City Civil Registrar of Cotobato, as well as the National Statistics Office, a clear and legible copy of James Certificate of Live Birth, and thereafter, (b) to file an extensive comment on the Uy brothers motion, solely on the issue of James Andrews minority. On November 17, 2005, the Solicitor General submitted his comment. Attached therewith are clear and legible copies of James Certificate of Live Birth duly certified by the Office of the City Civil Registrar of Cotobato and the National Statistics Office. Both documents bear the entry October 27, 1979 as the date of his birth, thus, showing that he was indeed only 17 years and 262 days old when the crimes were committed on July 16, 1997. Consequently, the Solicitor General recommended that the penalty imposed on James Andrew be modified as follows: In Criminal Case No. CBU-45303 for the special complex crime of kidnapping and serious illegal detention with homicide and rape, the death penalty should be reduced to reclusion perpetua. In Criminal Case No. CBU-45304, for the crime of simple kidnapping and serious illegal detention, the penalty of reclusion perpetua should be reduced to twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, similar to the penalty imposed on his brother James Anthony in Criminal Case No. CBU-45303. The motion is meritorious. Article 68 of the Revised Penal Code provides: ART. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of this Code, the following rules shall be observed: xxx 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.5 On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.6 There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.7 Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum. WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU45304, the penalty of twelve (12) years ofprision mayor in its maximum

period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum. RIGHT TO BE INFORMED PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE VALDESANCHO Y DELMO, accused-appellant. PUNO, J.: This Court has many times declared that the date of commission of the rape is not an essential element of the crime.[1] While this is true in the cases at bar, the dates when the rapes were committed are nonetheless essential to the accused Vicente Valdesanchos defense of alibi. Thus, for failure of the prosecution to allege in the information and prove during trial the correct dates of the rapes allegedly committed against the victim, Elvie Basco, the accused will be let off the hook on due process considerations. On March 27, 1996, two informations were filed against the accused Valdesancho. In Criminal Case No. S-1964, the information reads, viz: "That on or about August 15, 1994 at Sitio Mahabang Parang, Barangay Nanguma, Municipality of Mabitac, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs and by means of force and violence, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one Elvie B. Basco, 15 years old, single (,) against her will and consent and to her damage and prejudice. CONTRARY TO LAW."[2] In Criminal Case No. S-1965, the information reads, viz: "That on or about the evening of August 16, 1994 at Sitio Mahabang Parang, Barangay Nanguma, Municipality of Mabitac, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs and by means of force and violence, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one Elvie B. Basco, 15 years of age, single (,) against her will and consent and to her damage and prejudice. CONTRARY TO LAW."[3] The prosecution evidence shows that the accused Valdesancho is the husband of Elvie's sister, Erlinda Valdesancho. Elvie and her two younger brothers, Erick and Eddie, lived with their brother in the mountains of Barangay Minayutan, Famy, Laguna. In 1994, however, Elvie's mother, Leonida Basco, requested the spouses Erlinda and the accused Valdesancho to let Elvie, Erick and Eddie live in their house in San Antonio, Mabitac, Laguna. The three were going to study in Barangay San Antonio. They resided with the accused from June 24, 1994 to June 1995. Elvie was then fourteen years old and in Grade 1 at the Barangay San Antonio School.[4] The first incident of rape happened in the early morning of August 15, 1994. Elvie was in the house of the accused Valdesancho while Erlinda was then in Manila. The accused called Elvie into his room and ordered her to powder his back. After a while, Elvie asked the accused to excuse her because she had to cook breakfast. The accused held her and refused to release her. He tied her hands at her back and laid her on the bed. He removed Elvie's shorts and panty and then took off his pants. Elvie pleaded with the accused not to violate her. She tried to keep her legs together, but the accused forcibly spread her legs. He succeeded in having carnal knowledge of Elvie. The painful experience caused her to bleed. Having satisfied his lust, the accused stood up and put on his clothes. He untied Elvie's hands and she dressed up. The accused warned her not to reveal the dastardly act to anybody, otherwise he would kill her and her family. All this time, Elvie's brothers were sleeping in the other room.[5]

The second incident of rape happened in the evening of August 16, 1994. Elvie was in the house of the accused Valdesancho studying. He called Elvie to his room and ordered her to look under the bed for a chick. She did so, and while she was on her way out of the room, the accused blocked her path. The accused laid her on the bed, removed her shorts and panty, kissed her on the cheeks and lips, and again had carnal knowledge of her against her will. She hurt. After succumbing to his beastly instinct, the accused put on his brief and pants. Elvie also put on her clothes. Again, the accused threatened Elvie not to report the incident to anybody, otherwise he would kill her and her family. Elvie kept her harrowing experience to herself for fear that the accused would carry out his threat.[6] In September 1995, however, when Elvie was already residing with her brother and mother in Barangay Minayutan, Famy, Laguna, she reported the rape incidents to her Tiya Soling. She was fearful that the accused might rape her again. Although she no longer lived with the accused, the latter stayed in their (Elvie's) house in Barangay Minayutan for less than a month in September, 1995 and he gave her malicious looks. Tiya Soling reported the rape incidents to Elvie's mother who verified the story from Elvie herself. On January 15, 1996, Elvie executed a sworn statement at the Mabitac Police Station narrating the rape incidents.[7] Elvie's mother, Leonida Basco, testified that in 1994, she requested her three children, Elvie, Erick and Eddie to live with her daughter, Erlinda, and the accused Valdesancho in Mahabang Parang. Elvie was then fourteen years old. Consistent with Elvie's testimony, Leonida declared that it was Soledad Nero (Elvie's Tiya Soling) who first told her that the accused raped Elvie. Elvie confirmed to her that she had been raped twice by the accused in August 1994. Leonida did not immediately take action on the matter as the accused was her son-in-law. But after she was convinced of Elvie's story, she accompanied her to the police station in the Municipal Building of Mabitac. Upon advice by a certain Mayor Carpio, Elvie was medically examined. Thereafter, they filed a criminal complaint for rape against the accused.[8] She averred that she did not have any misunderstanding with Erlinda and the accused Valdesancho.[9] Dra. Nimfa Pastrana, Medico-Legal Officer at the General Cailles Memorial Hospital, examined Elvie on January 13, 1996. On January 19, 1996, she issued a medical certificate stating her findings, viz: "Old hymenal incomplete lacerations noted at 12, 5 and 4 o'clock position. . . Old hymenal complete lacerations at 3 and 7 o'clock positions."[10] She opined that the lacerations could have been caused by a man's private part or fingers inserted in the vagina months or years before she examined Elvie. Elvie told her she had been raped. Dra. Pastrana noted in a logbook that according to Elvie, the rape took place on August 4, 1994.[11] Erlinda Valdesancho, wife of the accused, testified for the defense. She declared that on August 15 and 16, 1994, she was in their house at Mahabang Parang, San Antonio, Mabitac, Laguna. Her husband was not home on those days because he was in J. Rizal St., Sta. Maria, Laguna helping his friends cook food for the town fiesta. The distance between that place and their house is about five kilometers. Erlinda was then with her brothers Erick and Eddie and her sister Elvie. On August 15, 1994, Erlinda awoke at about 3:00 or 4:00 a.m. She woke up Elvie, Erick, and Eddie to get ready for school. The three children went to school at San Antonio, Mabitac, Laguna, and nothing unusual happened that date. Elvie was then thirteen nearing fourteen years old and in Grade 1. The whole day of August 15, 1994, Erlinda made candies, crocheted, and cleaned the house. On August 16, 1994, Erlinda testified that she woke up at about 5:00 a.m. In the subsequent part of her testimony, however, Erlinda surprisingly said that on August 16, 1994, she did not see Elvie. Allegedly, Elvie no longer lived with her and the accused by the summer vacation of 1994. It was in 1993 that Elvie, Erick, and Eddie were entrusted to her and her husband, accused Valdesancho. They shouldered the school expenses of the three who went to San Antonio Elementary School. The siblings stayed with them until summer vacation in 1994. Thereafter, they were brought to Barangay Minayutan, Famy, Laguna, then to Saksak, Sta. Maria, Laguna, and finally to Ilog Putol, Siniloan, Laguna.[12] Erlinda further testified that her father died on July 4, 1991. Her mother, Leonida, did not remarry but lived in with a lesbian named Melita Flores.

This was the source of animosity between them. On January 4, 1995, prior to the filing of the instant rape cases, her mother berated her. Her mother was mad because she advised her to separate from Melita. The latter had children of her own and their relationship was an embarrassment. Erlinda knew that Melita was a lesbian because the latter left her husband for Leonida.[13] On additional direct examination, about a month after her initial testimony where she stated that Elvie lived with them on August 15 and 16, 1994, Erlinda testified that Elvie could not have possibly been raped by her husband. She explained that Elvie was no longer living with them at the time of the alleged rape incidents.[14] By then, Elvie was already residing with her brothers Elmer and Edgar in Barangay Minayutan, Famy, Laguna. Elvie was then studying in Barangay Minayutan and was in Grade 2. The school was about twelve meters from Elmer's residence and 150 meters from the house of Edgar. To buttress her claim, she presented to the court a certification stating that Elvie Basco studied and finished Grade 1 from 1993 to 1994 at the Paaralang Elementarya ng San Antonio, Mabitac, Laguna. The certification was signed by Victoria Cuevas, a Grade 1 and 2 teacher and Ma. Rona Aguja, the Gurong Namamahala.[15] She also presented a certification dated February 12, 1997, stating that Elvie Basco studied Grade 2 at Minayutan Elementary School in Barangay Minayutan, Famy, Laguna during the school year 1994-1995. This was signed by a certain Edgardo Planillo.[16] Erlinda also presented a certification dated February 25, 1997, stating that Elvie attended her classes in Minayutan Elementary School from August 1 to 31, 1994. It was signed by Elvie's teacher, Mercedita Ramos.[17] Erlinda denied going to Manila occassionally during the year Elvie lived with her and her husband. She also testified that she and her husband did not have any misunderstanding with Elvie before the latter lodged a complaint for rape against the accused.[18] Aquilino Agustin also testified for the accused. He is a retired PNP member and farmer residing in Sta. Maria, Laguna. He owned a riceland in Sitio Mahabang Parang, Barangay San Antonio, Mabitac, Laguna and had known the accused Valdesancho for about five years. On August 14, 1994, Agustin went to the house of the accused and asked tha latter to help him butcher a pig for the town fiesta the next day. The accused went to Sta. Maria before lunch time on August 15, 1994. He helped butcher a pig and stayed there the whole day. The following day, or on August 16, 1994, the accused again went to Agustin's house. He arrived at about 6:00 in the morning and helped cook food. He sliced meat and other ingredients. He left Agustin's house early morning the following day. On cross-examination, however, Agustin testified that the accused left his house in the afternoon of August 16, 1994, and not the following day. A year after or on August 15 and 16, 1995, the accused again helped prepare food for the town fiesta. In 1996, Agustin asked his neighbors, among whom were his godchildren in marriage, to help prepare the food.[19] Mercedita Ramos likewise took the witness stand for the accused. She is a teacher at the Famy Central Elementary School. Previously, she taught in Barangay Minayutan, Famy, Laguna beginning school year 1994-1995. Elvie Basco was her pupil in Grade 2 from June 6, 1994 to March, 1995. She identified the certification she issued on February 25, 1997 upon request of Erlinda Valdesancho. It stated that Elvie attended classes in Minayutan Elementary School on August 1 to 31, 1994. She based her certification on Form 18-E which was in the custody of Mr. Edgardo Planillo, the District Supervisor of the Department of Education, Culture and Sports in Famy, Laguna. Form 18-E does not contain the exact month of attendance, but it states that Erlinda was absent for only one (1) day during school year 19941995.[20] Edgardo Planillo also testified for the accused. At the time he testified on May 21, 1997, he had been the District Supervisor for only ten months. He identified the certification he issued to Erlinda Valdesancho based on Form 18-E-1 which was submitted prior to his assumption of office. It stated that during the school year 1994-95, Elvie Basco was in Grade 2 at the Minayutan Barrio School.[21] The accused Valdesancho then took the witness stand. He testified that in 1993, Elvie Basco's mother entrusted Elvie to him and his wife to study. Elvie was then in Grade 1 at the San Antonio Elementary School in Mabitac, Laguna. Subsequently, she studied Grade 2 in Minayutan, Famy, Laguna.

The accused denied the rape charges leveled against him. He contends that Elvie, with the assistance of her mother Leonida, filed the instant cases against him because of the serious quarrel between his wife, Erlinda, and Leonida spurred by Leonida's relationship with a lesbian named Melita Flores. He knew that Melita was a lesbian because Leonida and Melita lived for one month in his house in 1995. Melita herself admitted to him that she was a lesbian. Leonida told him one time, "Darating ang araw luluha ng dugo ang aking asawa at gagapang kami parang ahas sa hirap."[22] He alleged another reason why Leonida harbored ill feelings against him. Allegedly, Leonida burned his house. This prompted him to file a case against Leonida. In 1991, he likewise filed a complaint against Leonida's husband, Carlito Basco, for the burning of the house of the accused's employer. The accused, however, declared he had no misunderstanding or quarrel with Elvie. On August 15, 1994, the accused alleged he was in Sta. Maria, helping Ka Usting (Aquilino Agustin) prepare for the town fiesta. Sta. Maria is about two kilometers away from Mabitac where the accused lives. He arrived in Agustin's house at 5:00 in the morning and stayed there up to 5:00 in the afternoon. He spent the night at the house of his compadre, Nestor Flores. On August 16, 1994, he went home. His wife was at home. He stayed in his house up to the evening. He averred that on August 15 and 16, 1994, Elvie was no longer living with them. She was staying in Minayutan and was in Grade 2 at Barangay Minayutan, about 30 kilometers from Mabitac. The following year's fiesta or on August 15 and 16, 1995, the accused was also in Sta. Maria helping prepare for the town fiesta. He could not remember, however, where he was on August 14, 15, and 16, 1993 nor on August 15 and 16, 1992. The trial court upheld the prosecution's story. It convicted the accused, viz: "WHEREFORE, premises considered, judgment is hereby rendered finding accused VICENTE VALDESANCHO y DELMO guilty beyond reasonable doubt of the crime of "RAPE" committed against private complainant Elvie Basco, in the two (2) informations for rape, hereby sentences him to two (2) Reclusion Perpetua; to pay the victim the sum of P100,000.00 for moral damages in the two (2) cases; and to pay the cost. Accused Vicente Valdesancho y Delmo being a detained prisoner, it is hereby ordered that he be credited with the full length of his preventive imprisonment if he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoner, otherwise, he shall be credited with 4/5 of the period he had undergone preventive imprisonment, in accordance with Art. 29 of the Revised Penal Code as amended."[23] Hence, this appeal with the following assignment of errors: "I. The trial court erred in giving full weight and credence to the version of the prosecution and in disregarding the version of the defense. II. The lower court erred in convicting the accused-appellant on two (2) counts of rape alleged in the information to have been committed on the 15th and 16th of August 1994 whereas the decision stated that the two (2) counts of rape were committed on the 15th and 16th of August 1993, thus depriving the accused of the right to be informed of the nature and cause of accusation against him." In the cases at bar, the informations charged that the crimes were committed on August 15 and 16, 1994. The entire evidence of the prosecution, including the testimony of Elvie, showed that Elvie was allegedly raped by the accused on said dates while living in the latters house. Contrary to the prosecutions evidence, the defense convincingly showed that in August 1994, Elvie was already in Grade 2 at the Barangay Minayutan Elementary School and living with her brothers in Minayutan. Nonetheless, the trial court convicted the accused of two counts of rape committed on August 15 and 16, 1993, instead of August 15 and 16, 1994 as alleged in the information and in the prosecution's evidence. It explained:

"In the informations, the incidents happened allegedly on August 15, and 16, 1994. Considering as adverted to that private complainant is of tender age, only fourteen (14) years old, and her educational attainment, only Grade I, she could not possibly remember the dates when she was raped, and these cases were filed two (2) years thereafter. But as adverted to, she is certain that she was sexually molested when she was residing in the house of accused located at Sitio Mahabang Parang, Brgy. Nanguma, Mabitac, Laguna, and studying at Brgy. San Antonio Elementary School, Mabitac, Laguna, that is in the year 1993."[24] The accused cries foul over his conviction for two counts of rape committed on August 15 and 16, 1993 when the informations filed against him alleged August 15 and 16, 1994 as the dates when the crimes were committed. He contends that he was denied due process to defend himself. His whole defense of alibi centered around August 15 and 16, 1994, the alleged dates of the rape incidents.[25] We agree. Article III, Section 14 of the 1987 Constitution mandates that no person shall be held liable for a criminal offense without due process of law. It further provides that in all criminal prosecutions, the accused shall be informed of the nature and cause of accusation against him and shall enjoy the right to be heard by himself and counsel. Similarly, the Revised Rules of Criminal Procedure, as amended, which took effect on December 1, 2000, provides that in all criminal prosecutions, it is the right of the accused to be informed of the nature and cause of the accusation against him. To convict an accused for an offense not alleged in the complaint or information violates such right.[26] The rationale behind informing the accused in writing of the charges against him was explained by this Court as early as 1904 in U.S. v. Karelsen,[27] viz: "First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had (United States vs. Cruikshank, 92 U.S. 542). In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstances necessary to constitute the crime charged."[28] In the cases at bar, the informations in Criminal Case No. S-1964 and Criminal Case No. S-1965 charged the accused with rape committed against Elvie Basco on August 15, 1994 and August 16, 1994, respectively. All evidence of the prosecution tried to prove that the victim was raped by the accused on these dates. The accused interposed the defense of alibi. He proved that on these dates he was in the town of Sta. Maria helping a friend butcher a pig for the town fiesta. He also proved that on said dates, the victim, Elvie, was no longer living with them in Mabitac, Laguna. She already transferred to Minayutan, Famy, Laguna where she was in Grade 2. Despite the parties evidence, the trial court convicted the accused for allegedly raping Elvie on August 15 and 16, 1993. Without doubt, the accused was not given any chance to prove where he was on August 15 and 16, 1993. What he did was to prove where he was on August 15 and 16, 1994 for the informations charged him with rapes on those specific dates. He had no opportunity to defend himself on the rapes allegedly committed on the earlier dates. This is plain denial of due process. WHEREFORE, the impugned decision is REVERSED. The accused Vicente Valdesancho y Delmo is ACQUITTED of the two charges of rape leveled against him in Criminal Cases No. S-1964 and S-1965. G.R. No. 121562 July 10, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE QUITLONG y FRIAS, SALVADOR QUITLONG y FRIAS and EMILIO SENOTO, Jr., y PASCUA, accused-appellants.

VITUG, J.: The Regional Trial Court of Baguio City, Branch 5, 1 disposed of Criminal Case No. 13336-R; thus: WHEREFORE, the Court finds and declares the accused RONNIE QUITLONG Y FRIAS, SALVADOR QUITLONG Y FRIAS and EMILIO SENOTO, JR. Y PASCUA guilty beyond reasonable doubt of the crime of murder as charged and hereby sentences EACH of them to suffer an indeterminate penalty of TWENTY (20) YEARS of reclusion temporal, as minimum, to FORTY (40) YEARS of reclusion perpetua, as maximum; to indemnify, jointly and severally, the heirs of the deceased Jonathan Calpito y Castro in the sums of P50,000.00 for the latter's death; P35,700.00 as consequential damages; and P100,000.00 as moral damages, plus their proportionate shares in the costs. In the service of their sentence, the said accused shall be credited with their preventive imprisonment under the terms and conditions prescribed in Article 29 of the Revised Penal Code, as amended. Conformably with Section 1, Rule 111 of the 1985 Rules on Criminal Procedure, as amended, the corresponding filing fee for the P100,000.00 moral damages herein awarded shall constitute a first lien on this judgment. The evidence knife, Exhibit "B", is hereby declared forfeited in favor of the Government. Pursuant to Circular No. 4-92-A of the Court Administrator, the Warden of the City Jail of Baguio is directed to immediately transfer the same accused to the custody of the Bureau of Corrections, Muntinlupa, Metro Manila. Let a copy of this Decision be furnished the Warden of the City Jail of Baguio for his information and guidance. There being no indication that the remaining accused, Jesus Mendoza, and several John Does could be arrested/identified and arrested shortly, let the case against them be, as it is hereby, archived without prejudice to its prosecution upon their apprehension. SO ORDERED. 2 The case was generated by an information for murder filed on 25 October 1994 against accused-appellants Salvador Quitlong, Ronnie Quitlong, Emilio Senoto, Jr., and several other unidentified persons following the killing of Jonathan Calpito. Accused-appellants, shortly after the filing of the information, submitted a motion for reinvestigation alleging that "it was a certain Jesus Mendoza who stabbed the victim after getting irked when the latter urinated near and in front" 3 of his wife. The trial court acted favorably on the motion. On 12 December 1994, the City Prosecutor filed a motion to admit an amended information on the basis of affidavits 4 executed by Nonita F. delos Reyes, Nicanor Ellamil, Lydia Q. Cultura, as well as accusedappellants Salvador and Ronnie Quitlong themselves, to the effect that it was Jesus Mendoza who had been responsible for the death of the victim. The information, as amended, included Jesus Mendoza among the named accused. 5 Unlike accused-appellants who were immediately arrested after the commission of the crime, Jesus Mendoza remained at large. At their arraignment, the detained accused pleaded not guilty to the crime charged. The evidence of the prosecution has narrated how a simple misunderstanding and relatively so small a matter could lead to so dastardly and unfortunate an outcome.

At around six o'clock in the evening of 20 October 1994, Lito Adjaro, who had just come from work as a dispatcher of passenger jeepneys plying the Baguio City-Loakan route, repaired to a nearby game parlor where he saw 19year-old University of Baguio medical technology student Jonathan Calpito playing billiards with Jonathan Gosil. Adjaro was Calpito's neighbor and barkada (gangmate) in Loakan. At past eight o'clock, Calpito decided that it was time to go home. Since at that hour there were no longer passenger jeepneys bound for Loakan, the three friends decided to walk down to Harrison Road behind the Melvin Jones grandstand to grab a taxicab. The area was well-lighted. Wanting to partake of some "fishballs, Calpito and Gosil approached a fishball vendor about three to four meters away. The two returned with three sticks of fishballs worth fifteen pesos. When Calpito counted the change for his 100-peso bill, he saw that he had only been handed back thirty five pesos. Confronted by Calpito and Gosil, the fishball vendor would not admit that he had short-changed Calpito. Herbert Soriano, a civil engineer driving a passenger-type jeep on his way to Loakan from the Dominican Hill, was seen passing by. Adjaro, his neighbor, hailed him. Soriano positioned his jeep around four or five meters from where Gosil and Calpito were still having an argument with the fishball vendor. Soriano called out to the two to board the jeep but they ignored him. Moments later, Soriano saw eight men rushing towards Gosil and Calpito from the direction of the taxicab-stand behind his jeep. Some of the men later backed out but four of them pursued Calpito who, meanwhile, had started to retreat from the group. The four men, however, succeeded in cornering Calpito. Soriano saw Calpito fall to the ground and thought that the latter had just been weakened by the men's punches but, when Calpito was carried on board his jeep, Soriano realized that Calpito had been stabbed. Adjaro saw no less than eight men approach and aggressively confront Calpito and Gosil. Seeing that his friends were outnumbered, Adjaro shouted at Calpito and Gosil to run posthaste. Adjaro promptly boarded Soriano's jeep. From where he sat, Adjaro could see appellant Emilio Senoto embracing Calpito from behind and appellants Salvador Quitlong and Ronnie Quitlong holding Calpito's right hand and left hand, respectively. Calpito struggled unsuccessfully to free himself. Suddenly, appellant Ronnie Quitlong stabbed Calpito at the left side of the body just below the nipple. Once the three men had released their hold on Calpito, the latter fell to the ground. Despite the condition that Calpito was already in, his assailants still went on hitting him with their feet. Police officers Jerry Patacsil, Arthur Viado and Nito Revivis were on foot patrol that evening. Attracted by the commotion along Harrison Road, the police officers hurriedly proceeded to the brightly-lighted place and saw Calpito lying on the ground. Three of the malefactors started to flee upon seeing the approaching police officers but the rest kept on with their attack on Calpito. Patacsil drew out his service firearm and told the attackers to freeze. Seeing that the victim had bloodstains on his left chest, Patacsil advised the victim's companions to rush him to the hospital. Soriano, Gosil and Adjaro took Calpito to the Baguio General Hospital on board Soriano's Jeep. The police officers brought accused-appellants to the police station. SPO1 Gabriel Isican prepared the complaint assignment sheet 6 before turning them over to the investigation division. SPO4 Avelino Tolean, officer-in-charge of the police investigation division on the 4:00 p.m. to 12:00 midnight shift, also received a call from the Baguio General Hospital about the incident. SPO4 Tolean, along with SPO1 Rafael Ortencio, Jr., and two "Bombo" radio reporters, went to the hospital where Calpito was by then in the operating room. The police officers interviewed Adjaro and Gosil at the hospital's emergency room and then repaired to the crime scene and searched the area. Recovered near the flowering plants beside the electric post was a "stainless knife" 7 with bloodstains on its blade Adjaro recognized the knife to be the one used in stabbing Calpito. SPO4 Gerardo Tumbaga prepared Form 1 of the National Crime Reporting System indicating that accused-appellants were arrested and that a certain Mendoza escaped and went into hiding. The report also disclosed that Adjaro and Gosil had a drinking spree with the victim at the Genesis Folkden before the stabbing incident. SPO4 Tumbaga based his findings on the documents attached to the records of the case. That same evening of 20 October 1994, at 8:55, Calpito died at the Baguio General Hospital. Dr. Kathryna Ayro, the hospital's medico-legal officer, conducted the autopsy on the victim upon the request of Dr. Samuel Cosme, the attending surgeon, and of First Assistant City Prosecutor Herminio Carbonell, with the consent of a brother of Calpito. 8 Dr. Ayro found a solitary stab wound that penetrated Calpito's left thoracic cavity at the level of the 5th

intercostal space that caused a "through and through" laceration of his anterior pericardium and the apex of the left ventricle of his heart. 9 Dr. Ayro indicated the cause of Calpito's death as being one of hypovolemic shock secondary to stab wound. 10 She opined that a knife, single or double bladed, must have been used in inflicting the stab wound. Abrasions were also found on different parts of Calpito's body. Precy Calpito, the mother of the victim, testified that the family had spent the amount of P37,500.00 11 for his wake, burial and 9-day prayers. Her youngest son's death left her losing hope in life and "feeling very badly." The defense gave no alibi and admitted the presence of accused-appellants at the vicinity of the crime scene; however, it interposed denial by appellants of any participation in the commission of the crime. Appellant Emilio Senoto, Jr., a taxicab driver, testified that out of curiosity, after parking his cab to buy some cigarettes and getting attracted by the commotion, went near the scene and saw the victim lying on the ground beside a cart. He was about to leave the place when several policemen arrived and arrested him. Appellant Salvador Quitlong, a food vendor at the Burnham Park and father of five children, denied having had any participation in the stabbing incident nor having been acquainted with Jesus Mendoza. He admitted, however, that on the night in question when he was selling "fishballs" at the park, around eighty meters away from where Mendoza was selling his wares, the latter's daughter, who was a classmate of his own daughter, asked for help yelling that her father was in trouble. He rushed over to Mendoza's place (puesto) but barely in time to witness the stabbing of Calpito by Mendoza. Appellant Ronnie Quitlong, Salvador Quitlong's 26-year-old younger brother, was also a sidewalk vendor at the waiting shed along Harrison Road. He learned of the trouble Mendoza got himself into when the latter's daughter summoned for help. When he and his brother responded, Mendoza had by then already stabbed Calpito. Nonita de los Reyes and Lydia Cultura, both sidewalk vendors, corroborated the story of the Quitlong brothers. According to Nonita, it was Mendoza who stabbed Calpito. She witnessed the incident from a distance of ten meters away. Nonita explained that she did not immediately reveal what she saw to the authorities because of shock. Lydia Cultura, on her part, said that she saw Jesus Mendoza in the "rumble" with five or six men who had come from the Genesis Folkden. She saw Mendoza embrace and stab the man in white t-shirt. Nonita and Alma Balubar followed appellants to the police station but did not tell the police what she knew because she was busy attending to the crying pregnant wife of appellant Ronnie Quitlong. On 21 April 1995, the trial court, following his evaluation of the respective submissions of the prosecution and the defense, including their rebuttal and sur-rebuttal evidence, rendered its now assailed decision. In their assignment of errors, the Quitlong brothers would have it 1. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or without jurisdiction in finding that conspiracy may readily be inferred inspite of explicit failure to allege in the information or complaint; 2. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or without jurisdiction in finding that there was conspiracy between and among the accused-appellants in the commission of the crime; 3. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or without jurisdiction in finding the accused-appellants guilty of the crime of Murder instead of Homicide. 12

In his case, appellant Senoto contends that the trial court has erred in finding conspiracy among the accused and argues that the crime committed is homicide, not murder, given the circumstances. On the particular issue of conspiracy, the trial court had this to say: The question is whether or not the herein three accused participated in, and may be held guilty as co-principals by reason of conspiracy for, the fatal stabbing of the victim, Calpito, there being no dispute that the latter died due to the solitary stab inflicted on him. But before proceeding any further, the Court takes notice of the lapse committed, perhaps inadvertently, by the prosecution in drafting the indictment. Both the original and amended Informations fail to explicitly allege conspiracy. This could have been timely cured if obeisance had been observed of the admonition, often given, that the prosecution should not take the arraignment stage for granted but, instead, treat the notice thereof as a reminder to review the case and determine if the complaint or information is in due form and the allegations therein contained are sufficient vis-vis the law involved and the evidence on hand. It is fortunate that in the case at bench conspiracy may readily be inferred from the way the allegation of abuse of superior strength has been phrased, to wit: ". . . the above-named accused, being then armed with a knife, with intent to kill . . . and taking advantage of their numerical superiority and combined strength did then and there willfully, unlawfully and feloniously attack assault and stab JONATHAN CALPITO y CASTRO . . . ." 13 Citing Balmadrid vs. Sandiganbayan, 14 the trial court has opined that "conspiracy may be deemed adequately alleged if the averments in the Information logically convey that several persons (have been) animated with the single purpose of committing the offense charged and that they (have) acted in concert in pursuance of that purpose." 15 Holding that no direct proof is essential and that it suffices that the existence of a common design to commit the offense charged is shown by the acts of the malefactors and attendant circumstances, the trial court has concluded: In the case on hand, it bears repeating that Ronnie Quitlong and Salvador Quitlong were admittedly responding to Jesus Mendoza's call for help through the latter's daughter. They must have, therefore, been disposed, out of empathy with a fellow sidewalk vendor, to lend Mendoza all the assistance the latter needed under the circumstances. They were joined, according to prosecution witnesses Lito Adjaro and Herbert Soriano, by no less than six others, including Emilio Senoto, Jr. They came upon Mendoza engaged in a heated altercation with the victim Calpito. When they reached Calpito, they pushed him and started beating him up and his companion Jonathan Gosil. Four to five men manhandled Calpito who kept on retreating and even went around Soriano's parked jeep until he was cornered. Senoto then held Calpito's body from behind; Ronnie, his left hand; and Salvador, his right hand, and they mauled him. Calpito struggled to free himself but that proved futile and, instead, Ronnie stabbed him once. It was only then that he was released and when he fell down on his back, his attackers still kicked him. Only the arrival of some policemen made some of the assailants stop and run away. However, Ronnie, Salvador and Senoto, kept on kicking the victim and they were restrained and arrested. Guided by the jurisprudential authorities heretofore cited, it becomes ineluctable for the Court to conclude that Ronnie, Salvador and Senoto acted in a conspiracy and may thus be held liable as co-principals for the death of Calpito. 16

Overwhelming, such as it may have been thought of by the trial court, evidence of conspiracy is not enough for an accused to bear and to respond to all its grave legal consequences; it is equally essential that such accused has been apprised when the charge is made conformably with prevailing substantive and procedural requirements. Article III, Section 14, of the 1987 Constitution, in particular, mandates that no person shall be held answerable for a criminal offense without due process of law and that in all criminal prosecutions the accused shall first be informed of the nature and cause of the accusation against him. 17 The right to be informed of any such indictment is likewise explicit in procedural rules. 18 The practice and object of informing an accused in writing of the charges against him has been explained as early as the 1904 decision of the Court in U.S. vs. Karelsen; 19 viz: First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. (United States vs. Cruikshank, 92 U.S., 542). In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. An information, in order to ensure that the constitutional right of the accused to be informed of the nature and cause of his accusation is not violated, must state the name of the accused; the designation given to the offense by the statute; a statement of the acts or omissions so complained of as constituting the offense; the name of the offended party; the approximate time and date of the commission of the offense; and the place where the offense has been committed. 20 In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others. 21 Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well. A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of the facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them." 22 The information charging herein appellants for the death of Jonathan Calpito, as amended, has but simply stated:

That on or about the 20th day of October 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with a knife, with intent to kill and with treachery and taking advantage of their numerical superiority and combined strength, did then and there willfully, unlawfully and feloniously attack, assault and stab JONATHAN CALPITO Y CASTRO suddenly and unexpectedly, without any warning whatsoever, inflicting upon him a stab wound at the left thorax at the level of the 7th rib, left medclavicular line, penetrating the pereduum and left ventricle causing left remothones of 700 cc and hemoperecuduum of 250 cc, which directly caused his death. CONTRARY TO LAW. 23

PROSECUTOR: Q. Now, you pointed to Emilio Senoto, Jr. as one of the persons who held the deceased Jonathan Calpito. What part of the body of Jonathan Calpito did he hold? A. His body, sir. Q. How about Salvador Quitlong whom you also identified in Court. What part of the body of Jonathan Calpito did he hold? A. I saw him hold his hand.

The opinion of the trial court to the effect that conspiracy may be inferred from the allegation of abuse of superior strength and with the aid of armed men, i.e., that ". . . the above-named accused, being then armed with a knife, with intent to kill . . . and taking advantage of their numerical superiority and combined strength, did then and there willfully, unlawfully and feloniously attack, assault and stab JONATHAN CALPITO Y CASTRO . . . " 24 is difficult to accept. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. 25 Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words "conspired" or "confederated" or the phrase "acting in conspiracy," must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. In the absence of conspiracy, so averred and proved as heretofore explained, an accused can only be made liable for the acts committed by him alone and this criminal responsibility is individual and not collective. 26 And so it is that must be so held in this case. The conflicting claims of the prosecution and the defense on who stabbed the victim is an issue that ultimately and unavoidably goes into the question of whom to believe among the witnesses. This issue of credibility requires a determination that is concededly best left to the trial court with its unique position of having been enabled to observe that elusive and incommunicable evidence of the deportment of witnesses on the stand. 27 Findings of the trial court, following that assessment, must be given the highest degree of respect absent compelling reasons to conclude otherwise. 28 The Court is not, at this time and in this instance, disposed to deviate from the foregoing rule. In the first place, Lito Adjaro, the eyewitness in the stabbing of Calpito, has steadfastly stood by, even on rebuttal, to his story on the commission of the crime. A witness who testifies in a categorical, straightforward and spontaneous manner, as well as remains consistent on cross and rebuttal examination, is not likely to be an incredible witness. 29 Secondly, the defense has failed to establish any ill motive on the part of Adjaro that would have prompted him to testify wrongly against appellants. Where there is no evidence to indicate that the prosecution witness has been actuated by any improper motive, it would be hard to reject the supposition that a person will not prevaricate and cause damnation to one who has brought him no harm. 30 Finally, Herbert Soriano and the police, who have testified seeing the already wounded Calpito lying on the ground and still being attacked, both corroborate Adjaro's positive identification of appellants as the persons who did maul Calpito. After positively pointing to appellants in open court to be the persons who ganged up on Calpito, Adjaro testified on their respective participations in the commission of the crime; thus:

Q. What hand was held by Salvador Quitlong? A. Right hand, sir. Q. How about Ronnie Quitlong? A. His left hand. Q. After Jonathan Calpito was held by these three persons and other, what happened next? A. They mauled ("binugbog") Jonathan Calpito. Q. Did you notice what part of the body was hit and boxed by these three persons? A. His body and his face. Q. What did Jonathan Calpito do, if any, when he is being held by these three persons and others? A. He was struggling, sir. Q. Was he able to free himself from the helds (sic) of these persons? A. No more, sir. Q. What do you mean no more? A. He was not able to free himself. Q. Yes, why was he not able to free himself anymore? A. They held him tightly, he could not struggle. Q. And what happened next when you said he could no longer struggle?

A. They boxed him and also stabbed him, sir. Q. Did you see the person who stabbed him? A. I saw, sir. Q. Will you be able to identify him? A. Yes, sir. Q. I will request you to again look inside the courtroom and point to the person whom you saw stab Jonathan Calpito? WITNESS: The person wearing white jacket. INTERPRETER: Witness pointing to a gentleman inside the courtroom wearing cream jacket who gave his name as Ronnie Quitlong. 31 Appellant Ronnie Quitlong was a principal by his own act of stabbing Calpito that caused the latter's death. 32Appellants Salvador Quitlong and Emilio Senoto, Jr., were holding the hands of Calpito at the precise time that Ronnie Quitlong was in the act of executing his criminal intent. Simultaneity, however, would not itself demonstrate the concurrence of will or the unity of action and purpose that could be a basis for collective responsibility of two or more individuals; 33indeed, from all indications, the incident would appear to have occurred at the spur of moment. Appellants Salvador Quitlong and Emilio Senoto, Jr., shall therefore be held to be mere accomplices conformably with Article 18 34 of the Revised Penal Code. The crime committed was qualified by abuse of superiority. 35 While superiority in number would not per se mean superiority in strength, enough proof was adduced, however, to show that the attackers had cooperated in such a way as to secure advantage of their superiority in strength certainly out of proportion to the means of defense available to the person attacked. 36 Treachery may not be here considered as a generic aggravating circumstance although it might have ensured the commission of the crime. In order that treachery may be taken as an aggravating circumstance, there must be proof that the accused has consciously adopted a mode of attack to facilitate the perpetration of the killing without risk to himself, i.e., appellant Ronnie Quitlong in this case. 37 No such proof has been adequately shown. Under Article 248 of the Revised Penal Code, the crime of murder is punishable by reclusion temporal maximum to death. There being neither aggravating nor mitigating circumstances to appropriately appreciate in this case, appellant Ronnie Quitlong, as principal, shall suffer the penalty of reclusion perpetua. The indeterminate penalty of twenty (20) years of reclusion temporal, as minimum to forty (40) years of reclusion perpetua, as maximum, has been imposed by the trial court on the premise that reclusion perpetua is a divisible penalty. In the Court's Resolution of 09 January 1995, clarifying its decision 38 in People vs. Lucas, 39 the Court has said that . . . although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty. 40

The two accomplices, appellants Salvador Quitlong and Emilio Senoto, Jr., shall be subject to the imposition of the penalty next lower in degree than reclusion temporal maximum to death or, accordingly, prision mayor in its maximum period to reclusion temporal in its medium period. Absent any mitigating or aggravating circumstance, the penalty that may be imposed is reclusion temporal minimum. Applying the Indeterminate Sentence Law to them, each may be held to suffer the indeterminate sentence of anywhere from prision correccional in its maximum period to prision mayor in its medium period, as the minimum penalty, to anywhere within the range of reclusion temporal minimum, as the maximum penalty. The trial court correctly imposed the payment of a civil indemnity of P50,000.00 in favor of the heirs of the victim. The consequential (actual) damages in the amount of P35,700.00 not having been substantiated, except for the amount P12,000.00 paid to the memorial chapel, is disallowed. The award of moral damages recoverable under Article 2219 (1), in relation to Article 2206, of the Civil Code is reduced from P100,000.00 to P20,000.00. WHEREFORE, appellant Ronnie Quitlong is found guilty of the crime of murder for the killing of Jonathan Calpito and sentenced to suffer the penalty of reclusion perpetua and further ordered to indemnify the heirs of the victim in the amount of P50,000.00, to reimburse them the actual damages of P12,000.00 and to pay moral damages of P50,000.00. Appellants Salvador Quitlong and Emilio Senoto, Jr., are found guilty as accomplices in the commission of the crime, and each shall suffer the indeterminate sentence of nine (9) years and four (4) months ofprision mayor minimum period, as minimum penalty, to thirteen (13) years and nine (9) months and ten (10) days of reclusion temporal minimum period, as maximum penalty. Appellants Salvador Quitlong and Emilio Senoto, Jr., are also hereby held solidarily liable with appellant Ronnie Quitlong in the payment of the damages hereinabove mentioned. Costs against appellants. Let a copy of this Decision be furnished the Philippine National Police and the Department of Justice in order that the other participants in the killing of Jonathan Calpito, specifically Jesus Mendoza, be arrested and made to face the force of the law. G.R. No. 74145 June 17, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZOSIMO CRISOLOGO, alias "AMANG", defendant-appellant. PADILLA, J.: Appeal from a decision of the Court of First Instance of Davao del Sur in Criminal Case No. 92 (76) convicting the defendant of robbery with homicide, sentencing him to the death penalty, and ordering him to indemnity the heirs of Martin Francisco the sums of P35,000.00 for loss of life, P25,000.00 for funeral expenses, P30,000.00 for loss of earnings and P20,000.00 for moral damages. On 5 May 1976, a criminal complaint was filed by the Station Commander with the Municipal Court of Magsaysay, Davao del Sur against the accused Zosimo Crisologo alias "Amang," a deaf-mute, for robbery and homicide alleged to have been committed on 1 May 1976 between ten to eleven o'clock in the evening in Calamagoy, Poblacion Magsaysay, Davao del Sur. The following information was subsequently filed by the Provincial Fiscal against the accused on 16 September 1977: That on or about the 1st day of May, 1976, in the Municipality of Magsaysay, Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with violence against and intimidation upon persons, and with intent of gain, did then and there wilfully, unlawfully and feloniously rob Martin Francisco of one (1) "Seiko 5 Actus" wrist watch valued at Four Hundred (P400.00) Pesos and a two battery flashlight valued at Thirty (P30.00) Pesos in the total amount of Four Hundred Thirty (P430.00) Pesos, to the damage and prejudice of the said owner in

the amount aforesaid and on the same occasion, the above-named accused, with intent to kill wilfully, unlawfully and feloniously attack[ed] and stab[bed] the said Martin Francisco with the same bladed weapon, thereby inflicting upon him wounds which caused his death. CONTRARY TO circumstance of: LAW with the aggravating

and to be informed of the nature and cause of the accusation against him 2 in the proceedings where his life and liberty were at stake. In Terry v. State, 3 where a deaf-mute accused of manslaughter was not provided with an interpreter despite repeated requests from counsel, it was held: ... The Constitution of this state expressly provides that an accused has a right to be heard by himself and counsel, also, to demand the nature and cause of the accusation; against him, and, further to be confronted by the witnesses, who are to testify against him. In constructing this constitutional provision it needs no discussion in deciding that all this must be done in a manner by which the accused can know, the nature and the cause of the accusation he is called upon to answer, and all necessary means must be provided, and the law so contemplates, that the accused must not only beconfronted by the witnesses against him, but he must be accorded all necessary means to know and understand the testimony given by said witnesses, and must be placed in a condition where he can make his plea rebut such testimony, and give his own version of the transaction upon which the accusation is based. This the fundamental law accords, and for this the law must provide. These humane provisions must not, and cannot, be dependent upon the ability, financial or otherwise, of the accused ... [This] constitutional right ... would be meaningless and a vain and useless provision unless the testimony of the witnesses against him could be understood by the accused. Mere confrontation of the witnesses would be useless, bordering upon the farcical, if the accused could not hear or understand their testimony. So, also, as to the nature and cause of the accusation. In the absence of an interpreter it would be a physical impossibility for the accused, a deaf-mute, to know or to understand the nature and cause of the accusation against him, and, as here, he could only stand by helplessly, take his medicine, or whatever may be coming to him, without knowing or understanding, and all this in the teeth of the mandatory constitutional rights which apply to an unfortunate afflicted deafmute, just as it does to every person accused of a violation of the criminal law. In other words the physical infirmity of this appellant can in no sense lessen his rights under the Constitution, and, in the proper administration of its laws, this great and sovereign state must and will accord the means by which its citizens, humble and afflicted though they may be, shall receive all the rights, benefits and privileges which the Constitution, laws, regulations, and rules of practice provide.4 The basic constitutional infirmity alone in the conduct of the case against the accused is, in our candid assessment, fatal to the judgment of conviction meted out against him. Aside from the unfair setting and circumstance in which the accused was convicted, insufficiency of evidence to warrant a finding of guilty beyond reasonable doubt also leads this Court to set aside the conviction. The following events and circumstances are relevant in this regard: On 1 May 1976, at past eight o'clock in the evening, the accused and the deceased were last seen walking away together from a sari-sari store where they had been drinking tuba steadily in apparent harmony. At around eleven thirty of the same evening, the accused suddenly appeared in the house of Wilson Evangelists, who was then with relatives butchering a pig for the baptism of his child the following day. The accused was panting and trembling, and told Wilson Evangelista in sign language that he had come from Calamagoy, at the side of the canal, where there were persons fighting on the road. Evangelista later testified that he noticed the accused wearing a fatigue shirt with a blood-stain on it, and carrying a flashlight. On 2 May 1976, Patrolman Reynaldo Pinto, Jr., was told to investigate a case of robbery with homicide with the deceased Martin Francisco as victim, and

(a) disregard of the respect due the offended party on account of his age; and (b) night time. Digos, Davao del Sur, Philippines, September 15, 1977. On 12 December 1977, arraignment was set. The accused was allegedly informed of the charge against him through sign language by Special Policeman Alejandro Munoz a childhood acquaintance. Mr. Munoz subsequently entered a plea of guilty on behalf of the accused. Upon objection of counsel, however, this plea was disregarded and arraignment was rescheduled until such time as the Court could avail of the services of an expert in the sign language from the school of the deaf and dumb. On 26 June 1979 the Court through another presiding judge, upon insistent plea of defense counsel for a sign language expert to assist the accused, again reset arraignment as no expert in sign language was available. The School for the Deaf and Dumb in Pasay City was sent a copy of the court order to enable it to furnish the court with an expert in sign language. No such expert was made available. On 9 November 1982, or after five years from the date of filing of the information, and order through still another presiding judge was entered directing that a representative of the School of the Deaf and Dumb in Bago Gallera, Talomo District, Davao City be availed of to enable the accused to intelligently express his understanding of a plea of guilty or not guilty. Apparently no sign language expert or representative ever arrived. On 6 April 1983, the accused through a counsel de oficio waived the reading of the information and pleaded not guilty. Trial proceeded without any evidence being presented on his part. Finally, on 10 February 1986, without the services of an expert in sign language ever being utilized at any stage of the proceedings, the accused was found guilty beyond reasonable doubt of robbery with homicide and sentenced to die by electrocution. Executive clemency was recommended, however, in view of the accused's infirmity and his nearly ten-year detention as a suspect. Counsel for the accused and the Solicitor-General now ask for the reversal of the judgment of conviction due to the failure of the trial court to safeguard the accused's right to due process of law and the insufficiency of the purely circumstantial evidence presented to overcome the constitutional presumption of innocence in favor of the accused. We find their position to be well-taken. The absence of an interpreter in sign language who could have conveyed to the accused, a deaf-mute, the full facts of the offense with which he was charged and who could also have communicated the accused's own version of the circumstances which led to his implication in the crime, deprived the accused of a full and fair trial and a reasonable opportunity to defend himself. Not even the accused's final plea of not guilty can excuse these inherently unjust circumstances. The absence of a qualified interpreter in sign language and of any other means, whether in writing or otherwise, to inform the accused of the charges against him denied the accused his fundamental right to due process of law. 1The accuracy and fairness of the factual process by which the guilt or innocence of the accused was determined was not safeguarded. The accused could not be said to have enjoyed the right to be heard by himself and counsel,

to arrest the accused on the basis of Wilson Evangelista's statement that he saw the accused with a bloodstained shirt the previous evening when the crime could conceivably have occurred. Patrolman Pinto did so that very day. Several days later, he was also able to recover the deceased's wristwatch and flashlight from the house of the accused's father allegedly through the assistance of the accused himself. Upon being asked who killed the deceased, the accused allegedly admitted to Pat. Pinto in sign language that it was he by making gestures which Pat. Pinto interpreted to mean that the accused had been stoned by the deceased, thus impelling the accused to stab the latter. This confession, however, was not included in Pat. Pinto's affidavit as he allegedly forgot to tell the investigator. He also acknowledge his failure to notify the accused of his right to counsel before interrogation and investigation due to difficulty in conveying the matter by sign language. Based on the above circumstances and evidence, the trial court found the accused guilty beyond reasonable doubt of the crime charged, reasoning as follows: The prosecution proved and which this Court finds that the accused was the last person to be seen with the deceased, and that he was drunk when he left the store of prosecution witness Salome del Socorro together with the deceased. The Court also finds that the accused's clothes had bloodstain on it when he went to the house of prosecution witness Wilson Evangelista at 11:30 in the evening of May 1, 1976, the night when the deceased was robbed and killed. The seiko 5 actus wrist watch and the flashlight colored red and white both belonging to the deceased Martin Francisco were recovered from the possession of the accused and which recovery was done with his help, The unexplained possession by the accused of the properties belonging to the deceased proved that he took these things unlawfully. The fifteen (15) stab wounds which were inflicted on the deceased, many of which were fatal wounds proved that a much younger [man] than the deceased could have inflicted the same. In the case at bar, the accused is very much younger than the deceased who was 63 years old at the time of his death, ... frail and without physical attributes, unlike the accused who looks healthy, robust and young ... While it is true that Pat. Pinto and his companion were able to get a statement from the accused without telling him in advance of his constitutional rights, due to difficulty in explaining them in sign language, the accused's statement by sign language was coupled with his voluntary help in recovering the things belonging to the deceased. Furthermore, the court considered and took note of the plea of guilty which was entered into by the accused on his first arraignment by sign language through Mr. Alejandro Munoz who is an associate of the accused in their younger days. (Emphasis supplied.) We find the trial court's decision essentially lacking in that degree of certainty in reason and conscience which is necessary to establish guilt beyond reasonable doubt. As held in U.S. v. Lasada, 5 "By reasonable doubt is not meant that which of possibility may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required, and this. certainty is required as to every proposition of proof requisite to constitute the offense." 6 Facts must be presented methodically and meticulously, contradictions must be clarified, and gaps and loopholes in the evidence must be adequately explained "to the end that the court's mind may not be tortured by doubts, the innocent [not] suffer and the guilty [go] unpunished." 7 Such standards, we believe, have not been met in this case.

Patrolman Pinto, the interrogator to whom the accused allegedly confessed the details which led to a presumption that lie killed the deceased, expressly admitted that he could have misinterpreted the gestures made by the accused as he had only a slight knowledge of sign language. Furthermore, the same witness did not give fully credible replies when questioned about the possibility that he was ordered to proceed to the house of accused's father to get the incriminating watch and flashlight which were delivered there earlier by a certain Nicolas. The bloodstain on the accused's shirt could conceivably have come also from the fighting that the accused told Wilson Evangelista he had witnessed. Considering that the deceased sustained fifteen (15) stab wounds, twelve (12) of which could have separately caused death, according to the medical officer who examined the body of the deceased, the presence of a single bloodstain on the front of accused's shirt hardly supports the conclusion reached by the trial court, especially when related to the high degree of intoxication appreciated against the accused. As testified to by the medical officer who, as stated, examined the body of the deceased, the stab wounds could also have been inflicted by several assailants using different weapons. That the accused looked much more robust than the deceased and thus could have committed the crime does not by itself deserve the weight and consideration that the trial court gave to it. Furthermore, the rubber slippers and eyeglasses found near the scene of the crime were never Identified or explained. The trial court's appreciation of the plea of guilty earlier entered for the accused by Special Policeman Alejandro Munoz, which the first presiding judge earlier discarded, is regrettable, to say the least, especially when considered with the admittedly limited knowledge in sign language on the part of Pat. Munoz and in relation to the investigator's own admission that the accused was never informed of his right to counsel. 8 WHEREFORE, the appealed decision is hereby reversed. The accused is acquitted, on the ground that his guilt has not been proved beyond reasonable doubt. The Court hereby orders his immediate release from confinement, unless he is legally detained for some other cause or offense. PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES, JR., y FLORES ALIAS PESIONG, accused-appellant. DECISION CARPIO-MORALES, J.: An assault on sexual innocence can open a floodgate of emotions. This Court, however, cannot allow emotions to drown an accuseds right to be informed of the nature and cause of the accusation against him. For automatic review before this Court is the Joint Decision of the Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding accused-appellant Pedro Flores Jr. y Flores alias Pesiong guilty of two counts of rape of his then 11 year old daughter and sentencing him to suffer the penalty of death in each. The complaints against accused-appellant filed on February 3, 1997 read as follows: Criminal Case No. U-9184: CRIMINAL COMPLAINT[1] The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of RAPE, committed as follows: That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES Y LAZO, 11 years old, all against her will.

x x x (Emphasis supplied). Criminal Case No. U-9185: CRIMINAL COMPLAINT[2] The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS PESYONG, committed as follows:

was sucking her breast. Filipina felt accused-appellants semen drop into her private organ where she noticed the presence of blood and a bit of whitish substance. Accused-appellant later wiped her vagina with a towel. The following morning, private complainant again reported the matter to her grandaunt Norielyn,[17] and to her playmate Carla Salvador.[18] On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle driver-neighbor, reported the matter to the Philippine National Police of Urdaneta where she gave a statement. On the same day, she, still accompanied by Norielyn, submitted herself to a medical examination at the Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are contained in a medical certificate[19] showing the following: (-) Negative menarche - Multiple deep healed lacerations all over the labia majora. - Admits examining finger with ease. - (+) sticky whitish discharge.

That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent and by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein accused with the use of sharp pointed bladed weapon and all against her will. x x x (Emphasis supplied). Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both charges.[3] Culled from the records of the case are the following facts established by the prosecution: On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old at the time, and her younger sister Catherine were left to the care of their father, herein accused-appellant, at their family residence in Sitio Buenlag, Barangay Nancamaliran West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having departed for Singapore to work as an overseas contract worker.

Dr. Jeanna B. Nebril, the examining physician, found the presence of deep healed lacerations all over the labia majora[20] which deep -healed lacerations connote, according to the doctor, the application of force, possibly two weeks before the examination. Denying the accusations, accused-appellant claimed as follows: Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending school on the 6th, 7th and 8th of December that year and for having received money from her classmate,[21] was not in their house on the night of December 9, 1996 because she was in the house of Norielyn. Neither was she in their house on the night of December 28, 1996 as she was at the house of his mother Margarita Flores[22] in Cafloresan. Accused-appellants testimony was corroborated by his mother Margarita, and his teenaged children Benito and Baby Jean Flores who were staying in his mothers house. It was also corroborated by another teenaged child, Jocelyn Flores, who was staying in the house of accused-appellants mother-in-law, Lourdes Lazo, also in Barangay Nancamaliran West.[23] Jocelyn added that Filipina had intimated to her that she fabricated the rape charges because their maternal grandmother Lourdes wanted their father, accused-appellant, jailed as he begrudged him for having eloped with their mother,[24] and that Lourdes threatened her with abandonment or detention in jail in case she defied, and promised to give her jewelry, shoes and dress if she agreed to carry out her desire. After trial, the court a quo found accused-appellant guilty of Statutory Rape and sentenced her to death in both cases in its April 7, 1997 Joint Decision, the dispositive portion of which reads: WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the crime of Statutory Rape, an offense defined and penalized under paragraph 3, Article 335, of the Revised Penal Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as follows:

After partaking of supper on the night of December 9, 1996,[4] accusedappellant asked Filipina to accompany him to the comfort room situated outside their house,[5] claiming that he was afraid of ghosts.[6] Albeit Filipina did not believe[7] him, she acquiesced because her mother had told her to always obey her father.[8]

When accused-appellant came out of the comfort room, he ordered Filipina to remove her short pants, threatening her with death if she disobeyed,[9] and made her lie down.[10] He then removed his short pants and brief and, against her will, he inserted his finger and later his penis into Filipinas vagina[11] where she later felt hot fluid.[12] Accused-appellant thereafter wiped Filipinas vagina and his hand, threatened to kill her if she reported what he did, directed her to put on her shorts, and they both went home. The following morning, Filipina reported the incident to her Inang Lorie whose full name is Norielyn Antonio, the aunt of her mother, who told her that if her father would sexually assault her again, he would have him detained. Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their house, she was awakened when accused-appellant touched her right foot.[13] Armed with a knife[14], accused-appellant told her not to talk[15] and ordered her to remove her short pants and panty. She complied. Accused-appellant thereupon removed his short pants and brief and went on top of her chest during which she tried to push him away but failed. Accused-appellant then inserted his finger into Filipinas vagina for some time,[16] wiped his hands, and then inserted his penis for a long time as he

CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs.

CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs.

code.[31] Thus, to sustain a conviction, the complaint or information must allege that the accused had carnal knowledge of or sexual intercourse with the private complainant. In the criminal complaints at bar, however, no such allegation was made. The allegation that accused-appellant did sexually abuse Filipina does not suffice. In the recent case of People v. Lito Egan alias Akiao[32], this Court ruled that although the prosecution has proved that [the therein private complainant] Lenie was sexually abused, the evidence proffered is inadequate to establish carnal knowledge.[33] Hence, sexual abuse cannot be equated with carnal knowledge or sexual intercourse.[34] The allegation in the instant criminal complaints that accused-appellant sexually abuse[d] the private complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private complainant. This Court is not unaware of the rule in case there is a variance between allegation and proof as etched in Section 4 of Rule 120 of the Revised Rules of Criminal Procedure which reads: SEC. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.[35] The case at bar, however, is not one of variance between allegation and proof. The recital of facts in the criminal complaints simply does not properly charge rape, sexual abuse not being an essential element or ingredient thereof.

Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court of the Philippines for automatic review of this Decision.

In view of the penalty of death imposed by the court a quo, the case is now before this Court on automatic review. Accused-appellant assigns as errors the following:

I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD BE ACQUITTED. II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE ACCUSED-APPELLANT THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT WOULD HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT. It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.[25] It is at once apparent, from a reading of the above-quoted complaints, that accused-appellant was denied the constitutional right to be informed of the nature and cause of the accusation against him. This right has the following objectives: [26] 1. To furnish the accused with such a description of the charge against him as will enable him to make the defense;2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause;3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. The right cannot be waived for reasons of public policy.[27] Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed.[28] For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information.[29] The court a quo found accused-appellant guilty of Statutory Rape under Article 335[30] of the Revised Penal Code, as amended by R. A. No. 7659 (which restored the death penalty for heinous crimes effective December 31, 1993) which provides: Article 335. When and how rape is committed.--- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation;2. reason or otherwise unconscious; and3. years of age or is demented. When the woman is deprived of When the woman is under twelve

Neither can accused-appellant be convicted of acts of lasciviousness or of any offense for that matter under our penal laws. It is settled that what characterizes the charge is the actual recital of facts [36] in the complaint or information. For every crime is made up of certain acts and intent which must be set forth in the complaint or information with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In other words, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged[37], the accused being presumed to have no independent knowledge of the facts that constitute the offense.[38]

And even under the provisions of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act),[39] accused-appellant cannot be held liable. Section 5 of said Act provides: SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute;(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;(3) Taking advantage of influence or relationship to procure a child as a prostitute;(4) Threatening or using violence towards a child to engage him as a prostitute; or(5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution.

The gravamen of the crime of rape is carnal knowledge or sexual intercourse between a man and a woman under the circumstances enumerated in the penal

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised Penal Code, as amended by Act No. 3815, for rape or lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. (Emphasis and underscoring supplied). Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases[40], issued pursuant to Section 32 of Republic Act No. 7610, defines sexual abuse by inclusion as follows: Sexual abuse includes 1) the employment, use, persuasion, enticement, or coercion of a child to engage in, or assist another person to engage in sexual intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest with children. (Underscoring supplied) From this broad, non-exclusive definition, this Court finds that the phrase sexually abuse in the criminal complaints at bar does not comply with the requirement that the complaint must contain a specific averment of every fact necessary to constitute the crime. Notably, the phrase sexual abuse is not used under R.A. No. 7610 as an elemental fact but as an altogether separate offense. Above-quoted Section 5 thereof enumerates the punishable acts that must be alleged in the complaint or information to hold an accused liable, none of which is reflected in the complaints at bar charging accused-appellant. The case of People v. Cruz [41] is instructive. There the information in Criminal Case No. 15368-R read: That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW. (Emphasis supplied)

15368-R is therefore void for being violative of the accused-appellants constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. (Emphasis & underscoring supplied) As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused the therein private complainant by either raping or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts. Nothing less can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellants constitutional right to be informed of the nature and cause of the accusation against him. This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and information. For all efforts may be rendered futile and justice may be denied by a failure to state the acts or omissions complained of as constituting the offense as exemplified by the present case. The foregoing disquisition leaves it unnecessary to dwell on accusedappellants assigned errors or of other errors including failure to allege relationship in the first complaint, and lack of proof of minority in both cases. WHEREFORE, the informations in Criminal Case Nos. U-9184 and U-9185 are hereby declared null and void for being violative of the constitutional right of accused-appellant Pedro Flores, Jr. y Flores alias Pesiong, for Rape to be informed of the nature and cause of the accusation against him. Hence, the cases against him are hereby DISMISSED. The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within 10 days from notice.Costs de oficio. RIGHT TO SPEEDY TRIAL G.R. No. L-62810 July 25, 1983 EULALIA MARTIN, petitioner, vs. GEN. FABIAN VER, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES and GEN. HAMILTON DIMAYA, JUDGE ADVOCATE GENERAL, respondents. Arturo V. Romero for petitioner.

Finding the above-quoted information void, this Court held: The Solicitor General for respondents. The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), either by raping her or committing acts of lasciviousness. It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: Designation of the offense.The complaint or information shall state the designation of the offense given by the statue, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. The allegation in the information that accused-appellant willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No.

PLANA, J.: This is a petition for habeas corpus filed by Eulalia Martin on behalf of her husband, Pvt. Francisco Martin. Pvt. Martin was an enlisted man in the Philippine Army. On or about April 14, 1981, when he was still in the service, he allegedly sold two grenades to one Rogelio Cruz at P50.00 each, one of which exploded during a picnic in Laoag City on April 17, 1981 causing the death of three persons, including Rogelio Cruz, and injuries to three others. According to respondents, Pvt. Martin has admitted to Cpl. Lucio Tuppal, Philippine Army, having sold the grenades to Rogelio Cruz in Laoag City, although this is denied by Pvt. Martin. After an initial investigation conducted by the Laoag City PC and INP authorities, a report was submitted to the Ministry of National Defense which referred the matter to the Chief of Staff, AFP, who in turn directed the Inspector General to conduct another investigation.

On May 5, 1981, Pvt. Martin was arrested and confined (restricted to barracks) at Fort Bonifacio pursuant to Article 70 of the Articles of War, infra. The following year, he was discharged from the service effective as of May 5, 1982. On November 17, 1982 the instant petition was filed. The following month, i.e., December 3, 1982, Pvt. Martin was charged for violation of the 85th and 97th Articles of War, which read: ART. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers.Any soldier who sells or wrongfully disposes of or willfully or through neglect injures or losses any horse, arms, ammunition, accouterments, equipment, clothing, or other property issued for use in the military service, shall be punished as a court-martial may direct. ART. 97. General Article.Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline and all conduct of a nature to bring discredit upon the military service shall be taken cognizance of by a general or special or summary court-martial according to the nature and degree of the offense, and punished at the discretion of such court. The charge sheet stipulates the following charges: CHARGE I: Violation of the 85th Article of War. Specification: In that Private Martin assigned with the Headquarters and Headquarters Service Battalion, First Infantry Division, Philippine Army on or about 14 April 1981 at Laoag City wrongly disposed of by sale to Rogelio Cruz two (2) grenades. CHARGE II: Violation of the 97th Article of War. Specification: In that Private Francisco Martin, ... on or about the month of April 1981 at Laoag City, unlawfully and without authority had in his possession two (2) hand grenades thus committing an act prejudicial to good order and military discipline and of a nature that will bring discredit to the military establishment. The petitioner contends that having been discharged from the military service, he is no longer subject to court-martial even if the offenses of which he is charged were committed while he was still subject to military law. He therefore, concludes that his continued detention pursuant to Article 70 of the Articles of War (which authorizes the arrest/confinement of any person subject to military law who is charged with an offense under the Articles of War) is illegal and he, accordingly, should be released. This posture has no merit. Generally, court-martial jurisdiction over persons in the military service of the Philippines ceases upon discharge or other separation from such service. This however, is but a general rule. The Articles of War in terms prescribe some exceptions designed to enhance discipline and good order within the military organization. Thus, court-martial jurisdiction as to certain cases of fraud and misappropriation of military hardware and other government property is not extinguished by discharge or dismissal pursuant to the 95th Article of War. ART. 95. Frauds Against the Government.Any person subject to military law ... Who steals, embezzles, knowingly and willingly misappropriates, applies to his own use or benefit or wrongfully or knowingly sells or disposes of any ordnance, arms, equipment, ammunition, clothing, subsistence, stores, money, or other property of the Government furnished or intended for the military service thereof ...

Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a courtmartial may adjudge, or by any or all of said penalties. And if any person, being guilty of any of the offenses aforesaid while in the service of the Armed Forces of the Philippines or of the Philippine Constabulary receives his discharge or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a courtmartial in the same manner and to the same extent as if he had not received such discharge nor been dismissed . (Emphasis supplied.) It was on the basis of the foregoing legal provision, among others, that this Court sustained the court-martial of the petitioner in De la Cruz vs. Alcaraz, et al. after his reversion to inactive status, for misappropriation of public funds committed while he was still in the active military service. The Court, thru Mr. Justice J. B. L. Reyes, said: There is no question that although appellant had been reverted to inactive (civilian) status in the reserve force of the Philippine Army, he is still amenable to investigation and court-martial under the Artitles of War by the Philippine Navy for alleged acts of misappropriation of government funds committed while he was still in the active military service. As correctly held by the Court below, appellant's case falls within the provisions of Article 95 of the Articles of War (Commonwealth Act No. 408, as amended), which provides as follows: ... The lower Court did not, therefore, err in refusing to enjoin appellant's investigation by the naval authorities on charges that he had misappropriated public property while he was still in the service of the Philippine Navy, specially since petitioner admits that he is still a member of the Reserve Force." (99 Phil. 130 at 131132.). We conclude that despite his discharge from the military service, the petitioner is still subject to military law for the purpose of prosecuting him for illegal disposal of military property, and his preventive detention thereunder pending trial and punishment for the said offense committed when he was in the military service is lawful. Alternatively, petitioner maintains that even assuming that the jurisdiction of the military authorities to try and punish him was not abated by his discharge from military service, the denial to him of his constitutional right to speedy trial (he having been confined from the date of his arrest on May 5, 1981 up to December 3, 1982 when he was formally charged a period of I year and 7 months) entitles him to be released on habeas corpus. The fundamental rights guaranteed in the Constitution apply to all persons, including those subject to military law, (Aquino vs. Military Commission No. 2, 63 SCRA 546; Cayaga vs. Tangonan, 66 SCRA 216; Go vs. Olivas, 74 SCRA 230; Romero vs. Ponce Enrile, 75 SCRA 429.) To quote Ex Parte Milligan, 4 Wall. 2: The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances. It would indeed be parodoxical if military men who are called upon in times of the gravest national crises to lay down their lives in defense of peace and freedom would be the very people to be singled out for denial of the fundamental rights for which they risk their lives. For denial of a constitutional right to the accused, the hearing tribunal may lose its jurisdiction to conduct further proceedings. In such a case, habeas corpus would lie to obtain the release of the accused. (Gumabon vs. Director, 37 SCRA 420; Acevedo vs. Sarmiento, 36 SCRA 247; Aquino vs. Ponce Enrile, 59 SCRA 183; Flores vs. People, 61 SCRA 331; Dacuyan vs. Ramos,

85 SCRA 487, Ventura vs. People, 86 SCRA 188; Romero vs. Ponce Enrile, 75 SCRA 429; Aquino vs. Ponce Enrile, supra; Go vs. Olivas, supra.) In the case at bar, the petitioner claims that he has been denied his constitutional right of speedy trial because the charges against him were filed only about 1 year and 7 months after his arrest. There was no such denial. As stated by this Court in a per curiam decision: "x... the test of violation of the right to speedy trial has always been to begin counting the delay from the time the information is filed, not before the filing. The delay in the filing of the information, which in the instant case has not been without reasonable cause, is therefore not to be reckoned with in determining whether there has been a denial of the right to speedy trial." (People vs. Orsal, 113 SCRA 226 at 236.) At any rate, whether or not one has been denied speedy trial is not susceptible to precise quantification. At best, the constitutional right of speedy trial is relative, consistent with reasonable delays, taking into account the circumstances of each case. As expressed in Barker vs. Wingo, 33 L. Ed 2d 101: ... the right to a speedy trial is a more vague and generically different concept than other constitutional rights guaranteed to accused persons and cannot be quantified into a specified number of days or months, and it is impossible to pinpoint a precise time in the judicial process when the right must be asserted or considered waived ... ... a claim that a defendant has been denied his right to a speedy trial is subject to a balancing test, in which the conduct of both the prosecution and the defendant are weighed, and courts should consider such factors as length of the delay, reason for the delay, the defendant's assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, in determining whether defendant's right to a speedy trial has been denied ... Returning to the case at hand, the criminal act imputed to the petitioner unfortunately resulted in the death of three persons (including Rogelio Cruz who allegedly bought the handgrenades from the petitioner) and very serious injuries to three others whose testimony is vital to the preferment of charges and prosecution of the petitioner. It is therefore not unreasonable to heed the claim of respondents that the delay complained of was occasioned by the unavailability of witnesses, a claim which has not at all been challenged or denied by the petitioner. WHEREFORE, the petition for habeas corpus is dismissed, without prejudice to the petitioner seeking his provisional release on bail from the military authorities or the Ministry of National Defense. No costs. G.R. No. 101302 January 25, 1995 JAIME C. vs. PEOPLE OF THE PHILIPPINES SANDIGANBAYAN, respondents. QUIASON, J.: DACANAY, petitioner, and THE HONORABLE

In 1986, a criminal complaint for economic sabotage through smuggling, with regard to the importation of raw sugar in 1983 and 1984 by NASUTRA, was filed with the Tanodbayan against the principal officers of the said corporation including petitioner. On October 10, 1986, the Tanodbayan approved the resolution of the team of Special Prosecutors who investigated the case. it found sufficient prima facie evidence against petitioner and hi co-accused to warrant the filing of an information with respondent Sandiganbayan for violation of Section 3(e) of Republic Act No. 3019, as amended. The corresponding information was filed with the Sandiganbayan. On November 20, petitioner filed a motion to quash but he later withdrew the same. On October 14, 1988, a resolution was issued by Special Prosecutors Margarito P. Gervacio and Robert E. Kallos, recommending the dismissal of the complaint against petitioner and his co-accused for lack of sufficient evidence and the withdrawal of the information filed in court. The resolution was approved by Acting Special Prosecutor Jose Ferrer. On January 6, 1989, the resolution issued by Prosecutors Gervacio and Kallos was reviewed by special Prosecutor Wilfredo Orencia, who recommended its disapproval. The recommendation of Prosecutor Orencia was approved by Acting Special Prosecutor Jose F. Guerrero and by Ombudsman Conrado Vasquez. On February 22, Jose Unson, a co-accused of petitioner, filed a motion to quash the information in the Sandiganbayan. The motion was adopted by petitioner. On December 12, the Sandiganbayan denied the motion to quash. Likewise, the motion for reconsideration filed by Unson and adopted by petitioner was denied. On April 3, 1991 petitioner filed a motion for immediate and separate trial invoking his constitutional right to a speedy trial (Rollo, p. 25). On April 23, respondent People of the Philippines opposed the said motion on the ground that a separate trial for petitioner would entail a lengthy and repetitious proceeding (Rollo, p. 28). In a resolution dated April 24, 1991, the Sandiganbayan denied petitioner's motion (Rollo, p. 20). On June 6, petitioner filed a motion for reconsideration setting forth as grounds therefor his advanced age and the protection of his reputation. On July 9, respondent People of the Philippines filed a comment to petitioner's motion for reconsideration and alleged that the parties should first await the resolution of the petition for certiorari filed by his co-accused Jose Unson with the Supreme Court. On July 17, petitioner filed a reply to the said comment. In a resolution dated August 6, 1991, the Sandiganbayan denied petitioner's motion for reconsideration (Rollo, p. 21). Hence, this petition.

This is a "Petition for Review on Certiorari" which we treated as a petition under Rule 65 of the Revised Rules of Court to set aside the Resolutions dated April 24, 1991 and August 6, 1991 of the Sandiganbayan in Criminal Case No. 11957. I

II The pivotal issue of this petition is whether or not petitioner is entitled to a separate trial. The petition is impressed with merit.

In 1985, petitioner was the vice-president of the National Sugar Trading Corporation (NASUTRA).

Section 8, Rule 119 of the 1985 Rules on Criminal Procedure explicitly states: "When two or more accused are jointly charged with any offense, they shall be tried jointly, unless the court in its discretion upon motion of the fiscal or any accused orders separate trials for one or more accused." The main objection of respondent People of the Philippines to he separate trial asked by Petitioner is that such a procedure would entail a repetitive presentation of evidence. A separate trial necessarily requires a repetition of the presentation of the same evidence. But the resulting inconvenience and expense on the part of the Government cannot be given preference over the right to speedy trial and the protection to a person's life, liberty or property accorded by the Constitution. This is particularly true in the case of petitioner where the prosecutors' opposition to the request for separate trial was based on the ground that the principal accused in the case, the former President of NASUTRA, was abroad and was not yet arrested. If an accused cannot be placed under arrest because he remains outside the territorial jurisdiction of the Philippines, with more reason should his co-accused, who are under arrest, be entitled to a separate trial. However, the principal accused has since returned to the country and even entered into a compromise agreement with the Presidential Commission on Good Government, which we approved on March 31, 1992 in G.R. No. 96087. If the compromise agreement included the dropping of the criminal case against the principal accused, with more reason should petitioner be entitled to a separate trial in criminal Case No. 11957 of the Sandiganbayan. A separate trial is in consonance with the right of an accused to a speedy trial as guaranteed to him by the 1987 Constitution, more specifically under Section 14(2) of Article III thereof. As defined in the case of Flores v. People, 61 SCRA 331 (1974), a speedy trial is one "conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious and oppressive delays." The primordial purpose of this constitutional right is to prevent the oppression of an accused by delaying criminal prosecution for an indefinite period of time. Likewise, it is intended to prevent delays in the administration of justice by requiring judicial tribunals to proceed with reasonable dispatch in the trial of criminal prosecutions (Shepherd v. U.S., 163 F. 2d. 974 [1947]). It has been eight years since the information against petitioner was filed, but the case against him has yet to be tried. The long delay has clearly prejudiced petitioner, who is now more than seventy-three yeas of age. WHEREFORE, respondents are ORDERED to proceed with the trial of petitioner in Criminal Case No. 11957, separately if it need be. Xxxx

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