G.R. No.
129295, August 15, 2001 committed the robbery in the early evening of
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, VS.
EDWIN MORIAL, LEONARDO MORIAL ALIAS
"CARDING" AND NONELITO ABIÑON* ALIAS
"NOLY," defendants-appellants
DECISION
PER CURIAM:
Two of the three appellants herein were sentenced
to death by the Regional Trial Court (RTC) of
Southern Leyte for Robbery with Homicide. The
other was sentenced to suffer only the penalty
of reclusion perpetua on account of minority. The
judgment of conviction is now before this Court on
automatic review.
The information charging appellants reads as
follows:
That on the 6th day of January 1996, at about 6:30
o'clock [sic] in the evening more or less, in
[B]arangay Cagnituan, [M]unicipality of Maasin,
[P]rovince of Southern Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the above-
named accused conspiring, confederating and
mutually helping one another, with intent to kill and
with intent of [sic] gain, entered into [sic] the house
of Paula Bandibas and Benjamin Morial and once
inside did then and there willfully and unlawfully and
feloniously attack, assault, box, beat and stab the
victims Paula Bandibas and Albert Bandibas, with
the use of sharp-pointed weapons and stones which
the accused had provided themselves for the
purpose, thereby inflicting upon the victims mortal
wounds which caused their instantaneous death,
after [which], said accused took, stole and carried
away therefrom Cash in the amount of Eleven
Thousand Pesos (P11,000.00) Philippine Currency,
belonging to said Paula Bandibas and Benjamin
Morial, to the damage and prejudice of the victims
and of social order.
CONTRARY TO LAW.[1]
Upon arraignment, the three accused pleaded not
guilty.
The prosecution theorized that the accused
January 6, 1996 so they would have money to spend
for the dance later that night. To obtain the money
or to silence any witnesses, the accused killed the
occupants of the house, Paula Bandibas and her
three-year old grandson Albert. In proving its
theory, the prosecution offered the testimonies of
Gabriel Guilao, Benjamin Morial, SPO4 Antonio
Macion and Dr. Teodulo Salas.
The crime allegedly took place at 6:00 in the evening
in Barangay Cagnituan, Maasin, Southern Leyte.
Gabriel Guilao, 62, had just finished pasturing his
horses and was on his way home. He was passing
through the road near the house of Benjamin Morial
when he heard the voice of Paula Bandibas pleading,
"[P]lease don't kill me[.] I am going to give you
money." Finding what he heard "weird," Gabriel
paused and remained at a distance of about eight
(8) meters from the yard of the house. From where
he stood, Gabriel saw accused Nonelito Abiñon slap
Paula Bandibas' neck. Paula fell and was stabbed by
accused Edwin Morial with a small, sharp, pointed
weapon. Accused Leonardo Morial stood outside
the house.
Gabriel also saw Paula Bandibas' grandson, Albert
Bandibas, run towards his grandmother's garden.
Gabriel then heard the crushing sound of a stone
against flesh.
The three accused stayed in the house for about ten
minutes after the killing the victims. Thereafter,
they departed and headed towards the nearby
houses.[2]
Paula Bandibas' common-law husband, Benjamin
Morial, 56, was in neighboring Barangay Maria Clara
when the incident took place. He, along with the
father of accused Leonardo Morial, and two others,
Heracleo Alonzo and Leo Padilla, were having drinks
in his Maria Clara residence.
Benjamin left Barangay Maria Clara the next day at
2:00 in the afternoon. He arrived in Barangay
Cagnituan, 7 kilometers away, two hours later. As
was his wont, Benjamin called out Paula's name
when he was some five (5) meters from the house.
This time, however, there was no answer.
Benjamin raced to the house, heading straight to the
bedroom. There, he found the clothes all topsy-
turvy. The box where he and Paula hid their money
was turned upside down. Someone had ransacked
their house.
Benjamin moved back and saw Paula lying on the
floor with a cut in her neck. He shouted for help.
Responding to his cries, Benjamin's neighbors,
including barangay kagawads Patricio Abiñon and
Rufino Guilao, rushed to his house. Benjamin asked
his neighbors to help search for Albert, who was
found shortly some 50 meters from the house.
Albert Bandibas laid flat on the ground with two
stones near his head. Benjamin requested Patricio
to send someone to report the incident to the
police.[3]
Upon learning of Benjamin's return to Barangay
Cagnituan, Gabriel Guilao also hurried to Benjamin's
house.[4]He revealed to the grieving Benjamin that
he witnessed Paula's killing and that the three
accused, Edwin Morial, Leonardo Morial and
Nonelito Abiñon, were the perpetrators. Benjamin
advised Gabriel not to tell anyone about what he
knew for fear that they would all be killed since the
Abiñons were "saturated in [their] place." Gabriel
heeded Benjamin's advice.[5]
The police arrived at around 10:00 that evening.
SPO4 Antonio Macion, along with four other police
officers, investigated the tragedy. They found
wounds in Paula Bandibas' stomach, breast and
neck. Albert Bandibas, on the other hand, had a
contusion on the right side of his head. Beside him
were two stones.[6]
After examining the victims' wounds, the police
officers, along with Benjamin Morial, proceeded to
the bedroom. Benjamin informed the officers that
P11,000.00 was missing from the moneybox. Other
than the cash, nothing else was missing.
Outside the house, Benjamin disclosed to the
officers his three suspects, the accused in this case.
He advised them, however, to bring only Leonardo
and Edwin Morial into custody and not to include
Nonelito Abiñon, who had many relatives in
Cagnituan. As a former barangay captain of 22
years, he knew that the Abiñons were "most feared"
in Cagnituan. Benjamin did not tell the police that
Gabriel Guilao had witnessed the incident.[7]
The police found Edwin and Leonardo Morial in the
house of Nonelito Abiñon and invited the two to the
police station, where they were turned over to SPO4
Andres Fernandez. The investigation conducted by
SPO4 Fernandez yielded an extra-judicial confession
from accused Leonardo Morial,[8] who was assisted
by Atty. Tobias Aguilar.
On January 8, 1996, Dr. Teodulo Salas, a rural health
physician, conducted a post-mortem examination
on the bodies of the victims. Dr. Salas found an
incised wound at the upper portion of Paula
Bandibas' neck, which he believed was caused by a
sharp-edged weapon or instrument, possibly a
knife. Two stab wounds on the chest below and
above the right nipple, both punctured the lung.
Another stab wound at the abdomen pierced the
intestine. Dr. Salas concluded that the cause of
death of Paula Bandibas is severe hemorrhages
secondary to the incised wound.
On the remains of Albert Bandibas, Dr. Salas found
multiple angular corrogated wounds on the head,
which could have been caused by a heavy object
such as a stone. Multiple stab wounds punctured
the skull. There was also an abrasion on the right
side of the face, which was grossly swollen and
disfigured. The abrasion, according to Dr. Salas,
might have been caused by a piece of wood, by
friction with the ground, or by some rough material
that struck the child's face. The last injury was a stab
wound on the right forehead. Dr. Salas believed that
the cause of death of Albert Bandibas is the intra-
cranial hemorrhages secondary to the violent injury
to the head.[9] The foregoing findings and
conclusions were reduced to writing in the doctor's
Necropsy Reports.[10]
The accused, all first-degree cousins, interposed
denial and alibi as their defense. They denied being
together at the time of the incident.
Accused Nonelito Abiñon, 22, claimed that he was in
his house at around 6:00 in the evening of January
6, 1996. An hour later, he went to the house of his
sweetheart, Rosalie Mepico, and the two later
attended a dance at around 9:30 that evening. At
the dance, they occupied a table with Renida
Mepico, Renato Montederamos and Edwin Morial.
Leonardo Morial, he said, was not with them.[11]
Accused Edwin Morial, 18, maintained that he was
also at home on January 6, 1996. He slept from 6:00
until 7:30 in the evening. At 9:00 p.m., he went to
the dance with Renato Montederamos. Nonelito
Abiñon and Reneda Mepico were also at the
dance.[12]
The defense pinned its bid for exculpation on the
lengthy testimony of accused Leonardo Morial, 20.
He narrated as follows:
At around 6:00 to 7:00 p.m. of January 6, 1996, he
was at home washing dishes. He had supper at
approximately 7:00 and went to sleep at about 7:30
or 8:00. Unlike his fellow accused, Leonardo did not
go to the dance.[13]
At 4:00 in the afternoon of the next day, he was in
the basketball court of their barangay watching
Nonelito and Edwin playing basketball with Jaime
Morial, Renato Montederamos, Jimmy Abiñon,
Danilo Morial and Christopher Morial, among
others.[14] Suddenly, they heard Benjamin Morial
shout for help several times.[15]Nonelito and Edwin,
along with the others in the basketball court, all
rushed to Benjamin Morial's house.[16]Leonardo
Morial also proceeded to Benjamin's house after
bringing home his two-year old sister.[17]
At the house of Benjamin Morial, they found the
lifeless body of Paula Bandibas on the floor
underneath the kitchen table. Her hands were on
her breast, one foot crooked and the other straight.
She had wounds in her neck and breast. The corpse
exuded a bad odor. Benjamin Morial was crying. He
said that whoever killed Paula shall pay.[18] Edwin
asked Daniel Morial who the suspects to the killing
were. Daniel said he did not know. Edwin went
home after about five minutes.[19]
After viewing Paula Bandibas' remains, Leonardo
went out of the house because of the unpleasant
smell and then headed home.[20] Nonelito, on the
other hand, departed as people started looking for
the body of Albert Bandibas since it was getting late.
That was about 5:15 in the afternoon.[21]
That night, Edwin and Leonardo slept at Nonelito's
house. Nonelito had invited Edwin to sleep over as
they were going to dress a chicken,[22] and Edwin
had told Leonardo about it. The cousins had the
chicken for dinner. It was quite late when they
finished their supper so Leonardo also decided to
spend the night at Nonelito's house.[23] They slept at
past 8:00 in the evening.[24] According to Nonelito,
that was not the only time that the two had slept
over. He said there were previous occasions that his
cousins had spent the night at their place.[25]
The Abiñon household was to be roused from its
slumber three hours later. At 11:00 p.m., the police
arrived to investigate the killing of the Bandibases.
A police officer asked Edwin where he was at 6:00 in
the evening of January 6, 1996. Edwin replied that
he was in their house sleeping. They also asked the
same question to Leonardo Morial, who answered
that he was at home taking care of his younger
siblings. Nonelito, however, was not questioned. A
policeman informed Edwin and Leonardo that they
would be brought to the police station for the
continuation of the investigation.[26]
Edwin and Leonardo went with the police officers
and arrived at the station at around 3:00 dawn the
next day. The police told them to go to sleep.[27]
The suspects were interrogated after they awoke at
past 6:00 that same morning. Edwin was advised to
tell the truth so he would not be killed.
Nevertheless, he refused to admit his alleged
participation in the killings. Someone then struck his
left hand with a pistol. His hand swelled. A
policeman in uniform warned him that if he did not
tell the truth, he would be brought to the toilet.
Sure enough, Edwin was subsequently brought to
the lavatory where he was boxed at the back and
instructed to undress. As Edwin stood naked, hands
on his side, six tires were placed around his body. A
towel soaked with water was pushed into his
mouth. Fortunately, the towel did not go all the way
to his throat since another policeman, a certain
Leoni Egido, advised Edwin' s tormentors to stop
and have pity on him. Edwin said that around seven
policemen were in the toilet with him though he
could not identify any of them in court. He claimed
that he did not have his hand examined by a
physician since he was afraid.[28]
Like Edwin, Leonardo was also asked where he was
on January 6, 1996 at 6:00 in the evening. Leonardo
reiterated that he was at home. He was then
brought to a separate room where his interrogation
continued.
Leonardo refused to own up to the incident so a
policeman called two other policemen and directed
them to gag Leonardo. The two held Leonardo's
arms while the other stuffed a shirt into his mouth.
One of them inflicted three successive painful blows
on Leonardo's left side as the two others continued
to hold his hands.
Leonardo was then seated and his gag removed. The
police told Leonardo to confess to the killings.
Leonardo professed that he did not witness the
incident and could not tell them anything about it.
Again, they gagged his mouth and the same
policeman who had hit him then boxed him twice,
this time on his right side. Thereafter, they released
their hold and advised him to confess so they would
not kill him. Leonardo repeated that he did not
know anything about the incident. When a
policeman attempted to box him again, Leonardo
finally admitted that Nonelito Abiñon and Edwin
Morial were responsible for the death of Paula
Bandibas. Leonardo's interrogation lasted one and a
half to two hours.
Asked in court to identify the uniformed policemen
who beat him up, Leonardo said he could not recall
their faces. He did not look at the policemen during
his interrogation and did not see their nameplates.
Leonardo did not ask the police for a physician to
examine him nor did he tell anyone about his
injuries because he did not know he was permitted
to do so.
Leonardo's statements were then reduced into
writing. A policeman informed him that they were
going to contact a lawyer to assist him during the
investigation. Leonardo was told that his counsel
would be a certain Atty. Aguilar whose office was
very near the police station. Leonardo consented.
Having prepared Leonardo's statement, the police
then told Leonardo to come with them to Atty.
Aguilar's office, which was about 50 meters from the
police station. There, he saw Atty. Aguilar for the
first time. The lawyer read to him the document and
asked him whether its contents were true. The
police had instructed Leonardo to answer "yes" if he
was asked that question, and Leonardo heeded the
instructions.
Leonardo denied that Atty. Aguilar examined his
body for any injuries. Atty. Aguilar did ask Leonardo
if he was forced or intimidated to execute the extra-
judicial confession. Leonardo, however, did not tell
his lawyer about his injuries since a police officer
had warned him that he would be mauled again
should he do so. Leonardo then signed the extra-
judicial confession, after which Atty. Aguilar affixed
his. The signing over, Leonardo was brought back to
the police station.[29] Later in court, Leonardo
claimed that he merely made up all the statements
in the document because he was afraid.
At around 8:30 that morning, Nonelito visited
Leonardo and Edwin at the police station. A police
officer informed Nonelito that he was one of the
suspects and handcuffed him.[30]
To belie Gabriel Guilao's eyewitness account, the
defense also presented Patricio Abiñon and Eulogio
Padilla. Patricio and Eulogio purportedly saw Gabriel
in Barangay Maria Clara at the alleged time of the
incident as well as the morning after.
On rebuttal, the prosecution offered the
testomonies of Flora Bandibas, Martin Galope and
Erlito Bandibas.
Flora and Martin were presented to disprove the
testimony of the accused that Edwin Morial was not
at the dance with his co-accused. Flora claimed that
she saw the three together at the dance with Rosalia
and Reneda Mepico occupying one table. Nonelito
and Edwin danced joyfully, even somewhat
unusually, and caught the attention of other people.
Leonardo also danced but did not seem to enjoy
himself.[31]
Martin, a barangay tanod, was at the dance to help
preserve the peace. He maintained that he saw all
the three accused, including Leonardo Morial, at the
dance.[32]
The defense attempted to diminish these witnesses'
credibility by showing their relation to the victim. On
cross-examination, Flora admitted that she is the
wife of Ireneo Bandibas, the barangay captain, and
the son of Paula Bandibas.[33] Martin Galope, for his
part, said that the same Ireneo Bandibas had
appointed him barangay tanod.[34]
Erlito Bandibas' testimony, on the other hand, was
intended to refute the testimonies of defense
witnesses Patricio Abiñon and Eulogio Padilla that
Gabriel Guilao, the alleged eyewitness to the
killings, was in Maria Clara at the purported time of
the incident.
On sur-rebuttal, the defense again presented
Eulogio Padilla to dispute the testimony of Erlito
Bandibas.
After trial, the RTC rendered a decision convicting all
the three accused, thus:
WHEREFORE, judgment is hereby rendered finding
all the accused, namely: LEONARDO MORIAL,
NONELITO ABIÑON and EDWIN MORIAL, GUILTY
beyond reasonable doubt of the crime of ROBBERY
WITH HOMICIDE as defined under Article 293 and
penalized under Article 294 (1) of the Revised Penal
Code and are hereby sentenced as follows:
1. Accused LEONARDO MORIAL and NONELITO
ABIÑON to each suffer the supreme penalty of
DEATH by lethal injection; and
2. Accused EDWIN MORIAL, due to his minority, to
suffer the lesser penalty of RECLUSION PERPETUA.
Civilly, the three (3) accused aforenamed are held
liable JOINTLY and SEVERALLY as follows:
3. To indemnify the heirs of Paula Bandibas the
amount of P50,000.00 as death indemnity;
4. To indemnify the heirs of Albert Bandibas the
amount of P50,000.00 as death indemnity;
5. To indemnify complainant Benjamin Morial the
amount of P20,546.00 as actual damages for the
funeral, burial and wake expenses;
6. To pay to the heirs [the] aforementioned moral
damages of P60,000.00 for each death; and
7. To restitute or restore to private complainant
Benjamin Morial the P11,000.00 amount robbed;
8. To pay the costs.
SO ORDERED.[35]
Appellants' conviction rests on two vital pieces of
evidence: the extra-judicial confession of appellant
Leonardo Morial and the eyewitness account of
Gabriel Guilao.
The Court finds Leonardo Morial's extra-judicial
confession invalid since he was effectively deprived
of his right to counsel during the custodial
investigation.
A custodial investigation is understood to mean as
"any questioning initiated by law enforcement
authorities after a person is taken into custody or
otherwise deprived of his freedom of action in any
significant manner."[36] It begins when there is no
longer a general inquiry into an unsolved crime but
starts to focus on a particular person as a suspect,
i.e., when the police investigator starts interrogating
or exacting a confession from the suspect in
connection with an alleged offense.[37]
A person under custodial investigation is
guaranteed certain rights, which attach upon the
commencement thereof. These are the rights (1) to
remain silent, (2) to competent and independent
counsel, preferably of his own choice, and (3) to be
informed of the two other rights.[38] The
prosecution must prove with clear and convincing
evidence that the accused was accorded said rights
before he extra-judicially admitted his guilt to the
authorities.[39]
Thus, the prosecution offered the testimonies of
SPO4 Andres Fernandez and Atty. Tobias Aguilar.
SPO4 Fernandez testified that the investigation he
conducted resulted in an admission by Leonardo
Morial that he was one of those who participated in
the robbery with homicide. SPO4 Fernandez asked
Leonardo whether he was willing to reduce his
statement into writing and to sign the same. The
suspect answered positively. SPO4 Fernandez then
advised him of his right "to remain silent and [to]
have a counsel[,] [and informed him that] whatever
will be his answer will be used as evidence in
Court."[40]
Leonardo told the investigator that he had no
money to pay for the services of counsel. SPO4
Fernandez informed him that there are many
lawyers in their municipality and named some of
them. Leonardo said he did not know any of the
lawyers mentioned. SPO4 Fernandez thus
volunteered to obtain a lawyer for the suspect, to
which Leonardo Morial consented. SPO4 Fernandez
then contacted Atty. Aguilar.[41]
Atty. Tobias Aguilar arrived at about 8:00 that
morning of January 9, 1996. After being introduced
to Leonardo Morial, Atty. Aguilar had a short
conference with him. He asked Leonardo if he was
willing to answer the questions that may be
propounded by the police investigator. Atty. Aguilar
warned him that the statements that he may give
might be used in evidence against him. Leonardo
said he was willing to answer the questions
voluntarily. According to Atty. Aguilar, Leonardo
was bent on revealing what really happened.
Thereafter, SPO4 Fernandez conducted the
investigation in Cebuano.
Midway into the investigation, after the police
investigator had asked "all the material points,"
Atty. Aguilar asked the investigator that he be given
leave as he had a very important engagement. The
investigator agreed to the lawyer's request.[42]
Before leaving, Atty. Aguilar asked Leonardo if he
was willing to answer the questions in his absence.
He also instructed the police that, after the written
confession had been prepared, the accused and the
document containing the confession should be
brought to his office for "further examination." Atty.
Aguilar was in the police station for less than thirty
minutes from the start of the interrogation.
At about 1:30 or 2:00 in the afternoon, Leonardo
and his policeman-escort arrived at Atty. Aguilar's
office. Atty. Aguilar asked the accused whether he
was maltreated while he was away and examined
the suspect's body for contusions or abrasions.
Leonardo told him that he was not harmed by the
police officer. The lawyer then studied the
document to determine whether its contents
conformed to the answers given by the accused in
his (counsel's) presence. He propounded questions
to Leonardo with reference to the document. Atty.
Aguilar asked him whether he understood its
contents and whether he was willing to sign it.
Leonardo replied in the positive and signed the
document in the presence of Atty. Aguilar and the
policeman-escort.[43]
SPO4 Fernandez confirmed that Atty. Aguilar left
during the investigation. On direct examination,
SPO4 Fernandez said the lawyer left the station
while the investigation was still going on, saying that
he had so many things to do in his office.[44] On
cross-examination, SPO4 Fernandez hesitated a
little when he testified that Atty. Aguilar "might"
have probably gone out in the middle of the
investigation.[45] Later, he clarified that while in the
process of drafting the statement, Atty. Aguilar told
him that he had to go to his office to attend to some
matters.[46] SPO4 Fernandez added that while Atty.
Aguilar was "in the police station during the
investigation," "he (Atty. Aguilar) [would] come and
go but within the police station."[47]
During and despite Atty. Aguilar's absence, SPO4
Fernandez continued with the investigation and
propounded several more questions to Leonardo,
which the latter answered.[48]
The Court has stressed that an accused under
custodial interrogation must continuously have a
counsel assisting him from the very start
thereof.[49] In People vs. Lucero,[50] where the
suspect's counsel left just when the interrogation
was starting, this Court chastised both counsel and
the trial court for their lack of zeal in safeguarding
the rights of the accused.
SPO4 Fernandez cannot justify Atty. Aguilar's
leaving by claiming that when the lawyer left, he
knew very well that the suspect had already
admitted that he (Leonardo) and his companions
committed the crime.[51]Neither can Atty. Aguilar
rationalize his abandoning his client by saying that
he left only after the latter had admitted the
"material points," referring to the three accused's
respective participation in the crime.[52] For even as
the person under custodial investigation enjoys the
right to counsel from its inception, so does he enjoy
such right until its termination -indeed, "in every
phase of the investigation."[53] An effective and
vigilant counsel "necessarily and logically requires
that the lawyer be present and able to advise and
assist his client from the time the confessant
answers the first question asked by the investigating
officer until the signing of the extrajudicial
confession."[54]
Furthermore, Section 2(a) of R.A.
[55]
No.7438 requires that "[a]ny person arrested,
detained or under custodial investigation shall at all
times be assisted by counsel." The last paragraph of
Section 3 of the same law mandates that "[i]n the
absence of any lawyer, no custodial investigation
shall be conducted."
The right of appellant to counsel was therefore
completely negated by the precipitate departure of
Atty. Tobias before the termination of the custodial
investigation. In People vs. Deniega,[56] we
explained the rationale for the rule requiring
counsel's continuing presence throughout the
custodial investigation:
Conditions vary at every stage of the process of
custodial investigation. What may satisfy
constitutional requirements of voluntariness at the
investigation's onset may not be sufficient as the
investigation goes on. x x x. The competent or
independent counsel so engaged should be present
from the beginning to end, i.e., at all stages of the
interview, counseling or advising caution reasonably
at every turn of the investigation, and stopping the
interrogation once in a while either to give advice to
the accused that he may either continue, choose to
remain silent or terminate the interview.
If it were true that Atty. Tobias had to attend to
matters so pressing that he had to abandon a client
undergoing custodial investigation, he could have
terminated the same to be continued only until as
soon as his schedule permitted, advising the suspect
in the meantime to remain silent. This he failed to
do. Apallingly, he even asked his client whether he
was willing to answer questions during the lawyer's
absence. The records also disclose that Atty. Tobias
never informed appellant of his right to remain
silent, not even before the custodial investigation
started.[57]
Atty. Tobias, by his failure to inform appellant of the
latter's right to remain silent, by his "coming and
going" during the custodial investigation, and by his
abrupt departure before the termination of the
proceedings, can hardly be the counsel that the
framers of the 1987 Constitution contemplated
when it added the modifier "competent" to the
word "counsel." Neither can he be described as the
"vigilant and effective" counsel that jurisprudence
requires. Precisely, it is Atty. Tobias' nonchalant
behavior during the custodial investigation that the
Constitution abhors and which this Court condemns.
His casual attitude subverted the very purpose for
this vital right, which is to:
x x x curb the uncivilized practice of extracting
confession even by the slightest coercion as would
lead the accused to admit something false. What is
sought to be avoided is the "evil of extorting from
the very mouth of the person undergoing
interrogation for the commission of an offense, the
very evidence with which to prosecute and
thereafter convict him." These constitutional
guarantee have been made available to protect him
from the inherently coercive psychological, if not
physical, atmosphere of such investigation.[58]
Even granting that appellant consented to Atty.
Aguilar's departure during the investigation and to
answer questions during the lawyer's absence, such
consent was an invalid waiver of his right to counsel
and his right to remain silent. Under Section 12 (3),
Article III of the Constitution, these rights cannot be
waived unless the same is made in writing and in the
presence of counsel. No such written and counseled
waiver of these rights was offered in evidence.
That the extra-judicial confession was subsequently
signed in the presence of counsel did not cure its
constitutional defects. In People vs. Compil,[59] this
Court held:
x x x it is evident that accused-appellant was
immediately subjected to an interrogation upon his
arrest in the house of Rey Lopez in Tayabas, Quezon.
He was then brought to the Tayabas Police Station
where he was further questioned. And while on their
way to Manila, the arresting agents again elicited
incriminating information. In all three instances, he
confessed to the commission of the crime and
admitted his participation therein. In all those
instances, he was not assisted by counsel.
The belated arrival of the CLAO lawyer the following
day even if prior to the actual signing of the
uncounseled confession does not cure the defect for
the investigators were already able to extract
incriminatory statements from accused- appellant.
The operative act, it has been stressed, is when the
police investigation is no longer a general inquiry
into an unsolved crime but has began to focus on a
particular suspect who has been taken into custody
by the police to carry out a process of interrogation
that lends itself to eliciting incriminatory
statements, and not the signing by the suspect of his
supposed extrajudicial confession. Thus in People v.
de Jesus [213 SCRA 345 (1992)] we said
that admissions obtained during custodial
interrogations without the benefit of counsel
although later reduced to writing and signed in the
presence of counsel are still flawed under the
Constitution. [Underscoring supplied.]
Moreover, appellant's policeman-escort was also
present in the lawyer's office as attorney and client
discussed the voluntariness of the latter's
confession. One can hardly expect the suspect, in
the face of such intimidating presence, to candidly
admit that he was coerced into confessing.
As appellant Leonardo Morial was effectively
deprived of his right to counsel during custodial
investigation, his extra-judicial confession is
inadmissible in evidence against him.[60]
The confession is also inadmissible against appellant
Leonardo Morial's co-accused, Nonelito Abiñon and
Edwin Morial. The rule on res inter alios acta
provides that the rights of a party cannot be
prejudiced by an act, declaration, or omission of
another [61]
An exception to the res inter alios acta rule is an
admission made by a conspirator. Section 30, Rule
130 of the Rules of Court provides that the act or
declaration of the conspirator relating to the
conspiracy and during its existence may be given in
evidence against the co-conspirator provided that
the conspiracy is shown by evidence other than by
such act or declaration. The exception, however,
does not apply in this case since the confession was
made after the alleged conspiracy and not while the
declarant was engaged in carrying out the
conspiracy.[62]
Notwithstanding the inadmissibility of the
extrajudicial confession executed by Leonardo
Morial, the conviction of appellants is fully
supported by the other pieces of evidence adduced
by the prosecution. It is well settled that where
there is independent evidence, apart from the
accused's alleged uncounseled confession, that the
accused is truly guilty, the latter nevertheless faces
a conviction.[63] Here, the testimony of eyewitness
Gabriel Guilao certainly deserves credence. He
recounted before the trial court:
Q Now, do you still recall Mr. Witness where you
were on January 6, 1996 at more or less 6:00
o'clock in the afternoon?
A I can remember, sir.
Q Where were you if you can recall?
A I was pasturing my horse.
Q How many horses do you have?
A One mature and one young horse, the young one
is not yet tied up.
Q So you have two horses all in all?
PROS.
RUIZ:
Q Do you have carabao, Mr. Witness?
A None, Sir.
Q Now, while you were pasturing your horse at more
or less 6:00 o'clock in the afternoon of January 6,
1996, I withdraw that question, Your Honor.
COURT:
Reform.
PROS.
RUIZ: A Leonardo Morial was just outside the house of
Paula Bandibas.
Q Now, how long did you stay in that pasture land?
A Two minutes, Sir, then I went home. PROS.
RUIZ:
Q So, after pasturing your horse for two minutes,
after that you went home? Now, on your way Q What was Leonardo Morial doing outside the
home, do you remember what happened if any? house of Benjamin Morial?
A Yes, Sir. A He was just standing thereat.

Q What was that incident are you referring to? Q Now, in your estimate, how long did Nonelito and
A When I went home, I passed by on the road near Edwin were inside the house of Benjamin Morial?
the house of Benjamin Morial, then I heard the
voice of Paula saying: "please don't kill me I am WITNESS:
going to give you money." After they have killed the old woman, two
minutes. . .
Q Now, when you said, Paula are you referring to
Paula one of the victim in this case? ATTY.
A Yes, Sir. GABUCAN:

PROS. RUIZ The answer is not responsive, the question was

how long?
Q Now, when you heard that voice of Paula, what did
you do? PROS.
A I paused for a while because what I heard I found RUIZ:
it weird. That is the answer of the witness.

Q Where did you stay at that moment as what you COURT:

have said that you stayed for a while? Continue with the answer.
A I stayed at a distance of about 8 meters from their
yard. WITNESS:

Q Were there trees in the place where you were A After killing the old woman, they stayed inside the
staying at that time? house for about ten minutes, Sir.
A Yes, Sir.
Q Now, after ten minutes, what did they do Mr.
Q While staying at the distance of 8 meters away Witness?
from the yard of the house of Benjamin Morial, A They went out of the house.
what did you observe if any?
A I saw that the old woman was slapped by Nonelito PROS.
Abiñon on her neck. RUIZ:

Q What else have you observed if any? Q After getting out from the house, what did they
A Then the old woman was down and when she was do?
down, this Edwin Morial stabbed her. A They went home, Sir.

Q Would you please tell this Honorable Court what
was that weapon used in stabbing the old woman
by Edwin Morial?
A A small sharp pointed weapon, Sir.
Q Now, have you seen Leonardo Morial in the house
of Benjamin Morial?
WITNESS:
Q In what direction?
A Towards the houses nearby.[64]
The defense has tried to discredit Guilao by harping
on the latter's relationship with private
complainant, Benjamin Morial, who is the brother of
Gabriel's wife,[65] conveniently forgetting that
Gabriel is also related to all of the accused who are
all his nephews.[66] On this score, the Court has held
that the weight of testimony of a witness is not
impaired or in any way affected by his relationship
to the victim when there is no showing of improper
motive on the part of the witness.[67] A person who
was close to the victim would not callously violate
his conscience by blaming it on someone he
believed innocent thereof,[68] especially if the
accused were his blood relatives.
Anent the failure of Guilao to either attend to the
victims or to report the matter immediately to the
authorities, it should be remembered that different
people react differently to an unusual event and
there is no standard of behavior when a person
becomes a witness to something so shocking or
gruesome as murder especially if the assailant is
near.[69] The initial reluctance of the eyewitness to
disclose what transpired was sufficiently explained:
Gabriel, who was 62 years old at the time of the
incident, was too afraid to share what he saw even
to his wife,[70] and while he wanted to tell their
barangay captain, the latter was in Davao at that
time.[71] Instead, he made up his mind to tell only
Benjamin,[72] the common-law husband of the
victim Paula, which he promptly did upon
Benjamin's arrival at his house from Maria
Clara.[73] The failure of Gabriel to execute an
affidavit on what he witnessed was in fact due to the
request of Benjamin who advised him not to tell
anybody for fear that they might all be killed,[74] as
the Abiñons were the most feared persons in this
place.[75]
The defense, likewise, tried to show that Gabriel
could not have possibly witnessed the crime
because he was in Maria Clara at that time. Patricio
Abiñon, a relative of the accused Nonelito
Abiñon,[76] testified that he saw Gabriel at Maria
Clara at around six o'clock in the evening of 06
January 1996,[77] and again at around eight o'clock
in the morning the following day.[78] He surmised
that Gabriel stayed in Maria Clara because it would
take him about two (2) hours of hiking to travel from
Maria Clara to Cagnituan. However, it could not be
discounted that Patricio was merely making an
opinion as to the travel or hiking time of Gabriel and
he also admitted that he was not wearing a
timepiece.[79] Hence, as observed by the trial court,
it was not farfetched that Gabriel was in Maria Clara
in the afternoon of 06 January 1996, hiked to
Cagnituan in time to witness the incident and then
returned to Maria Clara in the morning of 07 January
1996 to buy some fish.
As regards the defense testimonies that Gabriel
could not have possibly seen the incident from the
trail, it should be stressed here that Gabriel
categorically stated that he was about eight (8)
meters from the yard of Benjamin's house when he
saw Nonelito Abiñon slap Paula on the neck after
which Edwin Morial stabbed her.[80] In addition,
defense witnesses Patricio Abiñon and Eulogio
Padilla even contradicted each other when the
former stated it would be possible to see the inside
of the house if the light was on[81] while the latter
stated that any person inside could not be seen even
if the light was on.[82]
Pending review of this case, Gabriel Guilao filed
before this Court a three page "Manifestation with
Prayer," dated 22 June 2000, which in effect, was a
recantation of his testimony in the trial court. He
declared that he was "utilized" by Benjamin Morial
against the three accused because the latter had a
long-standing grudge against them and was
impelled by "hatred" and a "false sense of anger."
Since Benjamin could not "pinpoint" the killer of
Paula and Albert Bandibas, it was decided that the
three accused be implicated to the crime ''as a way
of getting revenge." Gabriel's relation to Benjamin,
whose wife is the sister of Gabriel's wife Regina,
accounted for Benjamin's influence over him. In
sum, Gabriel maintained that appellants Edwin
Morial, Leonardo Morial and Nonelito Abiñon had
"nothing to do with the crime charged."
The attitude of courts towards affidavits of
retraction is one of distrust, if not of disapprobation,
because
x x x affidavits of recantation can easily be secured
from poor and ignorant witnesses for monetary
consideration or through intimidation. Recanted
testimony is exceedingly unreliable for there is
always the probability that it may later be
repudiated. Courts thus look with disfavor at
affidavits of retractions of testimony given in open
court, and are wary or reluctant to allow a new trial
based on retracted testimony. Indeed, it would be a
dangerous rule to reject the testimony taken before
the court of justice simply because the witness later
on changed his mind for one reason or another, for
such a rule will make a solemn trial a mockery and
will place the investigation of truth at the mercy of
unscrupulous witnesses.[83]
Further, the defense, during the trial of this case,
failed to establish any grudge or animosity between
and against the accused and Benjamin Morial, as
well as against the accused and Gabriel Guilao. In
fact, when Edwin's father died, Benjamin
accommodated Edwin and his mother in his nipa
house "kamalig" for more than two (2)
years.[84] Nonelito Abiñon also testified that he
could not recall having personal differences with
Benjamin.[85]
The accused have no other excuse other than alibi.
Interestingly, they all testified that they were in
their respective homes at the time of the incident.
Edwin Morial was sleeping,[86] Leonardo Morial was
cooking,[87]while Nonelito Abiñon was at home, not
doing anything.[88] In a number of cases, the Court
as ruled that alibi is the weakest of all defenses as it
is easy to fabricate and difficult to disprove, and it is
practically worthless in the face of positive
identification of the accused.[89] The Court noted
that none of the accused even presented any of
their supposed home companions to prove that
they were at home when the killings took place. In
addition, it was not established that it would have
been physically impossible for them to be at the
scene of the crime at the time of its
commission.[90] The house of Edwin Morial was
about two hundred (200) meters from the house of
Benjamin,[91] the house of Leonardo Morial only
about sixty (60) meters away,[92] while the house of
Nonelito Abiñon was about seven hundred (700)
meters from the house of Benjamin and he could
negotiate the distance in about ten (10)
minutes.[93] Equally unnatural were the respective
reactions of the accused when the bodies of Paula
and Albert were discovered. Leonardo Morial went
home after seeing the body of Paula,[94] Edwin
Morial looked at the body of Paula for five (5)
minutes after which he went home,[95]while
Nonelito Abiñon left the house of Benjamin while
the others who went there upon hearing the shouts
of Benjamin were still searching for the body of
Albert.[96] The prosecution was also able to establish
that the three accused were in one table during the
benefit dance which transpired on the eve of the
incident,[97]contrary to statements of Edwin Morial
and Nonelito Abiñon.
The trial court correctly ruled when it found the
accused guilty of robbery with homicide. It was
established that all the elements of the crime were
present; i.e., (1) the taking of personal property
perpetrated by means of violence or intimidation
against a person; (2) the property taken belongs to
another; (3) the taking is characterized by intent to
gain or animus lucrandi; and (4) on the occasion of
the robbery or by reason thereof, the crime of
homicide was committed.[98]
In this case, Benjamin, upon arrival at his house,
found that their room as in disarray, the clothes
were scattered and the box where they kept their
money was already turned upside down.[99] The
amount of P11,000.00 contained in the box was
already missing,[100] Paula was already
lifeless[101] and Albert was nowhere to be found.[102]
The trial court also correctly ruled that the accused
conspired to commit the crime. Conspiracy exists
when two or more persons come to an agreement
concerning the commission of a felony, and decide
to commit it.[103] It may be inferred from the acts of
the accused before, during and after the crime,
which are indicative of a joint purpose, concerted
action and concurrence of sentiments.[104] Where
the acts of the accused collectively and individually
demonstrate the existence of a common design
towards the accomplishment of the same unlawful
purpose, conspiracy is evident and all the
perpetrators will be liable as principals.[105] To
exempt himself from criminal liability, the
conspirator must have performed an overt act to
dissociate or detach himself from the unlawful plan
to commit the felony.[106]
In this case, it was established that after the killing
of Paula, the accused even stayed inside the house
for about ten (10) minutes,[107] presumably to look
for the hidden money. After about ten (10) minutes,
they left the house of Benjamin and went
home.[108] Clearly, Paula and Albert were already
dead or dying but not one of the accused lifted a
finger to show any pity or remorse. Hence, they
should all be made liable for the crime.
Dwelling was correctly appreciated as an
aggravating circumstance because of the sanctity
that the law accords to the privacy of the human
abode.[109] The home is considered a sacred place to
its owners, and one who goes to another house to
slander or hurt him, or do him wrong, more guilty
than he who offends him elsewhere.[110] However,
evident premeditation is inherent in robbery and
should not have been considered against the
accused.[111] Treachery could only be appreciated in
crimes against persons,[112] the same way with
disregard of respect due to sex and age which can
be considered only in cases of crimes against
persons and honor.[113]
Nevertheless, accused Edwin Morial should still be
spared the death penalty. The records would show
that he was a minor at the time of the execution of
the crime.[114] In People vs. Villagracia,[115] the Court
ruled:
In this case, the trial court failed to consider the age
of appellant Nixon Ledesma when the crime was
committed. At the time he testified on May 17, 1989,
he stated that he was only 15 years old (TSN, May
17, 1989, p. 31). No contradictory evidence was
presented by the prosecution. So, when the crime
was committed on September 23, 1987, or more
than a year before he was presented as a witness,
Nixon Ledesma was less than 15 years old.
In PEOPLE VS. LUGTO, 190 SCRA 754 [1990], we held
that the accused has the burden of proof that he was
minor at the time of the commission of the crime.
However, in People v. Tismo, 204 SCRA 535 [1991],
we upheld appellants' claim that he was 17 years old
at the time the crime was committed even without
any proof to corroborate his testimony. Considering
that the prosecution failed to present contradictory
evidence, we applied to appellant therein the
privileged mitigating circumstance of minority under
the second paragraph of Article 13 of the Revised
Penal Code.
Lugto appears to be an aberration from the long line
of decisions antedating it. From U.S. v. Bergantino, 3
Phil. 118 [1903] to People v. Ebora, 141 SCRA
282 [1986], we have consistently ruled that,
although the accused did not offer any evidence to
support his claim of minority, this fact will remain as
such, until disproved by the prosecution (See also
U.S. v. Barbicho, 13 Phil. 616 [1909]; U.S. vs. Agadas,
36 Phil. 247 [1917]; People v. Ebora, 141 SCRA
282 [1986]; People v. Bernalde, 139 SCRA
426 [1986]).
Article 294 (1) of the Revised Penal Code prescribes
the penalty of reclusion perpetua to death, when by
reason or on occasion of the robbery, the crime of
homicide shall have been committed. As the
aggravating circumstance of dwelling attended the
commission thereof, the greater penalty, i.e., death,
shall be imposed[116] upon appellants Nonelito
Abiñon and Leonardo Morial.
However, appellant Edwin Morial, who was over 15
but under 18 years of age at the time of the
commission of the crime, is entitled to the privileged
mitigating circumstance of minority. Accordingly,
the penalty next lower,[117] i.e., reclusion temporal,
shall be imposed upon him in its maximum
period,[118] there being one aggravating
circumstance (dwelling).
Said appellant is further entitled to the benefits of
the Indeterminate Sentence Law.[119] Under Section
1 thereof, the court shall sentence the accused to an
indeterminate sentence the maximum term of
which shall be that which, in view of the attending
circumstances, could be properly imposed under
the rules of the Revised Penal Code, and the
minimum which shall be within the range of the
penalty next lower to that prescribed in the Code for
the offense. Thus, appellant Edwin Morial is hereby
sentenced to an indeterminate penalty of ten (10)
years and one (1) day of prision mayor as minimum
to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal as maximum.
As regards the civil liability of appellants, the award
of P60,000.00 to he heirs of each victim as moral
damages is hereby reduced to P50,000.00 each, in
conformity with recent jurisprudence.[120]
Four members of the Court maintain their position SO ORDERED.
that Republic Act No. 7659, insofar as it prescribes
the death penalty, is unconstitutional; nevertheless, Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug,
they submit to the ruling of the Court, by majority Kapunan, Mendoza, Panganiban, Pardo, Buena,
vote, that the law is constitutional and the death Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr.,
penalty should be imposed accordingly. JJ., concur. Quisumbing, J., out of town on O.B.
Gutierrez, J., on leave.
WHEREFORE, finding the accused guilty beyond
*
reasonable doubt of the crime of "Robbery with Also appears as "Abiñon" in the records.
[1]
Records, p. 1.
Homicide," with the aggravating circumstance of [2]
TSN, March 29, 1996, pp. 2-12.
dwelling, Leonardo Morial and Nonelito Abiñon are [3]
TSN, June 17,1996, pp. 2-9.
hereby sentenced to suffer the penalty of death by [4]
TSN, March 29,1996, pp. 10-11.
lethal injection, while Edwin Morial, on account of [5]
TSN, June 17,1996, p. 10.
[6]
his minority, is hereby sentenced to the TSN, April 16, 1996, pp. 3-9. The stones were marked as
Exhibit "A."
indeterminate penalty of from ten (10) years and [7]
TSN, June 17, 1996, pp.11-14.
one (1) day of prision mayor as minimum, to [8]
TSN, April 16, 1996, pp. 5-12. The extra-judicial confession
seventeen (17) years, four (4) months and one (1) was marked as Exhibit "B."
day of reclusion temporal as maximum. The accused [9]
TSN, April 18, 1996, pp. 3-10.
[10]
are likewise sentenced, jointly and severally, to: Exhibits "C" and "D."
[11]
TSN, October 4, 1996, pp. 2-12, 29-32.
[12]
TSN, October 9, 1996, pp. 2-13.
(1) indemnify the heirs of Paula Bandibas in the [13]
TSN, November 13, 1996, pp. 2-8.
amount of Fifty Thousand (P50,000.00) Pesos as [14]
TSN, October 4, 1996, p. 14; TSN, October 9, 1996, pp. 13-
death indemnity; 15.
[15]
TSN, October 4, 1996, pp. 14-17; TSN, October 9, 1996, pp.
(2) indemnify the heirs of Albert Bandibas in the 14-15; TSN, November 13, 1996, pp. 9-10.
[16]
Id., at 16-17; TSN, October 9, 1996, pp. 15-16.
amount of Fifty Thousand (P50,000.00) Pesos as [17]
TSN, November 13, 1996, pp. 9-11.
death indemnity; [18]
TSN, October 4, 1996, pp. 17-19; TSN, October 9, 1996, p.
17; TSN, November 13, 1996, p. 11.
(3) indemnify the heirs of Paula Bandibas and Albert [19]
TSN, October 9, 1996, p. 39.
Bandibas in the amount of Fifty Thousand [20]
TSN, November 13, 1996, p. 12.
[21]
(P50,000.00) Pesos for each death as moral TSN, October 4, 1996, p. 19.
[22]
damages; TSN, October 9, 1996, p. 21.
[23]
TSN, November 13, 1996, pp. 13-14.
[24]
TSN, October 9, 1996, p. 22; TSN, November 13, 1996, p.
(4) indemnify Benjamin Morial in the amount of 15.
Twenty Thousand Five Hundred Forty-Six [25]
TSN, October 4, 1996, p. 21.
(P20,546.00) pesos as actual damages for funeral, [26]
Id., at 20-23; TSN, October 9, 1996, p. 22-24; TSN,
burial and wake expenses; November 13, 1996, pp. 15-19.
[27]
TSN, October 9, 1996, pp. 24-25; TSN, November 13, 1996,
(5) restitute Benjamin Morial the amount of Eleven p. 19.
[28]
Id. at 26-31.
Thousand (P11,000.00) Pesos representing the [29]
TSN, November 13, 1996, pp. 4-36; TSN, November 18,
stolen money. 1996, pp. 3-28.
[30]
TSN, October 4, 1996, pp. 26-28.
Cost against accused-appellants. [31]
TSN, November 21, 1996, pp. 4-8.
[32]
TSN, November 22, 1996, pp. 3-7.
[33]
In accordance with Section 25 of Republic Act No. TSN, November 21, 1996, p. 9.
[34]
7659, amending Article 83 of the Revised Penal TSN, November 22, 1996, pp. 7-9.
[35]
Rollo, pp. 54-55.
Code, upon the finality of this decision, let the [36]
People vs. De la Cruz, 279 SCRA 245 (1997), cited in People
records of this case be forthwith forwarded to the vs. Tan, 286 SCRA 207 (1998). See also PEOPLE VS. ANDAN,
Office of the President for the possible exercise of 269 SCRA 95 (1997).
[37]
executive clemency or pardoning power. PEOPLE VS. ANDAN, supra.
[38] [86]
CONSTITUTION, ARTICLE III, SECTION 12 (1). TSN, 09 October 1996, p. 8.
[39] [87]
See People vs. Paule, 261 SCRA 649 (1996). TSN, 13 November 1996, p. 6.
[40] [88]
It has not escaped this Court's attention that the police TSN, 04 October 1996, p. 8.
[89]
investigator informed Leonardo Morial of his rights only after People vs. Pedres, 306 SCRA 579 (1999); People vs.
he allegedly admitted his participation in the killings. Monsayac, 307 SCRA 560 (1999); People vs. Velasco, 307
Apparently, a "preliminary" questioning had been SCRA 684 (1999).
[90]
undertaken. (TSN, April 17 , 1996, pp. 4-5.) People vs. Reduca, 301 SCRA 516 (1999); People vs. Verde,
[41]
TSN, April 17, 1996, pp. 4-5. 302 SCRA 690 (1999).
[42] [91]
TSN, September 10, 1996, p. 6. TSN, 19 October 1996, pp. 37-38.
[43] [92]
Id., at 3-21. TSN, 18 November 1996, p. 26.
[44] [93]
TSN, April 17, 1996, p. 6. TSN, 04 October 1996, p. 31.
[45] [94]
Id., at 13. TSN, 13 November 1996, p. 12.
[46] [95]
Id., at 14. TSN, 09 October 1996, p. 18.
[47] [96]
Id., at 11. TSN, 04 November 1996, p. 19.
[48] [97]
Id., at 15. TSN, Flora Bandibas, 21 November 1996.
[49] [98]
People vs. De la Cruz, supra. People vs. Sumallo, 307 SCRA 521 (1999); People vs. Faco,
[50]
244 SCRA 425 (1995). 314 SCRA 505 (1999).
[51] [99]
TSN, April 17, 1996, p. 16. TSN, Benjamin Morial, 17 June 1996, p. 8.
[52] [100]
TSN, September 10, 1996, p. 15. Id., at 11.
[53] [101]
People vs. Paule, supra. Id., at 8.
[54] [102]
People vs. Labtan, 320 SCRA 140 (1999), citing People vs. Id., at 9.
[103]
Bacamante, 248 SCRA 47 (1995). People vs. Nava, 306 SCRA 15 (1999).
[55] [104]
An Act Defining Certain Rights of Persons Arrested, People vs. Manes, 303 SCRA 231 (1999); People vs.
Detained or under Custodial Investigation as well as the Macahia, 307 SCRA 404 (1999); People vs. Lotoc, 307 SCRA
Duties of the Arresting, Detaining, and Investigating Officers 471 (1999).
[105]
and Providing Penalties for violations thereof. People vs. Antonio, 303 SCRA 414 (1999).
[56] [106]
251 SCRA 626 (1995). See People vs. Nuñez, 276 SCRA 9 (1997).
[57] [107]
TSN, September 10, 1996, pp. 5-6. TSN, Gabriel Guilao, 29 March 1996, p. 9.
[58] [108]
People vs. Olivarez, 299 SCRA 635 (1998). Id., at 9-10
[59] [109]
244 SCRA 135 (1995). People vs. Dizon, 320 SCRA 513 (1999).
[60] [110]
CONSTITUTION, ARTICLE III, SECTION 12 (3). People vs. Molina, 311 SCRA 517 (1999); People vs. Biñas,
[61]
RULES OF COURT, RULE 130, SECTION 26. 320 SCRA 22 (1999).
[62] [111]
See People vs. Camat, 256 SCRA 52 (1996). PEOPLE VS. PULIDO, 85 Phil. 695 (1950).
[63] [112]
People vs. Gonzales, 311 SCRA 547 (1999). People vs. Ramos, C.A., 470. G. 1913, cited in I Reyes, The
[64]
TSN, Gabriel Guilao, 29 March 1996, pp. 6-10. Revised Penal Code, 1993 ed., p. 143.
[65] [113]
TSN, Nonelito Abenion, 04 October 1996, p. 7. People vs. Padilla, 301 SCRA 265 (1999).
[66] [114]
TSN, Gabriel Guilao, 29 March 1996, p. 5. Records, p. 494.
[67] [115]
People vs. Carpio, 282 SCRA 23 (1997). 226 SCRA 381 (1993).
[68] [116]
People vs. Cario, 288 SCRA 404 (1998). Art. 63, Revised Penal Code.
[69] [117]
PEOPLE VS. NAREDO, 276 SCRA 489 (1997). Article 68 (2), Revised Penal Code.
[70] [118]
TSN, Gabriel Guilao, 29 March 1996, p. 10. Article 64 (3), Revised Penal Code.
[71] [119]
Id., at 14. People vs. Cempron, 187 SCRA 248 (1990).
[72] [120]
Id., at 31. People vs. Bantilao, 314 SCRA 380 (1999); People vs.
[73]
Id., at 10-11. Calabroso, et al., G.R. No. 126368, 14 September
[74]
TSN, Benjamin Morial, 17 June 1996, p. 10. 2000; PEOPLE VS. EMOY, et al., G.R. No. 109760, 27
[75]
Id., at 13. September 2000; People vs. Temarel, et al., G.R. No. 97138-
[76]
TSN, Patricio Abenion, 25 September 1996, p. 5. 38, 28 September 2000.
[77]
Id., at 9.
[78]
Id., at 12.
[79]
Id., at 40-41.
[80]
TSN, Gabriel Guilao, 29 March 1996, p. 8.
[81]
TSN, 25 September 1996, p. 47.
[82]
TSN, 26 September 1996, p. 17.
[83]
People vs. Garcia, 288 SCRA 382 (1988), citing Ibabao vs.
People, 132 SCRA 216 (1984); See also Molina vs. People, 259
SCRA 138 (1996); PEOPLE VS. SORIA, 262 SCRA 679 (1996).
[84]
TSN, Benjamin Morial, 17 June 1996, p. 6.
[85]
TSN, 04 October 1996, p. 36.
 EN BANC
G.R. No. 139333 - July 18, 2002
PEOPLE OF THE PHILIPPINES, appellee, vs. CRISPIN
VELARDE y BANDOJO, appellant.
PANGANIBAN, J.:
A municipal mayor cannot be considered a
competent and independent counsel qualified to
assist a person under custodial investigation. Hence,
the extrajudicial confession taken from the accused
with His Honor as counsel is inadmissible in
evidence. Without this confession, the remaining
evidence, which is circumstantial, fails the test of
moral certainty. Hence, acquittal is inevitable.
The Case
For automatic review by this Court is the
Decision1 dated February 12, 1999, issued by the
Regional Trial Court (RTC) of Malolos, Bulacan
(Branch 11), finding Crispin Velarde y Bandojo guilty
beyond reasonable doubt of rape with homicide in
Criminal Case No. 773-M-97. The decretal portion of
the Decision reads as follows:
"WHEREFORE, this Court finds the accused CRISPIN
B. VELARDE GUILTY beyond reasonable doubt of
Rape with Homicide and hereby sentences him to
suffer the supreme penalty of Death and to
indemnify the heirs of the victim the amount
of P100,000.00 as actual damages."2
The Information3 against appellant dated June 13,
1997, reads as follows:
"That on or about the 12th day of May, 1997, in the
[M]unicipality of Guiguinto, [P]rovince of Bulacan,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with
lewd designs, and by means of violence and
intimidation, did then and there wilfully, unlawfully
and feloniously have carnal knowledge of one
Brenda Candelaria, a minor who is eight (8) years of
age, against her will and consent.
"That on the occasion and by reason of said rape,
the above-named accused, with intent to kill, did
then and there wilfully, unlawfully and feloniously
attack, assault and strangle said Brenda Candelaria
in the neck which directly caused her death."4
When arraigned on July 1, 1997, appellant, assisted
by his counsel de oficio,5 pleaded not guilty.6 In due
course, he was tried and found guilty.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG)
summarized the evidence for the prosecution as
follows:7
"On May 11, 1997 at around 10:00 o'clock in the
morning, Brenda Candelaria, an eight year old child,
together with her friend Melanie Sangalang, seven
years of age, was on board a pedicab driven by
appellant. Upon reaching the house of Melanie, said
appellant told Melanie to alight on the pretext that
her mother might look for her. Melanie obeyed
leaving Brenda inside the pedicab with appellant
continuing his driving.
"In the afternoon of the same day, appellant and
Brenda were seen together by Flora Bonganay in
front of the latter's store located near the church in
Tikay riding the same pedicab.
"Later on, Angelita Robles while waiting for a ride
saw appellant already alone emerging from a place
near Doña Pilar Homes Subdivision. Angelita noticed
something strange in appellant's actuation as he
was uneasy, haggard looking with his hair
disheveled.
"The following day, May 12, 1997, the naked lifeless
body of Brenda Candelaria was found in a grassy
vacant lot along the Cagayan Valley Highway in Sta.
Rita, Guiguinto, Bulacan near the Doña Pilar Homes
Subdivision. Recovered beside her body were a
rubber slipper, blood stained white sando, a blue
and white striped t-shirt and a shoe string.
"Dr. Dominic Aguda, a medico-legal officer of the
NBI assigned at Region III, conducted a post mortem
examination on the body of the victim. His findings
revealed that Brenda Candelaria was raped and
strangled to death. According to the doctor, the
victim died of asphyxia by manual strangulation.
"On the other hand, based on the leads furnished by
witnesses, appellant was tagged as suspect and was
brought to the Malolos Bulacan Police Station for
investigation.
"During his investigation, appellant, after being
informed of his constitutional rights in the presence
of Atty. Danilo Domingo whom he agreed to act as
his counsel, voluntarily admitted having raped and
killed the victim Brenda Candelaria. Accordingly, his
extrajudicial confession was reduced to writing
which was signed by him.
"It was on the bases of the foregoing occurrences
that the corresponding Information for rape with
homicide was filed against appellant with the
Regional Trial Court." (Citations omitted)
Version of the Defense
On the other hand, appellant presents his version of
the incident as follows:8
"Accused Crispin Velarde DENIED having raped and
killed Brenda Candelaria. Thus,
CONT. OF DIRECT-EXAM.
OF CRISPIN VELARDE BY:
Atty. de Leon:
Q Mr. Velarde, do we understand from you that
you did not rape Brenda?
A No, sir.
Q You did not kill Brenda?
A No, sir.
Q Brenda is your first cousin?
A Yes, sir.
Q Your mother and the mother of Brenda are
sisters, is it not?
A Yes, sir.
Q If you did not rape Brenda, if you did not kill
Brenda and Brenda is your first cousin, your mother
and the mother of Brenda are sisters, why were you
accused of rape and killing Brenda?
Atty. Villacorta:
Objection, Your Honor, the question calls for an
opinion.
Court:
Never mind, it is a matter of defense.
Witness:
A I was only suspected (n[a]pagbintangan), sir.
Atty. De Leon:
Q According to some witnesses who testified for
the prosecution, they have seen you and Brenda
riding in a tricycle?
Atty. Villacorta:
No, no, not tricycle, Your Honor, pedicab:
Court:
After the incident?
Atty. De Leon:
No, no, several days before the incident. Not exactly
the day of the incident. I modify the question by
adding several days before the alleged incident.
Witness:
A No, sir, that is not true.
Atty. De Leon:
Q And, there was a witness who testified here
that she has seen you riding on a jeep perspiring . . .
Court:
Give the specific place.
Atty. De Leon:
Q The witness has seen the accused about to
ride the jeep perspiring as if you have committed a
crime is it true?
A I do not know anything about it, sir.
Q But according to that witness, you were
carrying a basket, is it true?
A No, sir.
Atty. De Leon:
That's all, Your Honor please.
Atty. Villacorta:
May we be allowed to conduct the cross considering
...
Court:
(to witness)
Q Have there been an occasion when Brenda
took a ride in your tricycle you were driving?
A None, Your Honor.
Q Never?
A No, Your Honor.
Court:
Cross next time?
Atty. Villacorta:
Yes, Your Honor.
"Accused declared on June 19, 1998 that he has
been detained since May 12, 1997 or more than one
(1) year already because he was told that he was the
one who committed a crime against his cousin
Brenda Candelaria. According to him, on the night of
May 11, 1997 he was arrested while selling balot in
Tikay, Malolos, Bulacan, by four (4) Barangay
Officials. When said Barangay Officials asked him
where he brought the child Brenda Candelaria, he
told them he 'don't know' [sic]. He did not insist
answering them 'because I don't know what they
were asking about the child'. He just went with them
because if he will not go with them 'di nila lulubayan
and pamilya ko'. He was brought to the Barangay
Hall of Barangay Tikay, Malolos, Bulacan. He was
kicked and mauled by the father and brothers of
Brenda. The father of Brenda is his uncle and was
the one who hurted [sic] him. He was boxed several
times, hitting him in all parts of his body. While he
was being boxed, he told them to stop because he
did not know about the incident. Inside the
Barangay Hall he was 'nilusob'), was stabbed by the
eldest son (Ruel Candelaria) hitting him in his right
leg. The person who stabbed him even said: 'Tabla
tabla na lang kami' meaning 'manos na lang kami sa
nangyari'. He did not answer because he did not
know anything about the incident. Besides, he was
already 'bugbog sarado', meaning his body was
aching and it was painful. His hands were even tied
at his back with a handkerchief by a former
neighbor. After hurting him inside the Barangay Hall
he was made to sign by one of the Barangay
Officials. He signed without reading what he signed
because he cannot read very well. After signing, the
members of the Barangay including the Barangay
Captain, brought him to the Municipal Building on
the midnight of May 12, 1997. Upon reaching the
Municipal Building he was brought to the Provincial
Hospital where his wounds were treated and
[s]urtured [sic]. He was not however given
medicine. After one (1) hour he was returned to the
Municipal Building by the Barangay Officials. He was
placed inside the jail where he was mauled by
around eight (8) inmates. They were asking him
where the child was, but he told them he did not
know. They were insisting that he admit or to
confess but he answered he did not know anything.
According to him 'marami pong pahirap na ginawa
sa akin. Mayruon pong koriente, mayruon pong
saksak sa puwit'. He could not talk because he was
already 'hirap na hirap na'. Such hurting acts were
done several days, six (6) times a day. His body was
even pounded by a piece of wood hitting him in his
back because he was on a sitting position. He could
not speak because of the 'sobrang kirot ng katawan
ko.'
"He further declared that in the morning of May 11,
1997, he was in the basket ball court watching the
game. He came from their house because it was the
birthday of his mother. They heard mass in Tikay. He
is a Catholic, a Corsilista.
"The accused was candid enough to admit that the
signature appearing in Exh. M is his signature; that
Atty. Domingo is known to him because he was then
the Mayor of Malolos; that he hired or engaged the
services of Atty. Domingo; that he was also candid
enough to testify that 'wala akong alam diyan.' His
educational attainment was up to Grade four (4)
only. He claims that he does not know the police
investigator who typed the 'Sinumpaang Salaysay'
marked Exh. M." (Citations omitted)
Ruling of the Trial Court
The RTC found the existence of enough
circumstantial evidence pointing to appellant as the
culprit in the crime. It also found his written
extrajudicial confession admissible in evidence. As a
consequence, it convicted him of rape with
homicide and imposed upon him the supreme
penalty of death.
Hence, this automatic review.9
Assignment of Errors
In his Brief, appellant faults the court a quo for the
following alleged errors:10
"FIRST ASSIGNMENT OF ERROR
The trial court erred in relying merely on the weight
and sufficiency of the circumstantial evidence
adduced by the prosecution and the admissibility of
the extra-judicial confession of the accused
contained in his Sworn Statement made before the
police authorities of Malolos, Bulacan.
"SECOND ASSIGNMENT OF ERROR
The trial court erred in not relying on the weight and
sufficiency of the evidence presented by the
accused in support of his defense.
"THIRD ASSIGNMENT OF ERROR
The trial court erred in finding and declaring that the
accused himself was the culprit behind the rape-slay
of the victim Brenda Candelaria, which finding and
declaration were based on surmi[s]es and
conjectures.
"FOURTH ASSIGNMENT OF ERROR
The trial court erred in finding and declaring that the
extrajudicial confession of the accused of May 14,
1997 (Exh. H) is admissible in evidence.
"FIFTH ASSIGNMENT OF ERROR
The trial court erred in finding and declaring that
there was nothing irregular or objectionable in Atty.
Domingo's representation who is a lawyer of good
standing and being the local chief executive of
Malolos, Bulacan, to serve as counsel for the
accused.
"SIXTH ASSIGNMENT OF ERROR
The trial court erred in finding and declaring that the
confession of the accused is considered valid and
binding upon said accused.
"SEVENTH ASSIGNMENT OF ERROR
The trial court erred in not giving due credence to
the defense of the accused of denial which defense
prevails over and above the alleged circumstantial
evidence presented by the prosecution.
"EIGHT ASSIGNMENT OF ERROR
The trial court erred in finding the accused guilty
beyond reasonable doubt of rape with homicide and
sentenced him to suffer the supreme penalty of
death and to indemnify the heirs of the victim the
amount of P100,000.00 as actual damages.
"NINTH ASSIGNMENT OF ERROR
The trial court erred in not acquitting the accused of
the crime charged, with costs-de-oficio.
"TENTH ASSIGNMENT OF ERROR
The trial court erred in not ordering the release of
the accused from confinement and detention."
The issues in this case can be compressed into two:
(1) whether the extrajudicial confession of appellant
is admissible in evidence, and (2) whether the
circumstantial evidence presented by the
prosecution sufficiently proves his guilt beyond
reasonable doubt.
The Court's Ruling Q: When you were conducting . who was
conducting the investigation or the questioning?
The appeal is meritorious. A: I, sir.
Q: And who were the persons present while
First Issue: Extrajudicial Confession you were interrogating or conducting investigation
on Crispin Velarde?
Barangay tanods and officials of Barangay Tikay, A: Atty. Danilo Domingo, sir.
Municipality of Malolos arrested appellant while he Q: Will you please tell the Honorable Court
was selling balut on the night of May 11, 1997.11 He why Mayor Danilo Domingo was present during the
was subsequently brought to the Malolos Police investigation of Crispin Velarde?
Station, where he was initially incarcerated and xxx-xxx-xxx
allegedly mauled.12 On May 14, 1997, his case was A: He was the one assisting Crispin Velarde,
referred by the Malolos police to the incumbent sir.16
mayor of Malolos, Bulacan, Atty. Danilo Domingo, Yet on cross, appellant stated:
who asked that appellant be brought to him.13 Upon Q: Was Atty. Danilo Domingo the counsel or
the advice of the mayor, Velarde's written the lawyer of the accused when you took his
extrajudicial confession was taken. During the statement?
investigation, appellant was assisted by the mayor Court:
as counsel.14 Armed police officers were also Base on your perception?
present during the investigation.15 A: No, sir.
Court:
Appellant was investigated by a PNP member of the What do you mean by 'No'
Malolos Police Station, SPO4 Edilberto Almazar, who A: He is not the lawyer of Crispin Velarde, Your
testified as follows: Honor.
Court:
"Q: Mr. Witness, you said that you are a police That's how you can see it at that time?
officer of Malolos Police Station? A: Yes, Your Honor.
A: Yes, sir. Atty. Villacorta:
Q: Since when have you been connected with Q: If he is not the counsel, what was he doing
that station? there?
A: Since February 9, 1982, sir. A: He learned about the incident that's why he
Q: Up to the present? talked to the accused, sir.
A; Yes, sir. Q: Did you see Mayor Domingo talking to the
xxx-xxx-xxx accused at the time this statement was being taken
Q: What time on May 14, 1997 did you meet by you?
that Crispin Velarde? A: Yes, because the three of us were there, sir.
A: In the afternoon, sir. I cannot remember the xxx-xxx-xxx
exact time. Q: Before the statement was taken, where did
Q: Where did you meet him? Crispin Velarde come from?
A: At the Malolos Police Station, sir. Co[ur]t:
Q: Can you tell the Honorable Court the reason If you know[?]
why Crispin Velarde was in the Malolos Police A: He was inside the jail, sir.
Station? Q: Municipality of what?
A: He is the suspect in a Rape with Homicide A: Malolos, sir.
case, sir. Q: This jail, how far was it from the
xxx-xxx-xxx investigation room?
Q: What transpired during your meeting with A: Very near, sir. Just downstair because the
Crispin Velarde at Malolos Police Station? police station is located in the basement and the
A: We made investigations in his person, sir. jail was located upstairs.
xxx-xxx-xxx
Q: But no relatives of Crispin Velarde were
present during the investigation?
A: I do not remember, sir.
xxx-xxx-xxx
Atty. De Leon:
I am asking now, who were present?
A: Atty. Danilo Domingo and myself, sir.
Q: How about other policemen?
A: And the other police officers, sir.
Q: Beside you, Atty. Domingo and the accused,
there were policemen present?
A: Yes, sir.
Q: How many?
A: I cannot remember how many and who
were they, sir.
Q: During the investigation, the policemen
were armed with weapons?
A: Yes, sir."17
Appellant contends that the extrajudicial confession
taken during the investigation is inadmissible in
evidence. We agree.
Article III Section 12 (1) of the Constitution provides:
"Any person under custodial 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."
The dead body of Brenda Candelaria was found in
the Municipality of Guiguinto, Bulacan. But
appellant, a resident of Barangay Tikay, Municipality
of Malolos was brought to and detained in the
Malolos Police Station, where he was investigated
by the Malolos police.
Under the circumstances, Atty. Domingo cannot be
considered as an independent counsel. He was the
mayor of Malolos at the time. As such, he exercised
"operational supervision and control"18 over the
PNP unit in that municipality. His powers included
the utilization of the elements thereof for the
maintenance of peace and order, the prevention of
crimes, the arrest of criminal offenders and the
bringing of offenders to justice.19
As mayor of Malolos, his duties were inconsistent
with those of his responsibilities to appellant, who
was already incarcerated and tagged as the main
suspect in the rape-slay case. Serving as counsel of
appellant placed him in direct conflict with his duty
of "operational supervision and control" over the
police. "What the Constitution requires in Article III
Section 12 (1) is the presence of competent and
independent counsel, one who will effectively
undertake his client's defense without any
intervening conflict of interest."20 Evidently Atty.
Domingo, being the mayor of the place where the
investigation was taken, could not act as counsel,
independent or otherwise, of appellant.
In People v. Taliman,21 we ruled that a mayor cannot
be considered the independent lawyer referred to
by the Constitution.
"Mayor Pardo cannot be considered as an
independent counsel for accused during their
custodial investigation.
"In People vs. Culala, we held that the extrajudicial
confession of the accused-appellant was
inadmissible as he was 'assisted' by the incumbent
municipal attorney. In People vs. Bandula, we held
that a municipal attorney could not be an
independent counsel as required by the
Constitution. We reasoned that as legal officer of
the municipality, he provides legal assistance and
support to the mayor and the municipality in
carrying out the delivery of basic services to the
people, including the maintenance of peace and
order. It is therefore seriously doubted whether he
can effectively undertake the defense of the
accused without running into conflict of interests.
xxx-xxx-xxx
"If in the aforecited cases, we disregarded the extra-
judicial statements of the accused, how much more
must we do so now, given that it was the mayor
himself, and not just the provincial attorney, that
assisted accused-appellants?"22
Furthermore, the right to counsel is a fundamental
right and contemplates not just the mere presence
of a lawyer beside the accused.23 The competent
and independent lawyer so engaged should be
present "at all stages of the interview, counseling or
advising caution reasonably at every turn of the
investigation, and stopping the interrogation once in
a while either to give advice to the accused that he
may either continue, choose to remain silent or
terminate the interview. The desired role of counsel
in the process of custodial investigation is rendered
meaningless if the lawyer merely gives perfunctory
advice as opposed to a meaningful advocacy of the
rights of the person undergoing questioning. If the
advice given is so cursory as to be useless,
voluntariness is impaired."24
During the investigation, Atty. Domingo failed to act
as the independent and competent counsel
envisioned by the Constitution. He failed to give any
meaningful advice to protect the rights of appellant.
The former did not even bother to inform the latter
of the consequences of an extrajudicial confession.
It is significant to point out that, during the cross-
examination and perhaps in total confusion, the
investigator even went so far as to state that Atty.
Domingo had not acted as appellant's lawyer. If this
were so, then appellant had absolutely no counsel
when his extra-judicial confession was taken.
In whatever way we may look at the situation, it is
clear that, in palpable violation of the Constitution,
appellant was not assisted by a competent and
independent counsel during the custodial
investigation and the taking of his extra-judicial
confession. Hence, the Court is duty-bound to
disregard it.
"This Court x x x will always insist on the observance
of basic constitutional rights as a condition sine qua
non against the awesome investigative and
prosecutory powers of government. The
admonition given by this Court to government
officers, particularly those involved in law
enforcement and the administration of justice, in
the case of People v. Cuizon, where NBI agents
mishandled a drug bust operation and in so doing
violated the constitutional guarantees against
unlawful arrests and illegal searches and seizures, is
again called for and thus reiterated in the case at
bench, to wit:
"x x x. In the final analysis, we in the administration
of justice would have no right to expect ordinary
people to be law-abiding if we do not insist on the
full protection of their rights. Some lawmen,
prosecutors and judges may still tend to gloss over
an illegal search and seizure as long as the law
enforcers show the alleged evidence of the crime
regardless of the methods by which they were
obtained. This kind of attitude condones law-
breaking in the name of law enforcement. Ironically,
it only fosters the more rapid breakdown of our
system of justice, and the eventual denigration of
society. While this Court appreciates and
encourages the efforts of law enforcers to uphold
the law and to preserve the peace and security of
society, we nevertheless admonish them to act with
deliberate care and within the parameters set by the
Constitution and the law. Truly, the end never
justifies the means.25
Second Issue: Circumstantial Evidence
Circumstantial evidence would be sufficient for
conviction if (a) there is more than one
circumstance, (b) the facts from which the
inferences have been derived are proven, and (c)
the combination of all the circumstances is such that
it produces a conviction beyond reasonable doubt.
These circumstances must be consistent with one
another, and the only rational hypothesis that can
be drawn therefrom must be that the accused is
guilty. They must create a solid chain of events,
coherent and intrinsically believable, that point to
the accused -- to the exclusion of others -- as the
perpetrator of the crime; and that sufficiently
overcome thereby the presumption of innocence in
his or her favor.26
In this case, the prosecution presented the following
pieces of evidence to prove that appellant was the
perpetrator of the crime.
First, appellant was with Brenda on the morning of
May 11, 1997.27 They were also together on
McArthur Highway between three and four o'clock
in the afternoon on the same day, aboard a pedicab
coming from Industrial City and going south towards
Manila.28
Second, around five thirty in the afternoon on May
11, 1997, appellant was seen alone emerging from
Jaycee Auto Repair Shop, just beside Doña Pilar
Homes.29 He looked haggard and had disheveled
hair.30
Third, Brenda's naked, lifeless body was found at six
o'clock in the morning on May 12, 1997, on a vacant
lot in Doña Pilar Homes.31
The above set of circumstantial evidence is too
general. It is also consistent with the hypothesis that
appellant is innocent. He cannot be faulted for being
seen with Brenda on a pedicab, since the records
show that the two of them are first cousins who live
in the same house.32 He cannot be faulted, either,
for emerging near Doña Pilar Homes,33 since the
records show that he lives in Barangay Tikay,34 at
the back of which is Doña Pilar Homes.35 As
Prosecution Witness Robles testified, she also lived
in Barangay Tikay, yet she waited for a jeepney in
front of Doña Pilar Homes. Evidently, it is natural for
residents of Barangay Tikay to emerge in Doña Pilar
Homes and wait for a ride from there. Appellant
cannot be convicted based on the circumstantial
evidence which, though proven, remains
ambiguous.
The prosecution evidence leaves much to be
desired. It is too full of holes. The approximate time
of death of Brenda has not been established, other
than that she died less than 24 hours before the
autopsy. Such evidence shows that she could have
been killed on the night of May 11, 1997 or on the
early morning of May 12, 1997. By that time
appellant was already in custody and, hence, could
not have been the perpetrator. The records further
allude to a tee shirt found at the crime scene. Yet,
the prosecution failed to present it and have it
identified. Had the police officers and the
prosecution exerted more effort in identifying its
owner, a more direct link between the crime and the
perpetrator could have been established, and
reasonable doubts on his identity could have been
eased.
In case of doubt, the scales must be tipped in favor
of the accused. Circumstantial evidence as a basis
for criminal conviction should be weighed and
accepted with great caution. Jurisprudence teaches
that it is preferable for the guilty to remain
unpunished than for the innocent to suffer
unjustly36 -- in this case, to be sentenced to die by
lethal injection.
Without the extrajudicial confession, the
circumstantial evidence becomes utterly insufficient
to pass the test of moral certainty.
Although the defense of appellant -- mere denial --
is weak, this fact alone cannot justify his conviction.
The burden is on the prosecution to prove his guilt
beyond reasonable doubt, not on him to prove his
innocence. Well-entrenched in jurisprudence is the
rule that the conviction of the accused must rest,
not on the weakness of the defense, but on the
strength of the prosecution.37 The Court cannot
magnify the weakness of the defense and overlook
the prosecution's failure to discharge the onus
probandi.38
Although the prosecution adequately proved the
crime of rape with homicide in this case, it failed to
establish the identity of the perpetrator beyond
reasonable doubt. Hence, we cannot sustain
appellant's conviction. The assault on the child is
unpardonable, but this Court must uphold the
primacy of the constitutional presumption of
innocence in favor of the accused, when the
evidence at hand miserably falls short of the
quantum required to support conviction.39
WHEREFORE, the appeal is GRANTED and the
Decision of the Regional Trial Court of Bulacan in
Criminal Case No. 773-M-97 SET ASIDE.Appellant
Crispin Velarde y Bandojo is ACQUITTED on
reasonable doubt. He is ordered released
immediately from custody unless he is being held
for some other lawful cause.
The director of the Bureau of Corrections
is DIRECTED to implement this Decision forthwith
and to INFORM this Court within five (5) days from
receipt hereof of the date appellant was actually
released from confinement. Costs de oficio.
SO ORDERED. 759, July 27, 1993; People v. Peligro, 225 SCRA 65,
August 3, 1993.
Davide, Jr.*, Bellosillo, Puno, Vitug, Kapunan, 27 TSN, July 15, 1997, p. 7.

Mendoza, Quisumbing, Ynares-Santiago, Sandoval- 28 TSN, August 22, 1997, pp. 4-8.

Gutierrez, Carpio, Austria-Martinez, and Corona, 29 TSN, September 3, 1997, pp. 9-10.

JJ., concur. 30 Ibid., p. 12.

31 TSN, January 7, 1998, p. 5.
* 32 TSN, August 22, 1997, pp. 14-15.
On leave.
1 33 Also referred to in some parts of the record as
Penned by Judge Basilio R. Gabo Jr.
2 RTC Decision, p. 9; rollo, p. 37; records, p. 181. Doña Pilar Subdivision.
3 Signed by 3rd Assistant Provincial Prosecutor 34 TSN, August 1, 1997, p. 5.
35 TSN, September 3, 1997, p. 10.
Benjamin R. Caraig.
4 Rollo, p. 11; records, p. 2. 36 People v. Salangoste, 188 SCRA 422, August 8,
5 Atty. Jose P. de Leon. 1990, People v. Solis, 350 SCRA 608, January 30,
6 Order dated July 1, 1997; records, p. 12. 2001.
7 Appellee's Brief, pp. 2-4; rollo, pp. 96-98. The 37 People v. Marquita, 327 SCRA 41, March 1,

Brief was signed by Solicitor General Ricardo P.
Galvez, Asst. Solicitor General Cecilio O. Estoesta
and Solicitor Ma. Antonia Edita C. Dizon.
8 Appellant's Brief, pp. 12-14; rollo, pp. 70-72. The
Brief was signed by Atty. Jose P. de Leon.
9 This case was deemed submitted for resolution
on October 23, 2000, upon this Court's receipt of
appellant's Reply Brief.
10 Appellant's Brief, pp. 1-2; rollo, pp. 59-60.
2000; People v. Vidal, 308 SCRA 1, June 1,
1999; People v. Laguerta, 344 SCRA 453, October
30, 2000.
38 People v. Tan, 323 SCRA 30, January 21, 2000.
39 People v. Bravo, 318 SCRA 812, 825, November
22, 1999, per Gonzaga-Reyes, J.

Original in upper case.

11 TSN, June 19, 1998, pp. 9 & 10.
12 Ibid., p. 27.
13 TSN, September 12, 1997, p. 4.
14 Ibid., pp. 5-7.
15 TSN, June 19, 1998, pp. 22-23.
16 TSN, November 6, 1998, pp. 3-6.
17 Ibid., pp. 19-23.
18 51 (b), Republic Act No. 6975.
19 Ibid.
20 People v. Matos-Viduya, 189 SCRA 403, 410,

September 11, 1990, per Gutierrez, J.

21 342 SCRA 534, October 11, 2000, per Pardo, J.
22 Ibid., p. 542.
23 People v. Labtan, 320 SCRA 140, December 8,

1999.
24 People v. Deniega, 251 SCRA 626, 638, December

29, 1995, per Kapunan, J.

25 People v. Januario, 267 SCRA 608, 643, February

7, 1997, per Panganiban, J.

26 People v. Rayos, 351 SCRA 336, 344, February 7,

2001, citing People v. Ragon, 282 SCRA 90,

November 18, 1997;People v. Doro, 282 SCRA 1,
November 17, 1997; People v. Oracoy, 224 SCRA
 G.R. No. 205926 July 22, 2015
ALVIN COMERCIANTE y GONZALES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are
the Decision 2 dated October 20, 2011 and the
Resolution 3dated February 19, 2013 of the Court of
Appeals (CA) in CA-G.R. CR No. 32813, which
affirmed in toto the Judgment 4dated July 28, 2009
of the Regional Trial Court of Mandaluyong City,
Branch 213 (RTC) in Crim. Case No. MC-03-7242-D
convicting petitioner Alvin Comerciante y Gonzales
(Comerciante) of the crime of illegal Possession of
Dangerous Drugs defined and penalized under
Section 11, Article II of Republic Act No. (RA)
9165, 5 otherwise known as the Comprehensive
Dangerous Drugs Act of 2002.
The Facts
On July 31, 2003, an Information was filed before
the RTC charging Comerciante of violation of Section
11, Article II of RA 9165, to wit:
That on or about the 30th day of July 2003, in the City
of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-
named accused, not having been lawfully
authorized to possess any dangerous drugs, did then
and there willfully, unlawfully and feloniously and
knowingly have in his possession, custody and
control Two (2) heat-sealed transparent plastic
sachet (sic) each containing 0.15 gram (sic) and 0.28
gram (sic) of white crystalline substance with a total
of 0.43 grams which was found positive to the test
for Methamphetamine Hydrochloride commonly
known as "shabu", a dangerous drug.
CONTRARY TO LA W. 6
According to the prosecution, at around 10 o'clock
in the evening of July 30, 2003, Agent Eduardo
Radan (Agent Radan) of the NARCOTICS group and
P03 Bienvy Calag II (P03 Calag) were aboard a
motorcycle, patrolling the area while on their way to
visit a friend at Private Road, Barangay Hulo,
Mandaluyong City. Cruising at a speed of 30
kilometers per hour along Private Road, they
spotted, at a distance of about 10 meters, two (2)
men - later identified as Comerciante and a certain
Erick Dasilla 7 (Dasilla) - standing and showing
"improper and unpleasant movements," with one of
them handing plastic sachets to the other. Thinking
that the sachets may contain shabu, they
immediately stopped and approached Comerciante
and Dasilla At a distance of around five (5) meters,
P03 Calag introduced himself as a police officer,
arrested Comerciante and Dasilla, and confiscated
two (2) plastic sachets containing white crystalline
substance from them. A laboratory examination
later confirmed that said sachets contained
methamphetamine hydrochloride or shabu. 8
After the prosecution rested its case, Dasilla filed a
demurrer to evidence, which was granted by the
RTC, thus his acquittal. However, due to
Comerciante's failure to file his own demurrer to
evidence, the RTC considered his right to do so
waived and ordered him to present his evidence.9
In his defense, Comerciante averred that P03 Calag
was looking for a certain "Barok", who was a
notorious drug pusher in the area, when suddenly,
he and Dasilla, who were just standing in front of a
jeepney along Private Road, were arrested and
taken to a police station. There, the police officers
claimed to have confiscated illegal drugs from them
and were asked money in exchange for their
release. When they failed to accede to the demand,
they were brought to another police station to
undergo inquest proceedings, and thereafter, were
charged with illegal possession of dangerous
drugs. 10
The RTC Ruling
In. a Judgment 11 dated July 28, 2009, the RTC found
Comerciante guilty beyond reasonable doubt of
violation of Section 11, Article II of RA 9165, and
accordingly, sentenced him to suffer the penalty of
imprisonment for twelve (12) years and one (1) day
to twenty (20) years, and ordered him to pay a fine
in the amount of ₱300,000.00.12
The R TC found that P03 Calag conducted a valid
warrantless arrest on Comerciante, which yielded
two (2) plastic sachets containing shabu. In this
relation, the R TC opined that there was probable
cause to justify the warrantless arrest, considering
that P03 Calag saw, in plain view, that Comerciante
was carrying the said sachets when he decided to
approach and apprehend the latter. Further, the
RTC found that absent any proof of intent that P03
Calag was impelled by any malicious motive, he
must be presumed to have properly performed his
duty when he arrested Comerciante.13
Aggrieved, Comerciante appealed to the CA.
The CA Ruling
In a Decision 14 dated October 20, 2011 the CA
affirmed Comerciante's conviction. It held that P03
Calag had probable cause to effect the warrantless
arrest of Comerciante, given that the latter was
committing a crime in flagrante delicto; and that he
personally saw the latter exchanging plastic sachets
with Dasilla. According to the CA, this was enough to
draw a reasonable suspicion that those sachets
might be shabu, and thus, P03 Calag had every
reason to inquire on the matter right then and
there.15
Dissatisfied, Comerciante moved for
reconsideration 16 which was, however, denied in a
Resolution 17 dated February 19, 2013. Hence, this
petition. 18
The Issue before the Court
The core issue for the Court's resolution is whether
or not the CA correctly affirmed Comerciante's
conviction for violation of Section 11, Article II of RA
9165.
In his petition, Comerciante essentially contends
that P03 Carag did not effect a valid warrantless
arrest on him. Consequently, the evidence gathered
as a result of such illegal warrantless arrest, i.e., the
plastic sachets containing shabu should be rendered
inadmissible, necessarily resulting in his acquittal. 19
On the other hand, the Office of the Solicitor
General, on behalf of respondent People of the
Philippines, maintains that Comerciante's
warrantless arrest was validly made pursuant to the
"stop and frisk" rule, especially considering that he
was caught in flagrante delicto in possession of
illegal drugs. 20
The Court's Ruling
The petition is meritorious.
Section 2, Article III 21 of the Constitution mandates
that a search and seizure must be carried out
through or on the strength of a judicial warrant
predicated upon the existence of probable cause; in
the absence of such warrant, such search and
seizure becomes, as a general rule, "unreasonable"
within the meaning of said constitutional provision.
To protect people from unreasonable searches and
seizures, Section 3 (2), Article III 22 of the
Constitution provides an exclusionary rule which
instructs that evidence obtained and confiscated on
the occasion of such unreasonable searches and
seizures are deemed tainted and should be excluded
for being the proverbial fruit of a poisonous tree. In
other words, evidence obtained from unreasonable
searches and seizures shall be inadmissible in
evidence for any purpose in any proceeding. 23
The exclusionary rule is not, however, an absolute
and rigid proscription. One of the recognized
exceptions established by jurisprudence is a search
incident to a lawful arrest. 24 In this instance, the law
requires that there first be a lawful arrest before a
search can be made - the process cannot be
reversed. 25 Section 5, Rule 113 of the Revised Rules
on Criminal Procedure lays down the rules on lawful
warrantless arrests, as follows:
SEC.5. Arrest without warrant; when lawful. - A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
 committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or has escaped
while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) above,
the person arrested without a warrant shall be
forthwith delivered to the nearest police station or
jail and shall be proceeded against in accordance
with Section 7 of Rule 112.
The aforementioned provision provides three (3)
instances when a warrantless arrest may be lawfully
effected: (a) arrest of a suspect in flagrante delicto;
(b) arrest of a suspect where, based on personal
knowledge of the arresting officer, there is probable
cause that said suspect was the perpetrator of a
crime which had just been committed; ( c) arrest of
a prisoner who has escaped from custody serving
final judgment or temporarily confined during the
pendency of his case or has escaped while being
transferred from one confinement to another. 26
For a warrantless arrest under Section 5 (a) to
operate, two (2) elements must concur, namely: (a)
the person to be arrested must execute an overt act
indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and
( b) such overt act is done in the presence or within
the view of the arresting officer. 27 On the other
hand, Section 5 (b) requires for its application that
at the time of the arrest, an offense had in fact just
been committed and the arresting officer had
personal knowledge of facts indicating that the
accused had committed it.28
In both instances, the officer's personal knowledge
of the fact of the commission of an offense is
absolutely required. Under Section 5 (a), the officer
himself witnesses the crime; while in Section (b), he
knows for a fact that a crime has just been
committed. 29
A judicious review of the factual milieu of the instant
case reveals that there could have been no lawful
warrantless arrest made on Comerciante. P03 Calag
himself admitted that he was aboard a motorcycle
cruising at a speed of around 30 kilometers per hour
when he saw Comerciante and Dasilla standing
around and showing "improper and unpleasant
movements," with one of them handing plastic
sachets to the other. On the basis of the foregoing,
he decided to effect an arrest. P03 Calag's testimony
on direct examination is revelatory:
Pros. Silao:
Q: Now on July 30, 2003 around 10:00 o'clock in the
evening, kindly tell the court where were you?
A: We were then conducting our patrol on a
motorbike ma' am.
xxxx
Q: And who were with you while you were
patrolling?
A: Eduardo Radan, Ma' am.
Q: And who is this Eduardo Radan?
A: He is an agent of the Narcotics Group, ma'am.
Q: While you were along Private Road, Hulo,
Mandaluyong City, what unusual incident that
happened if any?
A: We spotted somebody who was then as if
handing a plastic sachet to someone.
xxxx
Q: Now how far were you when you saw this
incident from these two male persons you already
identified?
A: About ten (10) meters away ma'am.
Q: What were their positions in relation to you when
you saw them in that particular act?
A: They were quite facing me then.
0: What was the speed of your motorcycle when you
were traversing this Private Road, Hulo,
Mandaluyong City?
A: About thirty (30) kilometers per hour, ma'am.
Q: And who was driving the motorcycle?
A: Eduardo Radan, ma'am.
Q: When you spotted them as if handing something
to each other, what did you do?
A: We stopped ma'am.
Q: And how far were you from them when you
stopped, more or less?
A: We passed by them for a short distance before
we stopped ma'am.
Q: And after you passed by them and you said you
stopped, what was the reaction of these two male
persons?
A: They were surprised, ma'am.
xxxx
Q: And what was their reaction when you said you
introduced yourself as police officer?
A: They were surprised.
Q: When you say "nabigla" what was their reaction
that made you say that they were surprised?
A: They were stunned.
Q: After they were stunned, what did you do next,
police officer?
A: I arrested them, ma' am. I invited them.
Q: What did you say to them? How did you invite
them? In short, napakasimple Lang ng tanong ko sa
yo eh. Did you say anything?
Court:
Mr. Witness, stop making unnecessary movements,
just listens.
Pros. Silao: Are you fit to testify? May sakit ka ba o
wala? Witness: Wala po.
Pros. Silao: Eh, bakit di ka makapagsalita?
Court: You keep touching your eyes. Just relax.
Answer the question, ano sinabi mo sa kanila?
Pros. Silao: Are you fit to testify? Wala ka bang sakit?
Witness: Wala po.
xxxx
Q: From what portion of his body, I am referring to
Alvin Comerciante did you recover the plastic
sachet?
A: From his hand ma'am.
Q: Left or right hand?
Pros. Silao: You cannot recall? Hindi mo matandaan.
Sabihin mo Kung Hindi mo matandaan, no problem.
Kaliwa, kanan or you cannot recall? 30
(Emphases and underscoring supplied)
On the basis of such testimony, the Court finds it
highly implausible that P03 Calag, even assuming
that he has perfect vision, would be able to identify
with reasonable accuracy - especially from a
distance of around 10 meters, and while aboard a
motorcycle cruising at a speed of 30 kilometers per
hour - miniscule amounts of white crystalline
substance inside two (2) very small plastic sachets
held by Comerciante. The Court also notes that no
other overt act could be properly attributed to
Comerciante as to rouse suspicion in the mind of
P03 Calag that the former had just committed, was
committing, or was about to commit a crime. Verily,
the acts of standing around with a companion and
handing over something to the latter cannot in any
way be considered criminal acts. In fact, even if
Comerciante and his companion were showing
"improper and unpleasant movements" as put by
P03 Calag, the same would not have been sufficient
in order to effect a lawful warrantless arrest under
Section 5 (a), Rule 113 of the Revised Rules on
Criminal Procedure. 31 That his reasonable suspicion
bolstered by (a) the fact that he had seen his fellow
officers arrest persons in possession of shabu; and
(b) his trainings and seminars on illegal drugs when
he was still assigned in the province are insufficient
to create a conclusion that what he purportedly saw
in Comerciante was indeed shabu. 32
Neither has the prosecution established that the
rigorous conditions set forth in Section 5 (b), Rule
113, have been complied with, i.e., that an offense
had in fact just been committed and the arresting
officer had personal knowledge of facts indicating
that the accused had committed it. As already
discussed, the factual backdrop of the instant case
failed to show that P03 Calag had personal
knowledge that a crime had been indisputably
committed by Comerciante. Verily, it is not enough
that the arresting officer had reasonable ground to
believe that the accused had just committed a
crime; a crime must, in fact, have been committed
first, which does not obtain in this case. 33
In this relation, the Court finds respondent's
assertion that there was a valid "stop and frisk"
search made on Comerciante untenable. In People
v. Cogaed, 34 the Court had an opportunity to
exhaustively explain "stop and frisk" searches:
"Stop and frisk" searches (sometimes referred to as
Terry searches) are necessary for law
enforcement.1a\^/phi1 That is, law enforcers
should be given the legal arsenal to prevent the
commission of offenses. However, this should be
balanced with the need to protect the privacy of
citizens in accordance with Article III, Section 2 of
the Constitution.
The balance lies in the concept of "suspiciousness"
present where the police officer finds himself or
herself in. This may be undoubtedly based on the
experience of the police officer. Experienced police
officers have personal experience dealing with
criminals and criminal behavior. Hence, they should
have the ability to discern - based on facts that they
themselves observe - whether an individual is acting
in a suspicious manner. Clearly, a basic criterion
would be that the police officer, with his or her
personal knowledge, must observe the facts leading
to the suspicion of an illicit act.
xxxx
Normally, "stop and frisk" searches do not give the
law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of
Appeals, one of the earliest cases adopting the "stop
and frisk" doctrine in Philippine jurisprudence, this
court approximated the suspicious circumstances as
probable cause:
The probable cause is that when the petitioner
acted suspiciously and attempted to flee with the
buri bag there was a probable cause that he was
concealing something illegal in the bag and it was
the right and duty of the police officers to inspect
the same.
For warrantless searches, probable cause was
defined as "a reasonable ground of suspicion
supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with
which he is charged.
Malacat v. Court of Appeals clarifies the
requirement further. It does not have to be
probable cause, but it cannot be mere suspicion. It
has to be a genuine reason to serve the purposes of
the "stop and frisk" exception:
Other notable points of Terry are that while
probable cause is not required to conduct a "stop
and frisk," it nevertheless holds that mere suspicion
or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to
warrant the belief that the person detained has
weapons concealed about him.
In his dissent for Esquillo v. People, Justice Bersamin
reminds us that police officers must not rely on a
single suspicious circumstance. There should be
"presence of more than one seemingly innocent
activity, which, taken together, warranted a
reasonable inference of criminal activity." The
Constitution prohibits "umeasonable searches and
seizures." Certainly, reliance on only one suspicious
circumstance or none at all will not result in a
reasonable search. [35]] (Emphases and
underscoring supplied)
In this case, the Court reiterates that Comerciante' s
acts of standing around with a companion and
handing over something to the latter do not
constitute criminal acts.1âwphi1 These
circumstances are not enough to create a
reasonable inference of criminal activity which
would constitute a "genuine reason" for P03 Calag
to conduct a "stop and frisk" search on the former.
In this light, the "stop and frisk" search made on
Comerciante should be deemed unlawful.
In sum, there was neither a valid warrantless arrest
nor a valid "stop and frisk" search made on
Comerciante. As such, the shabu purportedly seized
from him is rendered inadmissible in evidence for
being the proverbial fruit of the poisonous tree.
Since the confiscated shabu is the very corpus delicti
of the crime charged, Comerciante must necessarily
be acquitted and exonerated from all criminal
liability.
WHEREFORE, the petition is GRANTED. Accordingly,
'the Decision dated October 20, 2011 and the
Resolution dated February 19, 2013 of the Court of
Appeals in CA-G.R. CR No. 32813 are hereby
REVERSED and SET ASIDE. Accordingly, petitioner
Alvin Comerciante y Gonzales is hereby ACQUITTED
of the crime of violating Section 11, Article II of
Republic Act No. 9165. The Director of the Bureau of describing the place to be searched and the persons
Corrections is ordered to cause his immediate or things to be seized.
release, unless he is being lawfully held for any other 22 Section 3 (2), Article III of the Constitution states:

reason. Section 3. xx xx
(2) Any evidence obtained in violation of this or the
SO ORDERED. preceding section shall be inadmissible for any
purpose in any proceeding.
1 23 See Ambre v. People, 692 Phil. 681, 693 (2012).
Rollo, pp. 9-30.
2 24 Id., citing People v. Delos Reyes, 672 Phil. 77, 108-
Id. at 34-49. Penned by Associate Justice Noel G.
Tijam with Associate Justices Ricardo R.Rosario and 109 (2011).
25 Malacat v. CA, 347 Phil. 462, 480 (1997); citations
Leoncia R. Dimagiba concurring.
3 Id. at 69-72. omitted.
4 Promulgated on September 4, 2009 and penned by 26 See id. at 479.
27 People v. Villareal, G.R.No. 201363, March 18,
Judge Carlos A. Valenzuela; id. at 81-94.
5 Entitled "AN ACT INSTITUTING THE 2013, 693 SCRA 549, 556, citing Valdez v. People,
COMPREHENSIVE DANGEROUS DRUGS ACT OF 563 Phil. 934, 947 (2007).
28 Id. at 556, citing People v. Cuizon, 326 Phil. 345
2002, REPEALING REPUBLIC ACT NO. 6425,
OTHERWISE KNOWN AS THE DANGEROUS DRUGS (1996).
29 Id. at 557.
ACT OF 1972, AS AMENDED, PROVIDING FUNDS
30 Rollo, pp. 17-20.
THEREFOR, AND FOR OTHER PURPOSES" (approved
31 See People v. Villareal, supra note, 27. See also
June 7, 2002).
6 Rollo, p. 78. Malacat v. CA, supra note, 25, where the Court
7 Varies throughout the records. The variations are invalidated a warrantless arrest made to the
"Erick Dasillo" and "Erick Dacillo." See rol/o, pp. 13, accused who, according to police officers, "were
84, 85, 86, 129, and 130. acting suspiciously with '[t]heir eyes ... moving very
8 Id. at 36-37. fast."'
9 Id. at 37. 32 See id.
10 Id. at 38. See also id. at 85-87. 33 See id. at 558-559.
11 Id. at 81-94. 34 See G.R. No. 200334, July 30, 2014.
12 Id. at 93. 35 See id.; citations omitted.
13 Id. at 87-93.
14 Id. at 34-49.
15 Id. at 40-48.
16 See Urgent Motion for Reconsideration dated

November 10, 2011; id. at 50-67.

17 Id. at 69-72.
18 Id. at 9-32.
19 See Petition; id. at 16-29.
20 See Comment; id. at 133-137.
21 Section 2, Article III of the Constitution states:

Section 2. The right of the people to be secure in

their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
 G.R. No. 20938 January 11, 2016
ERWIN LIBO-ON DELA CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
Routine baggage inspections conducted by port
authorities, although done without search warrants,
are not unreasonable searches per se.
Constitutional provisions protecting privacy should
not be so literally understood so as to deny
reasonable safeguards to ensure the safety of the
traveling public.
For resolution is a Petition for Review on
Certiorari1 assailing the Decision2 dated September
28, 2012 and the Resolution3 dated August 23, 2013
of the Court of Appeals, Cebu City.4 The Court of
Appeals affirmed5 the trial court’s
6
Judgment finding petitioner Erwin Libo-on Dela
Cruz (Dela Cruz) guilty beyond reasonable doubt of
possessing unlicensed firearms under Commission
on Elections Resolution No. 77647 in relation to
Section 2618 of Batas Pambansa Blg. 8819 during the
2007 election period.10
Dela Cruz was an on-the-job trainee of an inter-
island vessel.11 He frequently traveled, "coming
back and forth taking a vessel."12 At around 12:00
noon of May 11, 2007, Dela Cruz was at a pier of the
Cebu Domestic Port to go home to Iloilo.13 While
buying a ticket, he allegedly left his bag on the floor
with a porter.14 It took him around 15 minutes to
purchase a ticket.15
Dela Cruz then proceeded to the entrance of the
terminal and placed his bag on the x-ray scanning
machine for inspection.16 The operator of the x-ray
machine saw firearms inside Dela Cruz’s bag.17
Cutie Pie Flores (Flores) was the x-ray machine
operator-on-duty on May 11, 2007.18 She saw the
impression of what appeared to be three (3)
firearms inside Dela Cruz’s bag.19 Upon seeing the
suspected firearms, she called the attention of port
personnel Archie Igot (Igot) who was the baggage
inspector then.20
Igot asked Dela Cruz whether he was the owner of
the bag.21 Dela Cruz answered Igot in the affirmative
and consented to Igot’s manual inspection of the
bag.22
"Port Police Officer Adolfo Abregana [(Officer
Abregana)] was on duty at the terminal of the Cebu
Domestic Port in Pier 1-G when his attention was
called by . . . Igot."23 Igot told Officer Abregana that
there were firearms in a bag owned by a certain
person.24 Igot then pointed to the person.25 That
person was later identified as Dela Cruz.26
Dela Cruz admitted that he was owner of the
bag.27 The bag was then inspected and the following
items were found inside: three (3) revolvers; NBI
clearance; seaman’s book; other personal items;
and four (4) live ammunitions placed inside the
cylinder.28 When asked whether he had the proper
documents for the firearms, Dela Cruz answered in
the negative.29
Dela Cruz was then arrested and informed of his
violation of a crime punishable by law.30 He was also
informed of his constitutional rights.31
In the Information dated November 19, 2003, Dela
Cruz was charged with violation of Republic Act No.
8294 for illegal possession of firearms:32
Criminal Case No. CBU -80084
That on or about the 11th day of May 2007, at about
12:45 p.m. in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the
said accused, with the deliberate intent and without
being authorized by law, did then and there possess
and carry outside his residence one (1) Cal. 38 Simith
[sic] & Wesson revolver without serial number; one
(1) .22 Smith & Wesson Magnum revolver without
serial number; one (1) North American Black Widow
magnum revolver without serial number and four
rounds of live ammunitions for cal. 38 without first
securing the necessary license to possess and permit
to carry from the proper authorities.
CONTRARY TO LAW.33
Subsequently, another Information was filed
charging Dela Cruz with the violation of Commission
on Elections Resolution No. 7764, in relation to
Section 261 of Batas Pambansa Blg. 881:34
Criminal Case No. CBU 80085
That on or about the 11th day of May 2007, at about
12:45 in the afternoon, which is within the election
period for the May 14, 2007 National and Local
Elections, in the City of Cebu, Philippines and within
the jurisdiction of this Honorable Court, the said
accused, with deliberate intent, did then and there
possess and carry outside his residence the
following:
One (1) cal. .38 Simith [sic] & Wesson
revolver without serial number;
One (1) cal. .22 Smith & Wesson Magnum
revolver without serial number;
One (1) North American Black Widow
magnum revolver without serial number and
four (4) rounds of live ammunitions for cal.
38.
CONTRARY TO LAW.35
Dela Cruz entered a plea of not guilty to both
charges during arraignment.36
After trial, Branch 12 of the Regional Trial Court,
Cebu City found Dela Cruz guilty beyond reasonable
doubt of violating the Gun Ban under Commission
on Elections Resolution No. 7764, in relation to
Section 261 of Batas Pambansa Blg. 881 in Criminal
Case No. CBU 80085.37 Dela Cruz was sentenced to
suffer imprisonment of one (1) year with
disqualification from holding public office and the
right to suffrage.38
According to the trial court, the prosecution was
able to prove beyond reasonable doubt that Dela
Cruz committed illegal possession of firearms.39 It
proved the following elements: "(a) the existence of
the subject firearm and (b) the fact that the accused
who owned or possessed it does not have the
license or permit to possess the same."40 The
prosecution presented the firearms and live
ammunitions found in Dela Cruz’s possession.41 It
also presented three (3) prosecution witnesses who
testified that the firearms were found inside Dela
Cruz’s bag.42 The prosecution also presented a
Certification that Dela Cruz did not file any
application for license to possess a firearm, and he
was not given authority to carry a firearm outside
his residence.43
The trial court also held that the search conducted
by the port authorities was reasonable and, thus,
valid:44
Given the circumstances obtaining here, the court
finds the search conducted by the port authorities
reasonable and, therefore, not violative of the
accused’s constitutional rights. Hence, when the
search of the bag of the accused revealed the
firearms and ammunitions, accused is deemed to
have been caught in flagrante delicto, justifying his
arrest even without a warrant under Section 5(a),
Rule 113 of the Rules of Criminal Procedure. The
firearms and ammunitions obtained in the course of
such valid search are thus admissible as evidence
against [the] accused.45
The trial court did not give credence to Dela Cruz’s
claim that the firearms were "planted" inside his bag
by the porter or anyone who could have accessed
his bag while he was buying a ticket.46 According to
the trial court, Dela Cruz’s argument was "easy to
fabricate, but terribly difficult to disprove."47 Dela
Cruz also did not show improper motive on the part
of the prosecution witnesses to discredit their
testimonies.48
The trial court dismissed the case for violation of
Republic Act No. 8294.49 It held that "Republic Act
No. 8294 penalizes simple illegal possession of
firearms, provided that the person arrested
committed ‘no other crime.’"50Dela Cruz, who had
been charged with illegal possession of firearms,
was also charged with violating the Gun Ban under
Commission on Elections Resolution No. 7764.51
The dispositive portion of the trial court’s
Consolidated Judgment reads:
WHEREFORE, the Court finds the accused guilty
beyond reasonable doubt of violation of COMELEC
Resolution No. 7764 in relation to Section 261 of BP
Blg. 881 in Criminal Case No. CBU-80085, and
hereby sentences him to suffer an imprisonment for
a period of one (1) year, and to suffer
disqualification to hold public office and deprivation
of the right to suffrage.
While Criminal Case No. CBU-80084 for Violation of
RA 8294 is hereby DISMISSED. Accordingly, the cash
bond posted by accused therein for his provisional
liberty is hereby ordered cancelled and released to
said accused.
The subject firearms (Exhs. "H", "I" & "J"), and the
live ammunitions (Exhs. "K to K-2"") shall, however,
remain in custodia legis for proper disposition of the
appropriate government agency.
SO ORDERED.52 (Emphasis in the original)
On appeal, the Court of Appeals affirmed the trial
court’s Judgment.53 It held that the defense failed to
show that the prosecution witnesses were moved
by improper motive; thus, their testimonies are
entitled to full faith and credit.54The acts of
government authorities were found to be regular.55
The Court of Appeals did not find Dela Cruz’s
defense of denial meritorious.56 "Denial as a
defense has been viewed upon with disfavor by the
courts due to the ease with which it can be
concocted."57 Dela Cruz did not present any
evidence "to show that he had authority to carry
outside of residence firearms and ammunition
during the period of effectivity of the Gun Ban
[during] election time."58 The prosecution was able
to prove Dela Cruz’s guilt beyond reasonable doubt.
The dispositive portion of the assailed Decision
provides:
WHEREFORE, premises considered, the appeal is
hereby DENIED. The assailed January 27, 2010
Consolidated Judgment of the Regional Trial Court
(RTC), Branch 12 of Cebu City in Criminal Case CBU-
59434 is hereby AFFIRMED. Costs on accused-
appellant.
SO ORDERED.59 (Emphasis in the original)
Dela Cruz filed a Motion for
60
Reconsideration, which was denied by the Court
of Appeals in its Resolution dated August 23, 2013.61
Dela Cruz filed this Petition on November 4,
2013.62 In the Resolution63 dated December 9, 2013,
this court required respondent, through the Office
of the Solicitor General, to submit its Comment on
the Petition. Respondent submitted its
64
Comment on March 6, 2014, which this court
noted in the Resolution65 dated March 19, 2014.
Dela Cruz claims that he was an on-the-job trainee
for an inter-island vessel.66 He was "well[-
]acquainted with [the] inspection scheme [at the]
ports."67 He would not have risked placing
prohibited items such as unlicensed firearms inside
his luggage knowing fully the consequences of such
an action.68
According to Dela Cruz, when he arrived at the port
on May 11, 2007, he left his luggage with a porter to
buy a ticket.69 "A considerable time of fifteen
minutes went by before he could secure the ticket
while his luggage was left sitting on the floor with
only the porter standing beside it."70 He claims that
someone must have placed the unlicensed firearms
inside his bag during the period he was away from
it.71 He was surprised when his attention was called
by the x-ray machine operator after the firearms
were detected.72
Considering the circumstances, Dela Cruz argues
that there was no voluntary waiver against
warrantless search:73
In petitioner’s case, it may well be said that, with the
circumstances attending the search of his luggage,
he had no actual intention to relinquish his right
against warrantless searches. He knew in all honest
belief that when his luggage would pass through the
routine x-ray examination, nothing incriminating
would be recovered. It was out of that innocent
confidence that he allowed the examination of his
luggage. . . . [H]e believed that no incriminating
evidence w[ould] be found. He knew he did not
place those items. But what is strikingly unique
about his situation is that a considerable time
interval lapsed, creating an opportunity for
someone else to place inside his luggage those
incriminating items.74 (Emphasis in the original)
Respondent argues that there was a valid waiver of
Dela Cruz’s right to unreasonable search and
seizure, thus warranting his conviction.75 Dela Cruz
was "caught in flagrante delicto carrying three (3)
revolvers and four (4) live ammunitions when his
bag went through the x-ray machine in the Cebu
Domestic Port on May 11, 2007, well within the
election period."76 The firearms were seized during
a routine baggage x-ray at the port of Cebu, a
common seaport security procedure.77
According to respondent, this case is similar to valid
warrantless searches and seizures conducted by
airport personnel pursuant to routine airport
security procedures.78
Records are also clear that Dela Cruz voluntarily
waived his right to unreasonable searches and
seizure.79 The trial court found that Dela Cruz
voluntarily gave his consent to the search.80
Dela Cruz’s claim that his bag was switched is also
baseless.81 The witnesses categorically testified that
Dela Cruz was "in possession of the bag before it
went through the x-ray machine, and he was also in
possession of the same bag that contained the
firearms when he was apprehended."82
Dela Cruz raised the lone issue of "whether the
Court of Appeals gravely erred in finding [him] guilty
beyond reasonable doubt of the crime charged
despite the failure of the prosecution to establish his
guilt beyond reasonable doubt[.]"83
The issues for resolution in this case are:
First, whether petitioner Erwin Libo-on Dela Cruz
was in possession of the illegal firearms within the
meaning of the Commission on Elections Resolution
No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881;
Second, whether petitioner waived his right against
unreasonable searches and seizures; and
Lastly, assuming that there was no waiver, whether
there was a valid search and seizure in this case.
We deny the Petition.
I
The present criminal case was brought to this court
under Rule 45 of the Rules of Court. The penalty
imposed on petitioner by the trial court is material
in determining the mode of appeal to this court. A
petition for review on certiorari under Rule 45 must
be differentiated from appeals under Rule 124,
Section 1384 involving cases where the lower court
imposed on the accused the penalty of reclusion
perpetua, life imprisonment, or, previously, death.85
In Mercado v. People:86
Where the Court of Appeals finds that the
imposable penalty in a criminal case brought to it on
appeal is at least reclusion perpetua, death or life
imprisonment, then it should impose such penalty,
refrain from entering judgment thereon, certify the
case and elevate the entire records to this Court for
review. This will obviate the unnecessary, pointless
and time-wasting shuttling of criminal cases
between this Court and the Court of Appeals, for by
then this Court will acquire jurisdiction over the case
from the very inception and can, without bothering
the Court of Appeals which has fully completed the
exercise of its jurisdiction, do justice in the case.
On the other hand, where the Court of Appeals
imposes a penalty less than reclusion perpetua, a
review of the case may be had only by petition for
review on certiorari under Rule 45 where only errors
or questions of law may be raised.87 (Emphasis
supplied, citations omitted)
It is settled that in petitions for review on certiorari,
only questions of law are reviewed by this
court.88 The rule that only questions of law may be
raised in a petition for review under Rule 45 is based
on sound and practical policy considerations
stemming from the differing natures of a question
of law and a question of fact:
A question of law exists when the doubt or
controversy concerns the correct application of law
or jurisprudence to a certain set of facts; or when
the issue does not call for an examination of the
probative value of the evidence presented, the truth
or falsehood of facts being admitted. A question of
fact exists when the doubt or difference arises as to
the truth or falsehood of facts or when the query
invites calibration of the whole evidence
considering mainly the credibility of the witnesses,
the existence and relevancy of specific surrounding
circumstances as well as their relation to each other
and to the whole, and the probability of the
situation.89
Concomitantly, factual findings of the lower courts
as affirmed by the Court of Appeals are binding on
this court.90
In contrast, an appeal in a criminal case "throws the
whole case open for review[.]"91 The underlying
principle is that errors in an appealed judgment,
even if not specifically assigned, may be
corrected motu propio by the court if the
consideration of these errors is necessary to arrive
at a just resolution of the case.92 Nevertheless, "the
right to appeal is neither a natural right nor a part of
due process, it being merely a statutory privilege
which may be exercised only in the manner
provided for by law[.]"93
II
Petitioner argues that the firearms found in his bag
were not his. Thus, he could not be liable for
possessing the contraband. Key to the resolution of
this case is whether petitioner possessed firearms
without the necessary authorization from the
Commission on Elections. Petitioner was charged
under special laws: Republic Act No. 8294 and
Commission on Elections Resolution No. 7764, in
relation to Section 261 of Batas Pambansa Blg. 881.
The law applicable is Section 2(a) of Commission on
Elections Resolution No. 7764, which provides:
SECTION 2. Prohibitions. During the election period
from January 14, 2007 it shall be unlawful for:
a. Any person, including those possessing a permit
to carry firearms outside of residence or place of
business, to bear, carry or transport firearms or
other deadly weapons in public places including any
building, street, park, private vehicle or public
conveyance. For the purpose firearm includes
airgun, while deadly weapons include hand
grenades or other explosives, except pyrotechnics[.]
Section 261(q) of Batas Pambansa Blg. 881 states:
Section 261. Prohibited Acts. – The following shall
be guilty of an election offense:
....
(q) Carrying firearms outside residence or place of
business. – Any person who, although possessing a
permit to carry firearms, carries any firearms
outside his residence or place of business during the
election period, unless authorized in writing by the
Commission: Provided, That a motor vehicle, water
or air craft shall not be considered a residence or
place of business or extension hereof. (Par. (l), Id.)
This prohibition shall not apply to cashiers and
disbursing officers while in the performance of their
duties or to persons who by nature of their official
duties, profession, business or occupation
habitually carry large sums of money or valuables.
For a full understanding of the nature of the
constitutional rights involved, we will examine three
(3) points of alleged intrusion into the right to
privacy of petitioner: first, when petitioner gave his
bag for x-ray scanning to port authorities; second,
when the baggage inspector opened petitioner’s
bag and called the Port Authority Police; and third,
when the police officer opened the bag to search,
retrieve, and seize the firearms and ammunition.
III
The first point of intrusion occurred when petitioner
presented his bag for inspection to port personnel—
the x-ray machine operator and baggage inspector
manning the x-ray machine station.94 With regard to
searches and seizures, the standard imposed on
private persons is different from that imposed on
state agents or authorized government authorities.
In People v. Marti,95 the private forwarding and
shipping company, following standard operating
procedure, opened packages sent by accused Andre
Marti for shipment to Zurich, Switzerland and
detected a peculiar odor from the packages.96 The
representative from the company found dried
marijuana leaves in the packages.97 He reported the
matter to the National Bureau of Investigation and
brought the samples to the Narcotics Section of the
Bureau for laboratory examination.98 Agents from
the National Bureau of Investigation subsequently
took custody of the illegal drugs.99 Andre Marti was
charged with and was found guilty of violating
Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act.100
This court held that there was no unreasonable
search or seizure.101 The evidence obtained against
the accused was not procured by the state acting
through its police officers or authorized government
agencies.102 The Bill of Rights does not govern
relationships between individuals; it cannot be
invoked against the acts of private individuals:103
If the search is made upon the request of law
enforcers, a warrant must generally be first secured
if it is to pass the test of constitutionality. However,
if the search is made at the behest or initiative of the
proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without
the intervention of police authorities, the right
against unreasonable search and seizure cannot be
invoked for only the act of private individual, not the
law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot
be extended to acts committed by private
individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.104
Hence, by virtue of Marti, items seized pursuant to
a reasonable search conducted by private persons
are not covered by the exclusionary rule.105
To determine whether the intrusion by the port
personnel in this case was committed by private or
public persons, we revisit the history and
organizational structure of the Philippine Ports
Authority.
Port security measures are consistent with the
country’s aim to develop transportation and trade
in conjunction with national and economic growth.
In 1974, the Philippine Ports Authority was created
for the reorganization of port administration and
operation functions.106 The Philippine Ports
Authority’s Charter was later revised through
Presidential Decree No. 857. The Revised Charter
provided that the Authority may:
after consultation with relevant Government
agencies, make rules or regulations for the planning,
development, construction, maintenance, control,
supervision and management of any Port or Port
District and the services to be provided therein, and
for the maintenance of good order therein, and
generally for carrying out the process of this
Decree.107
The Philippine Ports Authority was subsequently
given police authority through Executive Order No.
513,108 which provides:
Sec. 2. Section 6 is hereby amended by adding a new
paragraph to read as follows:
Section 6-c. Police Authority – The Authority shall
have such police authority within the ports
administered by it as may be necessary to carry out
its powers and functions and attain its purposes and
objectives, without prejudice to the exercise of the
functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police
authority shall include the following:
a) To provide security to cargoes, port
equipment, structure, facilities, personnel
and documents: Provided, however, That in
ports of entry, physical security to import
 and export cargoes shall be exercised jointly
with the Bureau of Customs;
b) To regulate the entry to, exit from, and
movement within the port, of persons and
vehicles, as well as movement within the port
of watercraft;
c) To maintain peace and order inside the
port, in coordination with local police
authorities;
d) To supervise private security agencies
operating within the port area; and
e) To enforce rules and regulations
promulgated by the Authority pursuant to
law. (Emphasis supplied)
In 1992, the Cebu Port Authority was created to
specifically administer all ports located in the
Province of Cebu.109The Cebu Port Authority is a
"public-benefit corporation . . . under the
supervision of the Department of Transportation
and Communications for purposes of policy
coordination."110 Control of the ports was
transferred to the Cebu Port Authority on January 1,
1996, when its operations officially began.111
In 2004, the Office for Transportation Security was
designated as the "single authority responsible for
the security of the transportation systems [in] the
country[.]"112 Its powers and functions included
providing security measures for all transportation
systems in the country:
b. Exercise operational control and
supervision over all units of law enforcement
agencies and agency personnel providing
security services in the transportation
systems, except for motor vehicles in land
transportation, jointly with the heads of the
bureaus or agencies to which the units or
personnel organically belong or are
assigned;
c. Exercise responsibility for transportation
security operations including, but not limited
to, security screening of passengers,
baggage and cargoes, and hiring, retention,
training and testing of security screening
personnel;
d. In coordination with the appropriate
agencies and/or instrumentalities of the
government, formulate, develop,
promulgate and implement comprehensive
security plans, policies, measures, strategies
and programs to ably and decisively deal
with any threat to the security of
transportation systems, and continually
review, assess and upgrade such security
plans, policies, measures, strategies and
programs, to improve and enhance
transportation security and ensure the
adequacy of these security measures;
e. Examine and audit the performance of
transportation security personnel,
equipment and facilities, and, thereafter,
establish, on a continuing basis,
performance standards for such personnel,
equipment and facilities, including for the
training of personnel;
f. Prepare a security manual/master plan or
programme which shall prescribe the rules
and regulations for the efficient and safe
operation of all transportation systems,
including standards for security screening
procedures, prior screening or profiling of
individuals for the issuance of security access
passes, and determination of levels of
security clearances for personnel of the OTS,
the DOTC and its attached agencies, and
other agencies of the government;
g. Prescribe security and safety standards for
all transportation systems in accordance
with existing laws, rules, regulations and
international conventions;
h. Subject to the approval of the Secretary of
the DOTC, issue Transportation Security
Regulations/Rules and amend, rescind or
revise such regulations or rules as may be
necessary for the security of the
 transportation systems of the
113
country[.] (Emphasis supplied)
The Cebu Port Authority has adopted security
measures imposed by the Office for Transportation
Security, including the National Security Programme
for Sea Transport and Maritime Infrastructure.114
The Cebu Port Authority is clothed with authority by
the state to oversee the security of persons and
vehicles within its ports. While there is a distinction
between port personnel and port police officers in
this case, considering that port personnel are not
necessarily law enforcers, both should be
considered agents of government under Article III of
the Constitution. The actions of port personnel
during routine security checks at ports have the
color of a state-related function.
In People v. Malngan,115 barangay tanod and the
Barangay Chairman were deemed as law
enforcement officers for purposes of applying
Article III of the Constitution.116 In People v.
Lauga,117 this court held that a "bantay bayan," in
relation to the authority to conduct a custodial
investigation under Article III, Section 12118 of the
Constitution, "has the color of a state-related
function and objective insofar as the entitlement of
a suspect to his constitutional rights[.]"119
Thus, with port security personnel’s functions
having the color of state-related functions and
deemed agents of government, Marti is
inapplicable in the present case. Nevertheless,
searches pursuant to port security measures are not
unreasonable per se. The security measures of x-ray
scanning and inspection in domestic ports are akin
to routine security procedures in airports.
In People v. Suzuki,120 the accused "entered the pre-
departure area of the Bacolod Airport
Terminal."121 He was "bound for Manila via flight
No. 132 of the Philippine Airlines and was carrying a
small traveling bag and a box marked ‘Bongbong’s
piaya.’"122 The accused "proceeded to the ‘walk-
through metal detector,’ a machine which produces
a red light and an alarm once it detects the presence
of metallic substance or object."123 "Thereupon, the
red light switched on and the alarm sounded,
signifying the presence of metallic substance either
in his person or in the box he was carrying."124 When
the accused was asked to open the content of the
box, he answered "open, open."125 Several packs of
dried marijuana fruiting tops were then found inside
the box.126 Suzuki argued that the box was only
given to him as "pasalubong" by a certain Pinky,
whom he had sexual relations with the night
before.127 He did not know the contents of the
box.128
This court in Suzuki found that the search conducted
on the accused was a valid exception to the
prohibition against warrantless searches as it was
pursuant to a routine airport security procedure:129
It is axiomatic that a reasonable search is not to be
determined by any fixed formula but is to be
resolved according to the facts of each case. Given
the circumstances obtaining here, we find the
search conducted by the airport authorities
reasonable and, therefore, not violative of his
constitutional rights. Hence, when the search of the
box of piaya revealed several marijuana fruiting
tops, appellant is deemed to have been caught
in flagrante delicto, justifying his arrest even
without a warrant under Section 5(a), Rule 113 of
the Rules of Criminal Procedure. The packs of
marijuana obtained in the course of such valid
search are thus admissible as evidence against
appellant.130(Citations omitted)
The reason behind it is that there is a reasonable
reduced expectation of privacy when coming into
airports or ports of travel:
Persons may lose the protection of the search and
seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack
of subjective expectation of privacy, which
expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport
security procedures. With increased concern over
airplane hijacking and terrorism has come increased
security at the nation’s airports. Passengers
attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage as
well as checked luggage are routinely subjected to
x-ray scans. Should these procedures suggest the
presence of suspicious objects, physical searches are
conducted to determine what the objects are. There
is little question that such searches are reasonable,
given their minimal intrusiveness, the gravity of the
safety interests involved, and the reduced privacy
expectations associated with airline travel. Indeed,
travelers are often notified through airport public
address systems, signs and notices in their airline
tickets that they are subject to search and, if any
prohibited materials or substances are found, such
would be subject to seizure. These announcements
place passengers on notice that ordinary
constitutional protections against warrantless
searches and seizures do not apply to routine airport
procedures.131 (Emphasis supplied, citations
omitted)
This rationale was reiterated more recently in Sales
v. People.132 This court in Sales upheld the validity of
the search conducted as part of the routine security
check at the old Manila Domestic Airport—now
Terminal 1 of the Ninoy Aquino International
Airport.133
Port authorities were acting within their duties and
functions when it used x-ray scanning machines for
inspection of passengers’ bags.134 When the results
of the x-ray scan revealed the existence of firearms
in the bag, the port authorities had probable cause
to conduct a search of petitioner’s bag. Notably,
petitioner did not contest the results of the x-ray
scan.
IV
Was the search rendered unreasonable at the
second point of intrusion—when the baggage
inspector opened petitioner’s bag and called the
attention of the port police officer?
We rule in the negative.
The port personnel’s actions proceed from the
authority and policy to ensure the safety of travelers
and vehicles within the port. At this point, petitioner
already submitted himself and his belongings to
inspection by placing his bag in the x-ray scanning
machine.
The presentation of petitioner’s bag for x-ray
scanning was voluntary. Petitioner had the choice of
whether to present the bag or not. He had the
option not to travel if he did not want his bag
scanned or inspected. X-ray machine scanning and
actual inspection upon showing of probable cause
that a crime is being or has been committed are part
of reasonable security regulations to safeguard the
passengers passing through ports or terminals.
Probable cause is:
reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to
induce a cautious man to believe that the person
accused is guilty of the offense charged. It refers to
the existence of such facts and circumstances that
can lead a reasonably discreet and prudent man to
believe that an offense has been committed, and
that the items, articles or objects sought in
connection with said offense or subject to seizure
and destruction by law are in the place to be
searched.135
It is not too burdensome to be considered as an
affront to an ordinary person’s right to travel if
weighed against the safety of all passengers and the
security in the port facility.
As one philosopher said, the balance between
authority and an individual’s liberty may be confined
within the harm that the individual may cause
others. John Stuart Mill’s "harm principle" provides:
[T]he sole end for which mankind are warranted,
individually or collectively, in interfering with the
liberty of action of any of their number, is self-
protection. That the only purpose for which power
can be rightfully exercised over any member of a
civilised community, against his will, is to prevent
harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot
rightfully be compelled to do or forbear because it
will be better for him to do so, because it will make
him happier, because, in the opinions of others, to
do so would be wise, or even right. These are good
reasons for remonstrating with him, or reasoning
with him, or persuading him, or entreating him, but
not for compelling him, or visiting him with any evil
in case he do otherwise. To justify that, the conduct
from which it is desired to deter him must be
calculated to produce evil to someone else. The only
part of the conduct of any one, for which he is
amenable to society, is that which concerns others.
In the part which merely concerns himself, his
independence is, of right, absolute. Over himself,
over his own body and mind, the individual is
sovereign.136
Any perceived curtailment of liberty due to the
presentation of person and effects for port security
measures is a permissible intrusion to privacy when
measured against the possible harm to society
caused by lawless persons.
V Prosecutor Narido:
A third point of intrusion to petitioner’s right to
privacy occurred during petitioner’s submission to
port security measures. This court should determine
whether the requirements for a valid waiver against
unreasonable searches and seizures were met.
After detection of the firearms through the x-ray
scanning machine and inspection by the baggage
inspector, Officer Abregana was called to inspect
petitioner’s bag.
The Constitution safeguards a person’s right against
unreasonable searches and seizures.137 A
warrantless search is presumed to be
unreasonable.138 However, this court lays down the
exceptions where warrantless searches are deemed
legitimate: (1) warrantless search incidental to a
lawful arrest; (2) seizure in "plain view"; (3) search
of a moving vehicle; (4) consented warrantless
search; (5) customs search; (6) stop and frisk; and (7)
exigent and emergency circumstances.139
In Caballes v. Court of Appeals:140
In case of consented searches or waiver of the
constitutional guarantee against obtrusive searches,
it is fundamental that to constitute a waiver, it must
first appear that (1) the right exists; (2) that the
person involved had knowledge, either actual or
constructive, of the existence of such right; and (3)
the said person had an actual intention to relinquish
the right.141
Petitioner anchors his case on the claim that he did
not validly consent to the search conducted by the
port authorities. He argues that he did not have an
actual intention to relinquish his right against a
warrantless search.
In cases involving the waiver of the right against
unreasonable searches and seizures, events must be
weighed in its entirety. The trial court’s findings
show that petitioner presented his bag for scanning
in the x-ray machine.142When his bag went through
the x-ray machine and the firearms were detected,
he voluntarily submitted his bag for inspection to
the port authorities:
Q. What did he tell you?
A. I asked him if I can check his bag?
Q. What was his response?
A. He consented and cooperated. I checked the
bag.143
It was after the port personnel’s inspection that
Officer Abregana’s attention was called and the bag
was inspected anew with petitioner’s consent.144
"[A]ppellate courts accord the highest respect to the
assessment of witnesses’ credibility by the trial
court, because the latter was in a better position to
observe their demeanor and deportment on the
witness stand."145 We do not find anything
erroneous as to the findings of fact of both the trial
court and the Court of Appeals.
There was probable cause that petitioner was
committing a crime leading to the search of his
personal effects. As the trial court found:
Given the circumstances obtaining here, the court
finds the search conducted by the port authorities
reasonable and, therefore, not violative of the
accused’s constitutional rights. Hence, when the
search of the bag of the accused revealed the
firearms and ammunitions, accused is deemed to
have been caught in flagrante delicto, justifying his
arrest even without a warrant under Section 5(a),
Rule 113 of the Rules of Criminal Procedure. The
firearms and ammunitions obtained in the course of
such valid search are thus admissible as evidence
against [the] accused.146
Similar to the accused in People v. Kagui
Malasugui147 and People v. Omaweng148 who
permitted authorities to search their persons and
premises without a warrant, petitioner is now
precluded from claiming an invalid warrantless
search when he voluntarily submitted to the search
on his person. In addition, petitioner’s consent to
the search at the domestic port was not given under
intimidating or coercive circumstances.149
This case should be differentiated from that
of Aniag, Jr. v. Commission on Elections,150 which
involved the search of a moving vehicle at a
checkpoint.151 In that case, there was no implied
acquiescence to the search since the checkpoint set
up by the police authorities was conducted without
proper consultation, and it left motorists without
any choice except to subject themselves to the
checkpoint:
It may be argued that the seeming acquiescence of
Arellano to the search constitutes an implied waiver
of petitioner’s right to question the reasonableness
of the search of the vehicle and the seizure of the
firearms.
While Resolution No. 2327 authorized the setting up
of checkpoints, it however stressed that "guidelines
shall be made to ensure that no infringement of civil
and political rights results from the implementation
of this authority," and that "the places and manner
of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban
and Security Personnel created under Sec. 5,
Resolution No. 2323." The facts show that PNP
installed the checkpoint at about five o’clock in the
afternoon of 13 January 1992. The search was made
soon thereafter, or thirty minutes later. It was not
shown that news of impending checkpoints without
necessarily giving their locations, and the reason for
the same have been announced in the media to
forewarn the citizens. Nor did the informal
checkpoint that afternoon carry signs informing the
public of the purpose of its operation. As a result,
motorists passing that place did not have any inkling
whatsoever about the reason behind the instant
exercise. With the authorities in control to stop and
search passing vehicles, the motorists did not have
any choice but to submit to the PNP’s scrutiny.
Otherwise, any attempt to turnabout albeit innocent
would raise suspicion and provide probable cause
for the police to arrest the motorist and to conduct
an extensive search of his vehicle.
In the case of petitioner, only his driver was at the
car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not
know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the
operation, driver Arellano being alone and a mere
employee of petitioner could not have marshalled
the strength and the courage to protest against the
extensive search conducted in the vehicle. In such
scenario, the "implied acquiescence," if there was
any, could not be more than a mere passive
conformity on Arellano’s part to the search, and
"consent" given under intimidating or coercive
circumstances is no consent within the purview of
the constitutional guaranty.152 (Emphasis supplied,
citations omitted)
We also cannot subscribe to petitioner’s argument
that there was no valid consent to the search
because his consent was premised on his belief that
there were no prohibited items in his bag. The
defendant’s belief that no incriminating evidence
would be found does not automatically negate valid
consent to the search when incriminating items are
found. His or her belief must be measured against
the totality of the circumstances.153 Again,
petitioner voluntarily submitted himself to port
security measures and, as he claimed during trial, he
was familiar with the security measures since he had
been traveling back and forth through the sea port.
Consequently, we find respondent’s argument that
the present petition falls under a valid consented
search and during routine port security procedures
meritorious. The search conducted on petitioner’s
bag is valid.
VI
The consented search conducted on petitioner’s bag
is different from a customs search.
Customs searches, as exception to the requirement
of a valid search warrant, are allowed when
"persons exercising police authority under the
customs law . . . effect search and seizure . . . in the
enforcement of customs laws."154The Tariff and
Customs Code provides the authority for such
warrantless search, as this court ruled in Papa, et al.
v. Mago, et al.:155
The Code authorizes persons having police authority
under Section 2203 of the Tariff and Customs Code
to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling
house; and also to inspect, search and examine any
vessel or aircraft and any trunk, package, box or
envelope or any person on board, or stop and search
and examine any vehicle, beast or person suspected
of holding or conveying any dutiable or prohibited
article introduced into the Philippines contrary to
law, without mentioning the need of a search
warrant in said cases.156 (Citation omitted)
The ruling in Papa was echoed in Salvador v.
People,157 in that the state’s policy to combat
smuggling must not lose to the difficulties posed by
the debate on whether the state has the duty to
accord constitutional protection to dutiable articles
on which duty has not been paid, as with a person’s
papers and/or effects.158
Hence, to be a valid customs search, the
requirements are: (1) the person/s conducting the
search was/were exercising police authority under
customs law; (2) the search was for the enforcement
of customs law; and (3) the place searched is not a
dwelling place or house. Here, the facts reveal that
the search was part of routine port security
measures. The search was not conducted by
persons authorized under customs law. It was also
not motivated by the provisions of the Tariff and
Customs Code or other customs laws. Although
customs searches usually occur within ports or
terminals, it is important that the search must be for
the enforcement of customs laws.
VII
In violations of the Gun Ban, the accused must be "in
possession of a firearm . . . outside of his residence
within the period of the election gun ban imposed
by the COMELEC sans authority[.]"159
In Abenes v. Court of Appeals,160 this court
enumerated the elements for a violation of the Gun
Ban: "1) the person is bearing, carrying, or
transporting firearms or other deadly weapons; 2)
such possession occurs during the election period;
and, 3) the weapon is carried in a public
place."161 This court also ruled that under the
Omnibus Election Code, the burden to show that he
or she has a written authority to possess a firearm is
on the accused.162
We find that the prosecution was able to establish
all the requisites for violation of the Gun Ban. The
firearms were found inside petitioner’s bag.
Petitioner did not present any valid authorization to
carry the firearms outside his residence during the
period designated by the Commission on Elections.
He was carrying the firearms in the Cebu Domestic
Port, which was a public place.
However, petitioner raised the following
circumstances in his defense: (1) that he was a
frequent traveler and was, thus, knowledgeable
about the security measures at the terminal; (2) that
he left his bag with a porter for a certain amount of
time; and (3) that he voluntarily put his bag on the
x-ray machine for voluntary inspection. All these
circumstances were left uncontested by the
prosecution.
This court is now asked to determine whether these
circumstances are sufficient to raise reasonable
doubt on petitioner’s guilt.
When petitioner claimed that someone planted the
illegal firearms in his bag, the burden of evidence to
prove this allegation shifted to him. The shift in the
burden of evidence does not equate to the reversal
of the presumption of innocence. In People v.
Villanueva,163 this court discussed the difference
between burden of proof and burden of evidence,
and when the burden of evidence shifts to the
accused:
Indeed, in criminal cases, the prosecution bears the
onus to prove beyond reasonable doubt not only
the commission of the crime but likewise to
establish, with the same quantum of proof, the
identity of the person or persons responsible
therefor. This burden of proof does not shift to the
defense but remains in the prosecution throughout
the trial. However, when the prosecution has
succeeded in discharging the burden of proof by
presenting evidence sufficient to convince the court
of the truth of the allegations in the information or
has established a prima facie case against the
accused, the burden of evidence shifts to the
accused making it incumbent upon him to adduce
evidence in order to meet and nullify, if not to
overthrow, that prima facie case.164 (Emphasis
supplied, citation omitted)
Petitioner failed to negate the prosecution’s
evidence that he had animus possidendi or the
intent to possess the illegal firearms. In People v. De
Gracia,165 this court elucidated on the concept
of animus possidendi and the importance of the
intent to commit an act prohibited by law as
differentiated from criminal intent.166 The accused
was charged with the qualified offense of illegal
possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 resulting from
the coup d’etat staged in 1989 by the Reform Armed
Forces Movement - Soldiers of the Filipino
People.167 This court held that the actions of the
accused established his intent to possess the illegal
firearms:
When the crime is punished by a special law, as a
rule, intent to commit the crime is not necessary. It
is sufficient that the offender has the intent to
perpetrate the act prohibited by the special
law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person
may not have consciously intended to commit a
crime; but he did intend to commit an act, and that
act is, by the very nature of things, the crime itself.
In the first (intent to commit the crime), there must
be criminal intent; in the second (intent to
perpetrate the act) it is enough that the prohibited
act is done freely and consciously.
In the present case, a distinction should be made
between criminal intent and intent to
possess. While mere possession, without criminal
intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that
there was animus possidendi or an intent to possess
on the part of the accused. Such intent to possess is,
however, without regard to any other criminal or
felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent
here refers to the intention of the accused to
commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person
under Presidential Decree No. 1866. Hence, in order
that one may be found guilty of a violation of the
decree, it is sufficient that the accused had no
authority or license to possess a firearm, and that he
intended to possess the same, even if such
possession was made in good faith and without
criminal intent.
Concomitantly, a temporary, incidental, casual, or
harmless possession or control of a firearm cannot
be considered a violation of a statute prohibiting the
possession of this kind of weapon, such as
Presidential Decree No. 1866. Thus, although there
is physical or constructive possession, for as long as
the animus possidendi is absent, there is no offense
committed.
Coming now to the case before us, there is no doubt
in our minds that appellant De Gracia is indeed
guilty of having intentionally possessed several
firearms, explosives and ammunition without the
requisite license or authority therefor. Prosecution
witness Sgt. Oscar Abenia categorically testified that
he was the first one to enter the Eurocar Sales Office
when the military operatives raided the same, and
he saw De Gracia standing in the room and holding
the several explosives marked in evidence as
Exhibits D to D-4. At first, appellant denied any
knowledge about the explosives. Then, he
alternatively contended that his act of guarding the
explosives for and in behalf of Col. Matillano does
not constitute illegal possession thereof because
there was no intent on his part to possess the same,
since he was merely employed as an errand boy of
Col. Matillano. His pretension of impersonal or
indifferent material possession does not and cannot
inspire credence.
Animus possidendi is a state of mind which may be
determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the
accused and the surrounding circumstances. What
exists in the realm of thought is often disclosed in the
range of action. It is not controverted that appellant
De Gracia is a former soldier, having served with the
Philippine Constabulary prior to his separation from
the service for going on absence without leave
(AWOL). We do not hesitate, therefore, to believe
and conclude that he is familiar with and
knowledgeable about the dynamites, "molotov"
bombs, and various kinds of ammunition which
were confiscated by the military from his
possession. As a former soldier, it would be absurd
for him not to know anything about the dangerous
uses and power of these weapons. A fortiori, he
cannot feign ignorance on the import of having in
his possession such a large quantity of explosives
and ammunition. Furthermore, the place where the
explosives were found is not a military camp or
office, nor one where such items can ordinarily but
lawfully be stored, as in a gun store, an arsenal or
armory. Even an ordinarily prudent man would be
put on guard and be suspicious if he finds articles of
this nature in a place intended to carry out the
business of selling cars and which has nothing to do
at all, directly or indirectly, with the trade of
firearms and ammunition.168 (Emphasis supplied,
citations omitted)
The disquisition in De Gracia on the distinction
between criminal intent and intent to possess,
which is relevant to convictions for illegal possession
of firearms, was reiterated in Del Rosario v.
People.169 This court ruled that "[i]n the absence
of animus possidendi, the possessor of a firearm
incurs no criminal liability."170
In this case, petitioner failed to prove that his
possession of the illegal firearms seized from his bag
was "temporary, incidental, casual, or harmless
possession[.]"171 As put by the trial court,
petitioner’s claim that anyone could have planted
the firearms in his bag while it was unattended is
flimsy.172 There are dire consequences in accepting
this claim at face value, particularly that no one will
be caught and convicted of illegal possession of
firearms.
Courts must also weigh the accused’s claim against
the totality of the evidence presented by the
prosecution. This includes determination of: (1) the
motive of whoever allegedly planted the illegal
firearm(s); (2) whether there was opportunity to
plant the illegal firearm(s); and (3) reasonableness
of the situation creating the opportunity.
Petitioner merely claims that someone must have
planted the firearms when he left his bag with the
porter. He did not identify who this person could
have been and he did not state any motive for this
person to plant the firearms in his possession, even
if there was indeed an opportunity to plant the
firearms.
However, this court is mindful that, owing to the
nature of his work, petitioner was a frequent
traveler who is well-versed with port security
measures. We cannot accept that an average
reasonable person aware of travel security
measures would leave his belongings with a
stranger for a relatively long period of time. Also,
records show that petitioner had only one (1) bag.
There was no evidence to show that a robust young
man like petitioner would have need of the porter’s
services. The defense did not identify nor present
this porter with whom petitioner left his bag.
VIII
The trial court was correct when it dismissed
Criminal Case No. CBU-80084 for violation of
Republic Act No. 8294, otherwise known as illegal
possession of firearms. Section 1 of Republic Act No.
8294 provides:
SECTION 1. Section 1 of Presidential Decree No.
1866, as amended, is hereby further amended to
read as follows:
SECTION 1. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be
Used in the Manufacture of Firearms or
Ammunition. – The penalty of prision correccional in
its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed
upon any person who shall unlawfully manufacture,
deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or
.32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the
manufacture of any firearm or
ammunition: Provided, That no other crime was
committed. (Emphasis supplied)
Agote v. Judge Lorenzo173 already settled the
question of whether there can be a "separate
offense of illegal possession of firearms and
ammunition if there is another crime
committed[.]"174 In that case, the petitioner was
charged with both illegal possession of firearms and
violation of the Gun Ban under Commission on
Elections Resolution No. 2826.175 This court
acquitted petitioner in the case for illegal possession
of firearms since he simultaneously violated the Gun
Ban.176 This court also held that the unlicensed
firearm need not be actually used in the course of
committing the other crime for the application of
Section 1 of Republic Act No. 8294.177
Similarly, Madrigal v. People178 applied the ruling
in Agote and held that Section 1 of Republic Act No.
8294 is express in its terms that a person may not be
convicted for illegal possession of firearms if
another crime was committed.179
IX
We note that the trial court imposed the penalty of
imprisonment for a period of one (1) year and to
suffer disqualification to hold public office and
deprivation of the right to suffrage. Under Section
264 of Batas Pambansa Blg. 881, persons found
guilty of an election offense "shall be punished with
imprisonment of not less than one year but not
more than six years and shall not be subject to
probation."180 The Indeterminate Sentence Law
applies to offenses punished by both the Revised
Penal Code and special laws.181
The penalty to be imposed is a matter of law that
courts must follow. The trial court should have
provided minimum and maximum terms for
petitioner’s penalty of imprisonment as required by
the Indeterminate Sentence Law.182Accordingly, we
modify the penalty imposed by the trial court. Based
on the facts, we deem it reasonable that petitioner
be penalized with imprisonment of one (1) year as
minimum to two (2) years as maximum.183
X
The records are unclear whether petitioner is
currently detained by the state or is out on bail.
Petitioner’s detention is relevant in determining
whether he has already served more than the
penalty imposed upon him by the trial court as
modified by this court, or whether he is qualified to
the credit of his preventive imprisonment with his
service of sentence.
Article 29184 of the Revised Penal Code states:
ART. 29. Period of preventive imprisonment
deducted from term of imprisonment. – Offenders
or accused who have undergone preventive
imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty,
with the full time during which they have undergone
preventive imprisonment if the detention prisoner
agrees voluntarily in writing after being informed of
the effects thereof and with the assistance of
counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the
following cases:
1. When they are recidivists, or have been
convicted previously twice or more times of
any crime; and
2. When upon being summoned for the
execution of their sentence they have failed
to surrender voluntarily.
If the detention prisoner does not agree to abide by
the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the
assistance of a counsel and shall be credited in the
service of his sentence with four-fifths of the time
during which he has undergone preventive
imprisonment.1âwphi1
Credit for preventive imprisonment for the penalty
of reclusion perpetua shall be deducted from thirty
(30) years.
Whenever an accused has undergone preventive
imprisonment for a period equal to the possible
maximum imprisonment of the offense charged to
which he may be sentenced and his case is not yet
terminated, he shall be released immediately
without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is
under review. Computation of preventive
imprisonment for purposes of immediate release
under this paragraph shall be the actual period of
detention with good conduct time allowance:
Provided, however, That if the accused is absent
without justifiable cause at any stage of the trial, the
court may motu proprio order the rearrest of the
accused: Provided, finally, That recidivists, habitual
delinquents, escapees and persons charged with
heinous crimes are excluded from the coverage of
this Act. In case the maximum penalty to which the
accused may be sentenced is lestierro [sic], he shall
be released after thirty (30) days of preventive
imprisonment.
In case credit of preventive imprisonment is due,
petitioner must first signify his agreement to the
conditions set forth in Article 29 of the Revised
Penal Code.185 If petitioner has already served more
than the penalty imposed upon him by the trial
court, then his immediate release from custody is in
order unless detained for some other lawful
cause.186
WHEREFORE, the Petition is DENIED. The Court of
Appeals Decision dated September 8, 2012 and the
Resolution dated August 23, 2013 in CA-GR CEB CR
No. 01606 are AFFIRMED with MODIFICATIONS.
Petitioner Erwin Libo-On Dela Cruz is sentenced to
imprisonment of one (1) year as minimum to two (2)
years as maximum in accordance with the
Indeterminate Sentence Law. The period of his
preventive imprisonment shall be credited in his
favor if he has given his written conformity to abide
by the disciplinary rules imposed upon convicted
prisoners in accordance with Article 29 of the
Revised Penal Code, as amended, and if he is not out
on bail.
SO ORDERED.
1 Rollo, pp. 8-21.
2 Id. at 5~3. The case was docketed as CA-GR CEB CR.
No. 01606. The Decision was penned by Associate
Justice Ramon Paul L. Hernando (Chair) and
concurred in by Associate Justices Gabriel T. Ingles
and Zenaida T. Galapate-Laguilles of the Special
Twentieth Division, Court of Appeals Cebu.
3 Id. at 68--69. The Resolution was penned by
Associate Justice Ramon Paul L. Hernando and
concurred in by Associate Justices Edgardo L. Delos
Santos (Chair) and Gabriel T. Ingles of the Special
Former Special Twentieth Division, Court of Appeals
Cebu.
4 Id. at 17, Petition.
5 Id. at 63, Court of Appeals Decision.
6 Id. at 23–31, Regional Trial Court’s Consolidated
Judgment. The Consolidated Judgment was penned
by Presiding Judge Estela Alma A. Singco of Branch
12 of the Regional Trial Court, Cebu City.
7 Rules and Regulations on: (A) Bearing, Carrying or
Transporting Firearms or Other Deadly Weapons;
(B) Security Personnel or Bodyguards; (C) Bearing
Arms by any Member of Security or Police
Organization of Government Agencies and Other
Similar Organization (D) Organization or
Maintenance of Reaction Forces during the Election
Period in connection with the May 14, 2007 National
and Local Elections.
8 Batas Blg. 881 (1985), sec. 261(q) provides:
....
(q) Carrying firearms outside residence or
place of business. – Any person who,
although possessing a permit to carry
firearms, carries any firearms outside his
residence or place of business during the
election period, unless authorized in writing
by the Commission: Provided, That a motor
vehicle, water or air craft shall not be
considered a residence or place of business
or extension hereof. (Par. (l), Id.) This
prohibition shall not apply to cashiers and
disbursing officers while in the performance
of their duties or to persons who by nature
 of their official duties, profession, business 41 Id. at 28.
or occupation habitually carry large sums of 42 Id. at 25–28.
money or valuables. 43 Id. at 29.
9 Omnibus Election Code of The Philippines. 44 Id. at 28.
10 Rollo, p. 30, Regional Trial Court’s Consolidated 45 Id.

Judgment. 46 Id. at 29.

11 Id. at 12, Petition, and 27, Regional Trial Court’s 47 Id.

Consolidated Judgment; defense’s version of the 48 Id.

facts as summarized by the trial court. 49 Id. at 60, Court of Appeals Decision.
12 Id. at 27, Regional Trial Court’s Consolidated 50 Id. at 29, Regional Trial Court’s Consolidated

Judgment. Judgment.
13 Id. at 25 and 27, Regional Trial Court’s 51 Id. at 30.

Consolidated Judgment, and 58, Court of Appeals 52 Id. at 30–31.

Decision. 53 Id. at 63, Court of Appeals Decision.

14 Id. at 27. 54 Id. at 60–61.
15 Id. 55 Id. at 61.
16 Id. 56 Id. at 62.
17 Id. at 26–27. 57 Id.
18 Id. at 26. 58 Id. at 62–63.
19 Id. 59 Id. at 63.
20 Id. 60 Id. at 64–67.
21 Id. 61 Id. at 69, Court of Appeals Resolution.
22 Id. 62 Id. at 8, Petition.
23 Id. at 58, Court of Appeals Decision. In the trial 63 Id. at 72.

court’s Consolidated Judgment, the port personnel 64 Id. at 83–95.

was named "Archie" Igot. The Court of Appeals 65 Id. at 97.

Decision refers to the port personnel as "Arcie" Igot. 66 Id. at 14, Petition.
24 Id. 67 Id.
25 Id. 68 Id.
26 Id. 69 Id. at 15.
27 Id. 70 Id.
28 Id. at 58–59. 71 Id.
29 Id. at 11, Petition, and 59, Court of Appeals 72 Id.

Decision. 73 Id. at 15–16.

30 Id. at 59, Court of Appeals Decision. 74 Id. at 16.
31 Id. 75 Id. at 88 and 90–91, Comment.
32 Id. at 57. 76 Id. at 88.
33 Id. 77 Id.
34 Id. at 58. 78 Id. at 89–90.
35 Id. 79 Id. at 90.
36 Id. at 11, Petition, and 25, Regional Trial Court’s 80 Id. at 92, citing the Regional Trial Court’s

Consolidated Judgment. Consolidated Judgment, p. 6.

37 Id. at 30, Regional Trial Court’s Consolidated 81 Id. at 92.

Judgment, and 59–60, Court of Appeals Decision. 82 Id. at 92–93.

38 Id. at 30, Regional Trial Court’s Consolidated 83 Id. at 14, Petition.

Judgment, and 60, Court of Appeals Decision. 84 RULES OF COURT, Rule 124, sec. 13, as amended
39 Id. at 27–28, Regional Trial Court’s Consolidated by A.M. No. 00-5-03-SC dated September 28, 2004,
Judgment. provides:
40 Id.
Sec. 13. Certification or appeal of case to the
Supreme Court.—(a) Whenever the Court of
Appeals finds that the penalty of death should be
imposed, the court shall render judgment but
refrain from making an entry of judgment and
forthwith certify the case and elevate its entire
record to the Supreme Court for review.
(b) Where the judgment also
imposes a lesser penalty for offenses’
committed on the same occasion or
which arose out of the same
occurrence that gave rise to the more
severe offense for which the penalty
of death is imposed, and the accused
appeals, the appeal shall be included
in the case certified for review to the
Supreme Court.
(c) In cases where the Court of
Appeals imposes reclusion perpetua,
life imprisonment or a lesser penalty,
it shall render and enter judgment
imposing such penalty. The judgment
may be appealed to the Supreme
Court by notice of appeal filed with
the Court of Appeals.
See People v. Rocha, 558 Phil. 521, 530–535 (2007)
[Per J. Chico-Nazario, Third Division], for a
discussion on the difference between appeal for
cases involving imposition of life imprisonment
and reclusion perpetua, and automatic review for
cases involving imposition of death penalty. See also
People v. Mateo, 477 Phil. 752, 768–773 (2004) [Per
J. Vitug, En Banc].
85 See Republic Act No. 9346, entitled "An Act
Prohibiting the Imposition of Death Penalty in the
Philippines"
86 441 Phil. 216 (2002) [Per J. Bellosillo, Second
Division]. The case was decided in 2002 before the
amendment of the Rules in A.M. No. 00-5-3-SC
dated September 28, 2004.
87 Id. at 222–223.
88 RULES OF COURT, Rule 45, sec. 1 provides:
SECTION 1. Filing of petition with Supreme
Court.— A party desiring to appeal by
certiorari from a judgment or final order or
resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or
other courts whenever authorized by law,
may file with the Supreme Court a verified
petition for review on certiorari. The petition
shall raise only questions of law which must
be distinctly set forth.
See Tan v. People, 604 Phil. 68, 78 (2009) [Per
J. Chico-Nazario, Third Division].
89 Ruiz v. People, 512 Phil. 127, 135 (2005) [Per J.
Callejo, Sr., Second Division], citing Republic v.
Sandiganbayan, 425 Phil. 752, 765–766 (2002) [Per
C.J. Davide, Jr., En Banc].
90 See People v. Cardenas, G. R. No. 190342, March
21, 2012, 668 SCRA 827, 844–845 [Per J. Sereno
(now C.J.), Second Division].
91 People v. Galigao, 443 Phil. 246, 261 (2003) [Per J.
Ynares-Santiago, En Banc], citing People v. Taño,
387 Phil. 465, 478 (2000) [Per J. Panganiban, En
Banc] and People v. Castillo, 382 Phil. 499, 506
(2000) [Per J. Puno, En Banc].
92 People v. Galigao, 443 Phil. 246, 261 (2003) [Per J.
Ynares-Santiago, En Banc], citing People v. Pirame,
384 Phil. 286, 300 (2000) [Per J. Quisumbing, Second
Division].
93 People v. Judge Laguio, Jr., 547 Phil. 296, 309
(2007) [Per J. Garcia, First Division].
94 Rollo, p. 28, Regional Trial Court’s Consolidated
Judgment.
95 271 Phil. 51 (1991) [Per J. Bidin, Third Division].
96 Id. at 54–55.
97 Id. at 55.
98 Id.
99 Id.
100 Id. at 56.
101 Id. at 60.
102 Id.
103 Id. at 61.
104 Id. at 62.
105 Id. at 58. See Stonehill, et al. v. Diokno, et al., 126
Phil. 738 (1967) [Per C.J. Concepcion, En Banc].
In People v. Alicando, 321 Phil. 656, 690–691
(1995) [Per J. Puno, En Banc], this court
explained the doctrine of fruit of the
poisonous tree as adopted in this
jurisdiction: "We have not only
constitutionalized the Miranda warnings in
our jurisdiction. We have also adopted the
libertarian exclusionary rule known as the
‘fruit of the poisonous tree,’ a phrase minted
by Mr. Justice Felix Frankfurter in the
celebrated case of Nardone v. United States.
According to this rule, once the primary
 source (the ‘tree’) is shown to have been
unlawfully obtained, any secondary or
derivative evidence (the ‘fruit’) derived from
it is also inadmissible. Stated otherwise,
illegally seized evidence is obtained as a
direct result of the illegal act, whereas the
‘fruit of the poisonous tree’ is the indirect
result of the same illegal act. The ‘fruit of the
poisonous tree’ is at least once removed
from the illegally seized evidence, but it is
equally inadmissible. The rule is based on the
principle that evidence illegally obtained by
the State should not be used to gain other
evidence because the originally illegally
obtained evidence taints all evidence
subsequently obtained. We applied this
exclusionary rule in the recent case of
People vs. Salanga, et al., a ponencia of Mr.
Justice Regalado. Salanga was the appellant
in the rape and killing of a 15-year old barrio
lass. He was, however, illegally arrested.
Soldiers took him into custody. They gave
him a body search which yielded a lady’s
underwear. The underwear was later
identified as that of the victim. We acquitted
Salanga. Among other reasons, we ruled that
‘the underwear allegedly taken from the
appellant is inadmissible in evidence, being a
so-called fruit of the poisonous tree.’"
106 See Pres. Decree No. 505 (1974), entitled
Providing for the Reorganization of Port
Administration and Operation Functions in the
Country, Creating the Philippine Port Authority,
Paving the Way for the Establishment of Individual,
Autonomous Port/Industrial Zone Authorities in the
Different Port Districts, and for Other Purposes.
107 Pres. Decree No. 857 (1974), art. VIII, sec. 26(a).
108 Exec. Order No. 513 (1978) is entitled
Reorganizing the Philippine Ports Authority.
109 See Rep. Act No. 7621 (1992), entitled An Act
Creating the Cebu Port Authority Defining its Powers
and Functions, Providing Appropriation therefor,
and for Other Purposes.
110 Rep. Act No. 7621 (1992), sec. 3.
111 See Cebu Port Authority, Corporate Profile,
History
<http://www.cpa.gov.ph/index.php?option=com_c
ontent&view=article&id=142&mId=110&mItemId=
111> (visited September 1, 2015).
112 See Exec. Order No. 311 (2004), entitled
Designating the Office for Transportation Security as
the Single Authority Responsible for the Security of
the Transportation Systems of the Country,
Expanding its Powers and Functions and for Other
Purposes. See also Exec. Order No. 277 (2004).
113 Exec. Order No. 311 (2004), sec. 2.
114 See Cebu Port Authority Admin. Order No. 04
(2008)
<http://www.cpa.gov.ph/external/pdf/all_admin_o
rder/2008/AO_04-2008.pdf> (visited September 1,
2015).
115 534 Phil. 404 (2006) [Per J. Chico-Nazario, En
Banc]. This case applied the ruling in Marti on the
inapplicability of the Bill of Rights against private
individuals. However, it found that barangay
tanod and the Barangay Chairman are law
enforcement officers for purposes of applying
Article III, Section 12(1) and (3) of the Constitution.
116 Id. at 439.
117 629 Phil. 522 (2010) [Per J. Perez, Second
Division].
118 CONST., art. III, sec. 12 provides:
SECTION 12. (1) Any person under investigation for
the commission of an offense shall have the right to
be informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing and
in the presence of counsel.
(2) No torture, force, violence,
threat, intimidation, or any other
means which vitiate the free will shall
be used against him. Secret
detention places, solitary,
incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission
obtained in violation of this or
Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal
and civil sanctions for violations of
this section as well as compensation
to and rehabilitation of victims of
torture or similar practices, and their
families.
119 People v. Lauga, 629 Phil. 522, 531 (2010) [Per J.
Perez, Second Division].
120 G.R. No. 120670, October 23, 2003, 414 SCRA 43
[Per J. Sandoval-Gutierrez, En Banc].
121 Id. at 45.
122 Id.
123 Id. at 46.
124 Id.
125 Id.
126 Id.
127 Id. at 47.
128 Id.
129 Id. at 53.
130 Id. at 56–57.
131 Id. at 53–54.
132 G.R. No. 191023, February 6, 2013, 690 SCRA 141
[Per J. Villarama, Jr., First Diviison].
133 Id. at 145 and 152.
134 Police authority has been delegated to different
government agencies and instrumentalities through
law. See TARIFF CODE, sec. 2203; Pres. Decree No.
1716-A (1980), entitled Further Amending
Presidential Decree No. 66 dated November 20,
1972, Creating the Export Processing Zone
Authority, sec. 7; and Exec. Order No. 903 (1983),
entitled Providing for a Revision of Executive Order
No. 778 Creating the Manila International Airport
Authority, Transferring Existing Assets of the Manila
International Airport to the Authority, and Vesting
the Authority with Power to Administer and
Operate the Manila International Airport. See also
Salvador v. People, 502 Phil. 60 (2005) [Per J.
Sandoval-Gutierrez, Third Division]; Pacis v.
Pamaran, 155 Phil. 17 (1974) [Per J. Fernando,
Second Division]; Manikad, et al. v. Tanodbayan, et
al., 212 Phil. 669 (1984) [Per J. Escolin, En Banc];
and Manila International Airport Authority v. Court
of Appeals, 528 Phil. 181 (2006) [Per J. Carpio, En
Banc].
135 People v. Mariacos, 635 Phil. 315, 329 (2010) [Per
J. Nachura, Second Division], citing People v. Aruta,
351 Phil. 868, 880 (1998) [Per J. Romero, Third
Division], citing in turn People v. Encinada, 345 Phil.
301, 317 (1997) [Per J. Panganiban, Third Division].
136 John Stuart Mill, On
Liberty <https://www.gutenberg.org/files/34901/3
4901-h/34901-h.htm> (visited September 1, 2015).
137 CONST., art. III, sec. 2 provides:
SECTION 2. The right of the people to be
secure in their persons, houses, papers, and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
138 See People v. Aruta, 351 Phil. 868 (1998) [Per J.
Romero, Third Division].
139 See People v. Cogaed, G.R. No. 200334, July 30,
2014, 731 SCRA 427, 440–441 [Per J. Leonen, Third
Division]. See also Villanueva v. People, G.R. No.
199042, November 17, 2014
<http://sc.judiciary.gov.ph/pdf/web/viewer
.html?file=/jurisprudence/2014/november2
014/199042.pdf> 5 [Per C.J. Sereno, First
Division].
140 424 Phil. 263 (2002) [Per J. Puno, First Division].
141 Id. at 289. See People v. Figueroa, 390 Phil. 561
(2000) [Per C.J. Davide, First Division].
142 Rollo, pp. 26–28, Regional Trial Court’s
Consolidated Judgment.
143 Id. at 28.
144 Id. at 25–27.
145 People v. Lacerna, 344 Phil. 100, 124 (1997) [Per
J. Panganiban, Third Division].
146 Rollo, p. 28, Regional Trial Court’s Consolidated
Judgment.
147 63 Phil. 221 (1936) [Per J. Diaz, En Banc], citing I
THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS
631 (8th ed.).
148 G.R. No. 99050, September 2, 1992, 213 SCRA
462, 470–471 [Per J. Davide, Jr., Third Division].
149 See Caballes v. Court of Appeals, 424 Phil. 263,
289 (2002) [Per J. Puno, First Division].
150 G.R. No. 104961, October 7, 1994, 237 SCRA 424
[Per J. Bellosillo, En Banc].
151 Id. at 429.
152 Id. at 436–437.
153 See Caballes v. Court of Appeals, 424 Phil. 263,
286 (2002) [Per J. Puno, First Division].
154 Papa, et al. v. Mago, et al., 130 Phil. 886, 902
(1968) [Per J. Zaldivar, En Banc].
155 130 Phil. 886 (1968) [Per J. Zaldivar, En Banc].
156 Id. at 901–902.
157 502 Phil. 60 (2005) [Per J. Sandoval-Gutierrez,
Third Division].
158 Id. at 72.
159 See Escalante v. People, G.R. No. 192727, January
9, 2013, 688 SCRA 362, 373 [Per J. Reyes, First
Division].
160 544 Phil. 614 (2007) [Per J. Austria-Martinez,
Third Division]. In this case, the accused was
convicted of violating the Gun Ban but was
acquitted of violating Presidential Decree No. 1866
(Id. at 634). This court held: "While the prosecution
was able to establish the fact that the subject
firearm was seized by the police from the possession
of the petitioner, without the latter being able to
present any license or permit to possess the same,
such fact alone is not conclusive proof that he was
not lawfully authorized to carry such firearm. In
other words, such fact does not relieve the
prosecution from its duty to establish the lack of a
license or permit to carry the firearm by clear and
convincing evidence, like a certification from the
government agency concerned" (Id. at 631).
161 Id. at 633. Abenes involved the Commission on
Elections’ imposed Gun Ban through Rep. Act No.
7166 (1991), sec. 32, which is substantially the same
with COMELEC Resolution No. 7764 (2006), sec. 2, in
relation to Batas Blg. 881 (1985), sec. 261.
162 Id. at 632.
163 536 Phil. 998 (2006) [Per J. Ynares-Santiago, First
Division].
164 Id. at 1003–1004.
165 G.R. Nos. 102009–10, July 6, 1994, 233 SCRA 716
[Per J. Regalado, Second Division].
166 Id. at 726–727.
167 Id. at 720–721.
168 Id. at 726–728.
169 Del Rosario v. People, 410 Phil. 642, 664 (2001)
[Per J. Pardo, First Division].
170 Id.
171 People v. De Gracia, G.R. Nos. 102009–10, July 6,
1994, 233 SCRA 716, 727 [Per J. Regalado, Second
Division].
172 Rollo, p. 29, Regional Trial Court’s Consolidated
Judgment.
173 502 Phil. 318 (2005) [Per J. Garcia, En Banc].
174 Id. at 332.
175 Id. at 323–324.
176 Id. at 335.
177 Id. at 331–334.
178 584 Phil. 241 (2008) [Per J. Corona, First Division].
179 Id. at 245.
180 Batas Blg. 881 (1985), sec. 264 provides:
SECTION 264. Penalties. – Any person found
guilty of any election offense under this
Code shall be punished with imprisonment
of not less than one year but not more than
six years and shall not be subject to
probation. In addition, the guilty party shall
be sentenced to suffer disqualification to
hold public office and deprivation of the
right of suffrage. If he is a foreigner, he shall
be sentenced to deportation which shall be
enforced after the prison term has been
served. Any political party found guilty shall
be sentenced to pay a fine of not less than
ten thousand pesos, which shall be imposed
upon such party after criminal action has
been instituted in which their corresponding
officials have been found guilty.
181 See Uriarte v. People, 540 Phil. 477, 501 (2006)
[Per J. Callejo, Sr., First Division] and People v.
Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555,
579–581 [Per J. Regalado, En Banc].
182 Act No. 4103 (1933), sec. 1, as amended by Act
No. 4225 (1935), sec. 1, provides:
SEC. 1. Hereafter, in imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term
of which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of the said Code,
and to a minimum which shall be within the
range of the penalty next lower to that
prescribed by the Code for the offense; and
if the offense is punished by any other law,
the court shall sentence the accused to an
indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed
by said law and the minimum shall not be
less than the minimum term prescribed by
the same.
See Escalante v. People, G.R. No. 192727,
January 9, 2013, 688 SCRA 362, 374 [Per J.
Reyes, First Division].
183 In Abenes v. Court of Appeals, 544 Phil. 614, 634
(2007) [Per J. Austria-Martinez, Third Division], this
court imposed the indeterminate sentence of one
(1) year of imprisonment as minimum to two (2)
years of imprisonment as maximum. In Madrigal v.
People, 584 Phil. 241, 245 (2008) [Per J. Corona, First
Division], the accused was "sentenced to suffer the
indeterminate penalty of imprisonment from one
year as minimum to three years as maximum[.]"
184 As amended by Rep. Act No. 10592 (2012), sec.

1.
185 People v. Oloverio, G.R. No. 211159, March 28,

2015
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?fi
le=/jurisprudence/2015/march2015/211159.pdf>
17–18 [Per J. Leonen, Second Division].
186 Agote v. Judge Lorenzo, 502 Phil. 318, 335 (2005)

[Per J. Garcia, En Banc].

 G.R. No. 234196, November 21, 2018
JONATHAN MENDOZA Y ESGUERRA, petitioner, V.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
A. REYES, JR., J.:
Before this Court is a petition for review
on certiorari[1] under Rule 45 of the Rules of Court
seeking to annul and set aside the Decision[2] dated
June 21, 2017 of the Court of Appeals (CA) in CA-G.R.
CR No. 38156 and its Resolution[3] dated August 24,
2017, denying the motion for reconsideration
thereof. The assailed decision affirmed albeit with
modification as to penalty the Decision[4] dated
August 26, 2015 of the Regional Trial Court (RTC) of
Tanauan, Batangas, Branch 6, finding Jonathan
Mendoza y Esguerra (petitioner) guilty beyond
reasonable doubt of the crime of Illegal Possession
of Firearm and Ammunitions as defined and
penalized by Presidential Decree (P.D.) No. 1866, as
amended by Republic Act (R.A.) No. 8294.
An Information was filed before the RTC of Tanauan
City, Batangas, Branch 6, charging the petitioner for
violation of P.D. No. 1866, as amended by R.A. No.
8294, to wit:
That on or about the 31st day of August 2006, at
about 11:45 o'clock in the evening at Barangay 5,
Poblacion, City of Tanauan, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused, without authority of law, did then
and there willfully, unlawfully, and feloniously has in
his possession, custody and control one (1) Ranger
caliber 45 pistol (Imperial Defense Service) with
Serial No. C02009, two (2) magazines with nine (9)
pieces of live ammunitions and three (3) pieces of
empty shells of the same caliber without having
secured the necessary license and/or permit from
the proper authorities to possess the same.
CONTRARY TO LAW.[5]
On December 13, 2006, assisted by the counsel, the
petitioner was arraigned and pleaded not guilty to
the crime charged.[6]Trial on the merits ensued
thereafter.
The evidence for the prosecution tend to establish
that on August 31, 2006, at about 11:45 p.m., during
a checkpoint, Police Officer 1 Ryan Pagcaliwagan
(PO1 Pagcaliwagan), PO1 Celso Torres, and PO1
Fheljun Calalo flagged down a motorcycle as it had
no license plate and its three occupants were not
wearing a helmet. The occupants were later
identified as Julius Opeña (Opeña), the owner of the
motorcycle, Jeffrey Coral (Coral), and herein
petitioner who was then driving the motorcycle.[7]
As they were approaching the motorcycle, PO1
Pagcaliwagan saw the petitioner take a firearm and
cover it with a bag. The former then alerted his co-
police officers, took the firearm and arrested the
petitioner who denied ownership of the gun, but at
the same time claimed the same was licensed.[8]
Confiscated from the petitioner were one (1) gray
Ranger caliber .45 pistol with Serial No. CO2009, one
(1) stainless magazine with four (4) pieces of live
ammunition, one (1) black magazine, five (5) live
ammunition, and three (3) pieces of empty shells for
caliber .45. The items were brought to the police
station and turned over to PO1 Charlie Bermejo and
marked by PO1 Pagcaliwagan.[9]
For their part, the defense presented as witnesses
the petitioner, Opena, and Anthony Carpio
(Carpio).[10]
The petitioner denied any criminal liability and by
way of defense claimed that the firearm, magazines,
and live ammunition were the product of an illegal
search and thus were illegally obtained in his
possession.[11]
The petitioner testified that on the alleged date of
the incident, he went to a drinking spree with his
friends at Barangay Santol. Thereafter, the
petitioner submitted that he went to buy more beer
with his friends Opeña and Coral. While on their way
and as they were passing Bank of the Philippine
Islands, they were stopped by police officers. As
ordered, they stopped and alighted from the
motorcycle. They were frisked and the motorcycle from the petitioner after seeing the latter withdrew
was searched. As a result of which, the firearm, a gun and hid it under his bag.
magazines, and ammunitions were recovered under
Aggrieved, the petitioner appealed to the CA. On
the seat of the motorcycle.[12]
June 21, 2017, the CA rendered its
Opeña and Carpio corroborated the petitioner's Decision[16] affirming the lower court's decision, as
testimony. Carpio, in his testimony, likewise follows:
admitted that the firearm and ammunition are
WHEREFORE, in view of the foregoing, we
registered under his name, and that he placed the
AFFIRMED with Modification the Decision of the
same under the seat of the motorcycle without the
[RTC] dated August 26, 2015 in Criminal Case No. 06-
knowledge of the petitioner. Carpio submitted that
09-3144. As modified, [the petitioner] is hereby
he brought the said firearm as he intends to sell the
sentenced to suffer the indeterminate penalty of
same to a friend but later forgot to retrieve the
imprisonment ranging from SIX (6) YEARS of prision
same from the motorcycle. Carpio averred that the
correccional in its maximum period, as minimum, to
day after, after having learned of the petitioner's
SIX (6) YEARS, EIGHT MONTHS and ONE DAY
arrest, he immediately went to the police station
of prision mayor minimum in its medium period, as
and presented his license to the chief of police his
maximum and to pay a fine of P30,000.00.
license to possess the said firearm.[13]
SO ORDERED.[17]
On August 26, 2015, the lower court rendered its
Decision,[14] the dispositive portion of which reads: The CA affirmed the finding of the RTC that there
was a valid search and seizure of the subject item,
WHEREFORE, premises considered, and finding
which is done pursuant to a lawful arrest. Contrary
[petitioner] GUILTY beyond reasonable doubt of the
however to the RTC's determination, the CA held
crime charged, the court hereby sentences him to
that it was the initial violation for the absence of
suffer the penalty of imprisonment from six (6)
license plate and helmet that justified the search
years and one (1) day to eight (8) years of prision
and seizure in this case. Anent the penalty, the CA
mayor and to pay a fine of Thirty Thousand Pesos
modified the imposition by the RTC which it found
(Php 30,000.00).
to be contrary to the indeterminate sentence law.
Without pronouncement as to costs.
The petitioner filed a motion for reconsideration,
SO ORDERED.[15] which the CA denied in its Resolution[18] dated
August 24, 2017.
In so ruling, the RTC held that the prosecution
established the elements of the crime charged. In so Hence, this petition for review
doing, the RTC relied heavily on the testimony of on certiorari whereby the petitioner submits the
PO1 Pagcaliwagan that the subject firearms and following issues for the Court's resolution, viz.:
ammunitions were retrieved from the petitioner.
1.) Whether or not police officers have the legal
Further, and similarly relying on the testimony of
authority to search the body of the driver and/or his
PO1 Pagcaliwagan, the RTC found untenable the
motorcycle because he violated traffic rules and
petitioner's defense of illegal search and seizure as
regulations?
well as lack of knowledge as to his possession of the
seized items, concluding the search was incidental 2.) Whether or not the police officers in this case
to a lawful arrest. The RTC held that PO1 had validly conducted a search incident to a lawful
Pagcaliwagan was correct in flagging down, arrest as governed by Section 12, Rule 126 of the
arresting, searching, and seizing the subject items Revised Rules of Criminal Procedure.
In its Comment, the respondent argues that PO1
Pagcaliwagan and his fellow police officers "had a
valid and legal reason to seize the firearm from the
petitioner, who, in their presence, tried to hide said
firearm, a clear indication that at that time, he had
committed or was committing an
offense."[19] Further, the respondent justifies the
act of the police officer in flagging down the
motorcycle driven by the petitioner by the fact that
it appears to have no plate number.
After a careful scrutiny of the records of the instant
case, the Court finds that the rise or fall of the
instant petition depends upon the appreciation of
the testimony of the parties. Particularly, whether
the testimony of PO1 Pagcaliwagan is sufficient to
produce a conviction beyond reasonable doubt.
Ruling of the Court
The Court rules in the negative.
The issue of credibility is a factual issue that is
generally beyond the province of a petition for
review on certiorari in accordance with the principle
that the Court is not a trier of facts. Thus, as a rule,
the assessment of the credibility of witnesses is
generally left to be determined by the trial court
which had the opportunity to observe the witnesses
and evaluate their credibility through their
demeanor on the stand. Likewise, the factual
findings by the trial court when affirmed by the CA,
are accorded respect by the Court and not disturbed
on appeal. However, jurisprudence provided
exceptions to the said rule. Thus, the Court may pass
upon questions of fact: where there is an
"ostensible incongruence" in the findings of the said
courts,[20] or in criminal cases where the testimony
upon which the conviction is based is "riddled with
patent inconsistencies and improbabilities on
material points."[21] The Court, in Medina v. Mayor
Asistio, Jr.,[22] summarized the recognized
exceptions to the rule, thus under the following
instances, the Court, acting on a petition for review
for certiorarimay rule upon factual questions:
(1) When the conclusion is a finding grounded
entirely on speculation, surmises or conjectures; (2)
When the inference made is manifestly mistaken,
absurd or impossible; (3) Where there is a grave
abuse of discretion; (4) When the judgment is based
on a misapprehension of facts; (5) When the
findings of fact are conflicting; (6) When the Court
of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) The
findings of the Court of Appeals are contrary to
those of the trial court; (8) When the findings of fact
are conclusions without citation of specific evidence
on which they are based; (9) When the facts set
forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the
respondents; and (10) The finding of fact of the
Court of Appeals is premised on the supposed
absence of evidence and is contradicted by the
evidence on record.[23] (Citations omitted)
In this controversy, a review of the records reveals
that there are improbabilities in the testimony of
PO1 Pagcaliwagan, upon which the conviction is
based, thus warranting that the Court re-examine
the relevant facts and circumstances. Primarily,
while the same relies heavily on the credibility of the
testimony of PO1 Pagcaliwagan, a matter that is
generally left for the trial court to determine, finding
that the appreciation of the same is erroneous, the
Court decides to make its own evaluation of the
evidence on record. In this light, the Court concludes
that the warrantless arrest of the petitioner is
invalid, which thus renders the search conducted
thereafter illegal.
The prosecution and the defense vary as to their
narration of what happened on the day the alleged
crime was committed.
Based on the testimony of PO1 Pagcaliwagan, they
flagged down the motorcycle ridden by the
petitioner, and the latter's two (2) male companions
after noticing that the vehicle bore no license plate
and its occupants were not wearing a helmet.
Thereafter, PO1 Pagcaliwagan allegedly saw the
petitioner took out a gun and hid it under his bag.
This is what prompted the officers to arrest the
petitioner and conduct a search as an incident
thereto.
The theory of the prosecution, which was found
credible by both the RTC and the CA, was that the
warrantless arrest and search was justified under
Section 5(a) and (b), Rule 113 of the Rules of Court
which provides:
Sec. 5. Arrest without warrant; when lawful. — A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed, and
he has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested committed it.
xxxx
In order for an arrest to be justified under paragraph
(a), the following elements must be present: (1) the
person to be arrested must execute an overt
act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within
the view of the arresting officer. On the other hand,
in order for paragraph (b) to operate, at the time of
the arrest, an offense had in fact just been
committed and the arresting officer had personal
knowledge of facts indicating that the appellant had
committed it.[24]
Even siding with the version offered by the
prosecution, the Court sees no such overt act, much
more, an offense that was committed that would
justify the arrest of the petitioner without warrant.
The petitioner and his companions were flagged
down during a checkpoint after the police officers
noticed that the motorcycle which they were riding
bore no license plate and the riders are not wearing
any helmet. The commission of a traffic violation
does not justify the arrest of the petitioner. Under
Section 29[25] of R.A. No. 4136 or The Land
Transportation Code, such violation merely warrant
the confiscation of the offender's driver's
license.[26]
Furthermore, the conflicting accounts of how the
firearm was retrieved, lend support that the arrest
and eventual search and seizure are invalid.
In this case, while PO1 Pagcaliwagan claims that the
firearm was within his plain sight just as the
petitioner attempted to conceal the same while 2 to
3 meters away from the checkpoint, the petitioner
claims that the motorcycle's compartment was
opened and from there PO1 Pagcaliwagan saw and
recovered the firearm and ammunitions.
The Court finds the story offered by PO1
Pagcaliwagan as to how the firearm was retrieved,
hard to believe. When confronted by police officers,
the ordinary reaction of a person who knows that he
has in his possession a gun for which he has no
license is to prevent the same from being
discovered. It is inconceivable why the petitioner
would go the lengths of going down the motorcycle,
opening the compartment from under the seat and
remove the well-concealed firearm, only to again
cover the same with his bag in front.
The theory is not only contrary to human experience
and reaction but as well faced with suspicion in view
of the fact that the placement of the gun when it
was taken was outside the view of other police
officers in the checkpoint. Simply, it is only PO1
Pagcaliwagan who affirmed that the firearm was in
plain sight.[27]
Also the charge must fail as the prosecution failed to
establish the essential elements of, and the facts
constitutive of the offense charged.[28]
The petitioner was indicted of the crime of illegal
possession of firearms, as defined and penalized by
P.D. No. 1866, as amended by R.A. No. 8294. The
elements for the prosecution of which crime are: (1)
the existence of subject firearm; and (2) the fact that
the accused who possessed or owned the same
does not have the corresponding license for it.
Verily, ownership is not an essential element of the
crime of illegal possession of firearms. What is
merely required is either actual or constructive
possession coupled with animus possidendi or
intent to possess.[29]
In this controversy, while the existence of the
firearm and the absence by the petitioner of the
license to own the same may be conceded, the
absence on the part of the petitioner of animus
possidendi is sufficient to cause his acquittal.
In the case of People v. De Gracia,[30] the Court
held that while mere possession, without criminal
intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that
there was animus possidendi or an intent to possess
on the part of the accused. Otherwise stated, to be
convicted of illegal possession of firearms it is
sufficient that the accused had no authority or
license to possess a firearm, and that he intended to
possess the same, even if such possession was made
in good faith and without criminal intent. Thus, the
Court continued:
[A] temporary, incidental, casual, or harmless
possession or control of a firearm cannot be
considered a violation of a statute prohibiting the
possession of this kind of weapon, such as
Presidential Decree No. 1866. Thus, although there
is physical or constructive possession, for as long as
the animus possidendi is absent, there is no offense
committed.[31]
Animus possidendi is a concept that eludes specific
standards to indicate its existence. Being a state of
mind, animus possidendi is determined on a case to
case basis, taking into consideration the prior and
contemporaneous acts of the accused and the
surrounding circumstances.[32] "What exists in the
realm of thought is often disclosed in a range of
action."[33]
The petitioner claims that he was not aware that the
subject firearm and ammunitions were inside the
motorcycle's compartment. This was corroborated
by Carpio, the firearm's owner. Carpio's testimony
was succinctly summarized by the CA, viz.:
Anthony admitted and corroborated the testimony
of accused-appellant, among others, that the
firearm and ammunition were owned and licensed
in his name, that he placed the bag containing the
said firearm and ammunition in the compartment of
the motorcycle without the knowledge of accused-
appellant. He further testified that he happened to
bring the firearm as he intended to sell it to his co-
worker who failed to arrive that day in Brgy. Santol.
However, he forgot about the firearm in the
motorcycle when he left the accused-appellant at
the drinking session. It was only the following day
that he learned of the arrest of the accused-
appellant for possessing the firearm. Immediately,
he proceeded to the police station. He saw the
accused-appellant in jail and presented to the chief
of police his license to possess said
firearm.[34] (Citations omitted.)
The consistency of the story and the manner in
which Carpio acted coupled with the fact that the
petitioner was merely charged to be the driver on
the night of the incident bolsters the conclusion that
the petitioner was indeed not aware of the presence
of the firearm and ammunitions inside the
motorcycle compartment. Not being the owner of
the motorcycle, the petitioner cannot even be
remotely charged with or presumed to have
knowledge of the subject firearm.
Knowledge is an essential component of intent.
Without awareness or knowledge of the existence
of the subject firearm and ammunitions, it cannot
be said that the petitioner has the intent to possess.
While absence of knowledge on the part of the
petitioner cannot be established with absolute
certainty in this case, possibilities abound that
constrain the Court to acquit the accused. It is both
well settled and elementary principle in criminal law
that when the facts and evidence are susceptible to
two or more interpretations, one of which
consistent with the innocence of the accused, and
the other with his guilt, acquittal must ensue.[35] As
in that case, the prosecution is regarded to not have
hurdled the test of moral certainty required for
conviction.[36]
The overriding consideration in criminal
prosecutions is not whether the court doubts the
innocence of the accused but whether there is a
reasonable doubt as to his guilt, in which case the
Court is "under a long standing injunction" to
resolve the doubt in favor of the
petitioner.[37] Where there is reasonable doubt,
presumption of innocence must be favored and the
accused must be exonerated as a matter of right,
even though his innocence may not have been
established.[38] This is a guarantee that no less that
the Constitution enshrines.
WHEREFORE, in consideration of the foregoing
disquisitions, the petition is GRANTED. The Decision
dated June 21, 2017 and Resolution dated August
24, 2017 of the Court of Appeals in CA-G.R. CR No.
38156 are hereby REVERSED AND SET ASIDE.
Petitioner Jonathan Mendoza y Esguerra
is ACQUITTED of the crime of Illegal Possession of
Firearms and Ammunitions on the ground of
reasonable doubt.
SO ORDERED.
Carpio (Chairperson), Perlas-Bernabe, Caguioa,
and J. Reyes, Jr.,[*] JJ., concur.
[16] Id. at 5-12.
[17] Id. at 11-12.
[18] Id. at 13.
[19] Rollo, pp.70-71.
[20] Estate of Margarita D. Cabacungan v. Laigo, et
al., 671 Phil. 132, 146 (2011).
[21] People v. Bansil, 364 Phil. 22, 31-32 (1999).
[22] 269 Phil. 225 (1990).
[23] Id. at 232.
[24] People v. Villareal, 706 Phil. 511, 517-518 (2013).
[25] SEC. 29. Confiscation of Driver's License. — Law
enforcement and peace officers of other agencies
duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or
any regulations issued pursuant thereto, or of local
traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the
driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize
the driver to operate a motor vehicle for a period
not exceeding seventy-two hours from the time and
date of issue of said receipt. The period so fixed in
the receipt shall not be extended, and shall become
invalid thereafter. Failure of the driver to settle his
case within fifteen days from the date of
apprehension will be a ground for the suspension
and/or revocation of his license.
[26] Luz v. People, 683 Phil. 399, 406 (2012).

[*] [27] TSN, April 30, 2009. p. 8.

Designated as Additional Member per Special
Order No. 2587 dated August 28, 2018.
[1] Rollo, pp. 18-32.
[2] Penned by Associate Justice Leoncia Real-
Dimagiba, with Associate Justices Ramon R. Garcia
and Henri Paul Inting, concurring; id. at 5-12.
[3] Id. at 13.
[28] People v. Ganguso, 320 Phil. 324, 335 (1995).
[29] Jacaban v. People, 756 Phil. 523, 532
(2015); Gonzales v. CA, 343 Phil. 297, 305 (1997).
[30] 304 Phil. 118 (1994).
[31] Id. at 130.
[32] Jacaban v. People, supra note 29; People v. De

[4] Rendered by Judge Arcadio I. Manigbas; id. at 35- Gracia, id.

[33] People v. De Gracia, id. at 131-132.
44.
[5] Id. at 5-6. [34] Rollo, p. 8.

[6] Id. at 6. [35] People v. Salidaga, 542 Phil. 295, 308-309 (2007).

[7] Id. at 6-7. [36] Marcos v. Sandiganbayan (1st Division), 357 Phil.

[8] Id. at 7. 762, 783 (1998).

[9] Id. [37] People v. Salidaga, supra note 35.

[10] Id. [38] People v. Maraorao, 688 Phil. 458, 466-467

[11] Id. (2012).

[12] Id. at 7-8.
[13] Id. at 8.
[14] Id. at 6.
[15] Id.
 G.R. No. 200370 June 7, 2017
MARIO VERIDIANO y SAPI, petitioner vs.
PEOPLE OF THE PHILIPPINES, respondent
DECISION
LEONEN, J.:
Through this Petition for Review
on Certiorari, 1 Mario Veridiano y Sapi (Veridiano)
assails the Decision2 dated November 18, 2011 and
Resolution3 dated January 25, 2012 of the Court of
Appeals in CA-G.R. CR No. 33588, which affirmed his
conviction for violation of Article II, Section 11 of
Republic Act No. 9165.4
In an Information filed before the Regional Trial
Court of San Pablo City, Laguna,5 Veridiano was
charged with the crime of illegal possession of
dangerous drugs. The Information read:
That on or about January 15, 2008, in the
Municipality of Nagcarlan, Province of Laguna and
within the jurisdiction of this Honorable Court, the
above-named accused, not being permitted or
authorized by law, did then and there willfully,
unlawfully and feloniously have in his possession,
control and custody one (1) small heat-sealed
transparent plastic sachet containing 2. 72 grams of
dried marijuana leaves, a dangerous drug.
CONTRARY TO LAW.6
On October 9, 2008, Veridiano was arraigned. He
pleaded not guilty to the offense charged. Trial on
the merits ensued.7
During trial, the prosecution presented PO 1
Guillermo Cabello (PO 1 Cabello) and POI Daniel
Solano (POI Solano) to testify.8
According to the prosecution, at about 7:20 a.m. of
January 15, 2008, a concerned citizen called a
certain P03 Esteves, police radio operator of the
Nagcarlan Police Station, informing him that a
certain alias "Baho," who was later identified as
Veridiano, was on the way to San Pablo City to
obtain illegal drugs.9
P03 Esteves immediately relayed the information to
PO I Cabello and P02 Alvin Vergara (P02 Vergara)
who were both on duty. 10 Chief of Police June
Urquia instructed POI Cabello and P02 Vergara to
set up a checkpoint at Barangay Taytay, Nagcarlan,
Laguna. 11
The police officers at the checkpoint personally
knew Veridiano.
They allowed some vehicles to pass through after
checking that he was not on board. 12 At around
10:00 a.m., they chanced upon Veridiano inside a
passenger jeepney coming from San Pablo,
Laguna. 13 They flagged down the jeepney and
asked the passengers to disembark. 14 The police
officers instructed the passengers to raise their t-
shirts to check for possible concealed weapons and
to remove the contents of their pockets.15
The police officers recovered from Veridiano "a tea
bag containing what appeared to be
marijuana." 16 POI Cabello confiscated the tea bag
and marked it with his initials. 17 Veridiano was
arrested and apprised of his constitutional
rights. 18 He was then brought to the police
station.19
At the police station, PO 1 Cabello turned over the
seized tea bag to PO 1 Solano, who also placed his
initials. 20 PO 1 Solano then made a laboratory
examination request, which he personally brought
with the seized tea bag to the Philippine National
Police Crime Laboratory.21 The contents of the tea
bag tested positive for marijuana.22
For his defense, Veridiano testified that he went to
the fiesta in San Pablo City on January 15,
2008.23 After participating in the festivities, he
decided to go home and took a passenger jeepney
bound for Nagcarlan.24 At around 10:00 a.m., the
jeepney passed a police checkpoint in Barangay
Taytay, Nagcarlan.25 Veridiano noticed that the
jeepney was being followed by three (3)
motorcycles, each with two (2) passengers in civilian
attire.26
When the jeepney reached Barangay Buboy,
Nagcarlan, the motorcyclists flagged down the
jeepney.27 Two (2) armed men boarded the jeepney
and frisked Veridiano.28 However, they found
nothing on his person.29 Still, Veridiano was
accosted and brought to the police station where he
was informed that "illegal drug was ... found in his
possession. "30
In the Decision dated July 16, 2010,31
the Regional
Trial Court found Veridiano guilty beyond
reasonable doubt for the crime of illegal possession
of marijuana. Accordingly, he was sentenced to
suffer a penalty of imprisonment of twelve (12)
years and one (1) day, as minimum, to twenty (20)
years, as maximum, and to pay a fine of
₱300,000.00.32
Veridiano appealed the decision of the trial court
asserting that "he was illegally arrested."33 He
argued that the tea bag containing marijuana is
"inadmissible in evidence [for] being the 'fruit of a
poisonous tree. "[['34]] Veridiano further argued
that the police officers failed to comply with the rule
on chain of custody. 35
On the other hand, the prosecution asserted that
"[t]he legality of an arrest affects only the
jurisdiction of the court over [the person of the
accused]."36 Thus, by entering his plea, Veridiano
waived his right to question any irregularity in his
arrest.37 With regard to the alleged illegal
warrantless search conducted by the police officers,
the prosecution argued that Veridiano' s
"submissive deportment at the time of the search"
indicated that he consented to the warrantless
search. 38
On November 18, 2011, the Court of Appeals
rendered a Decision39 affirming the guilt
ofVeridiano.40
The Court of Appeals found that "Veridiano was
caught in jlagrante delicto" of having marijuana in
his possession.41Assuming that he was illegally
arrested, Veridiano waived his right to question any
irregularity that may have attended his arrest when
he entered his plea and submitted himself to the
jurisdiction of the court.42 Furthermore, the Court of
Appeals held that Veridiano consented to the
warrantless search because he did not protest when
the police asked him to remove the contents of his
pocket.43
Veridiano moved for reconsideration, which was
denied in the
Resolution dated January 25, 2012.44
On March 16, 2012, Veridiano filed a Petition for
Review on Certiorari.45
Petitioner argues that the tea bag containing
marijuana leaves was seized in violation of his right
against unreasonable searches and seizures.46 He
asserts that his arrest was illegal.47 Petitioner was
merely seated inside the jeepney at the time of his
apprehension. He did not act in any manner that
would give the police officers reasonable ground to
believe that he had just committed a crime or that
he was committing a crime. 48 Petitioner also asserts
that reliable information is insufficient to constitute
probable cause that would support a valid
warrantless arrest. 49
Since his arrest was illegal, petitioner argues· that
"the accompanying [warrantless] search was
likewise illegal."50Hence, under Article III, Section
2,51 in relation to Article III, Section 3(2)52 of the
Constitution, the seized tea bag containing
marijuana is "inadmissible in evidence [for] being
the fruit of a poisonous tree."53
Nevertheless, assuming that the seized tea bag
containing marijuana is admissible in evidence,
petitioner contends that the prosecution failed to
preserve its integrity.54 The apprehending team did
not strictly comply with the rule on chain of custody
under Section 21 of the Implementing Rules and
Regulations of Republic Act No. 9165.55
In a Resolution dated June 13, 2012, this Court
required respondent to file a comment on the
petition. 56 In the Manifestation and Motion dated
August 1, 2012,57 respondent stated that it would
no longer file a comment.
The following issues are for this Court's resolution:
First, whether there was a valid warrantless arrest;
Second, whether there was a valid warrantless
search against petitioner; and
Lastly, whether there is enough evidence to sustain
petitioner's conviction for illegal possession of
dangerous drugs.
The Petition is granted.
I judge after examination under oath or affirmation
The invalidity of an arrest leads to several
consequences among which are: (a) the failure to
acquire jurisdiction over the person of an accused;
(b) criminal liability of law enforcers for illegal
arrest; and (c) any search incident to the arrest
becomes invalid thus rendering the evidence
acquired as constitutionally inadmissible.
Lack of jurisdiction over the person of an accused as
a result of an invalid arrest must be raised through
a motion to quash before an accused enters his or
her plea. Otherwise, the objection is deemed
waived and an accused is "estopped from
questioning the legality of his [or her] arrest."58
The voluntary submission of an accused to the
jurisdiction of the court and his or her active
participation during trial cures any defect or
irregularity that may have attended an arrest. 59 The
reason for this rule is that "the legality of an arrest
affects only the jurisdiction of the court over the
person of the accused."60
Nevertheless, failure to timely object to the illegality
of an arrest does not preclude an accused from
questioning the admissibility of evidence
seized.61 The inadmissibility of the evidence is not
affected when an accused fails to question the
court's jurisdiction over his or her person in atimely
manner. Jurisdiction over the person of an accused
and the constitutional inadmissibility of evidence
are separate and mutually exclusive consequences
of an illegal arrest.
As a component of the right to privacy,62 the
fundamental right against unlawful searches and
seizures is guaranteed by no less than the
Constitution. Article III, Section 2 of the Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized. 63
To underscore the importance of an individual's
right against unlawful searches and seizures, Article
III, Section 3(2) of the Constitution considers any
evidence obtained in violation of this right as
inadmissible. 64
The Constitutional guarantee does not prohibit all
forms of searches and seizures.65 It is only directed
against those that are unreasonable.66 Conversely,
reasonable searches and seizures fall outside the
scope of the prohibition and are not forbidden. 67
In People v. Aruta, 68 this Court explained that the
language of the Constitution implies that "searches
and seizures are normally unreasonable unless
authorized by a validly issued search warrant or
warrant of arrest."69 The requirements of a valid
search warrant are laid down in Article III, Section 2
of the Constitution and reiterated in Rule 126,
Section 4 of the Rules on Criminal Procedure. 70
However, People v. Cogaed71 clarified that there are
exceptional circumstances "when searches are
reasonable even when warrantless."72 The following
are recognized instances of permissible warrantless
searches laid down in jurisprudence: (1) a
"warrantless search incidental to a lawful
arrest,"73 (2) search of "evidence in 'plain view,"' (3)
"search of a moving vehicle," (4) "consented
warrantless search[es]," (5) "customs search," (6)
"stop and frisk," and (7) "exigent and emergency
circumstances."74
There is no hard and fast rule in determining when
a search and seizure is reasonable. In any given
situation, "[w]hat constitutes a reasonable ... search
... is purely a judicial question," the resolution of
which depends upon the unique and distinct factual
circumstances. 75 This may involve an inquiry into
"the purpose of the search or seizure, the presence
or absence of probable cause, the manner in which
the search and seizure was made, the place or thing
searched, and the character of the articles
procured." 76
II
Pertinent to the resolution of this case is the
determination of whether the warrantless search
was incidental to a lawful arrest. The Court of
Appeals concluded that petitioner was caught in
flagrante delicto of having marijuana in his
possession making the warrantless search lawful. 77
This Court disagrees. Petitioner's warrantless arrest
was unlawful.
A search incidental to a lawful arrest requires that
there must first be a lawful arrest before a search is
made. Otherwise stated, a lawful arrest must
precede the search; "the process cannot be
reversed."78 For there to be a lawful arrest, law
enforcers must be armed with a valid warrant.
Nevertheless, an arrest may also be effected
without a warrant.
There are three (3) grounds that will justify a
warrantless arrest. Rule 113, Section 5 of the
Revised Rules of Criminal Procedure provides:
Section 5. Arrest Without Warrant; When Lawful. -A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and
he has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
The first kind of warrantless arrest is known as an in
flagrante delicto arrest. The validity of this
warrantless arrest requires compliance with the
overt act test79 as explained in Cogaed:
[F]or a warrantless arrest of in flagrante delicto to
be affected, "two elements must concur: (1) the
person to be arrested must execute an overt act
indicating that he [or she] has just committed, is
actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence
or within the view of the arresting officer."80
Failure to comply with the overt act test renders
an inflagrante delicto arrest constitutionally infirm.
In Cogaed, the warrantless arrest was invalidated as
an in flagrante delicto arrest because the accused
did not exhibit an overt act within the view of the
police officers suggesting that he was in possession
of illegal drugs at the time he was apprehended. 81
The warrantless search in People v. Racho82 was also
considered unlawful.83 The police officers received
information that a man was in possession of illegal
drugs and was on board a Genesis bus bound for
Baler, Aurora. The informant added that the man
was "wearing a red and white striped [t]-
shirt."84 The police officers waited for the bus along
the national highway.85 When the bus arrived, Jack
Racho (Racho) disembarked and waited along the
highway for a tricycle.86 Suddenly, the police officers
approached him and invited him to the police
station since he was suspected of having shabu in
his possession.87 As Racho pulled out his hands from
his pocket, a white envelope fell yielding a sachet of
shabu.88
In holding that the warrantless search was invalid,
this Court observed that Racho was not "committing
a crime in the presence of the police officers" at the
time he was apprehended.89 Moreover, Racho's
arrest was solely based on a tip.90 Although there
are cases stating that reliable information is
sufficient to justify a warrantless search incidental
to a lawful arrest, they were covered under the
other exceptions to the rule on warrantless
searches.91
Rule 113, Section 5(b) of the Rules of Court pertains
to a hot pursuit arrest.92 The rule requires that an
offense has just been committed. It connotes
"immediacy in point of time."93 That a crime was in
fact committed does not automatically bring the
case under this rule. 94 An arrest under Rule 113,
Section 5(b) of the Rules of Court entails a time
element from the moment the crime is committed
up to the point of arrest.
Law enforcers need not personally witness the
commission of a crime. However, they must have
personal knowledge of facts and circumstances
indicating that the person sought to be arrested
committed it.
People v. Gerente95 illustrates a valid arrest under
Rule 113, Section 5(b) of the Rules of Court.
In Gerente, the accused was convicted for murder
and for violation of Republic Act No. 6425.96 He
assailed the admissibility of dried marijuana leaves
as evidence on the ground that they were allegedly
seized from him pursuant to a warrantless
arrest.97 On appeal, the accused's conviction was
affirmed.98 This Court ruled that the warrantless
arrest was justified under Rule 113, Section 5(b) of
the Rules of Court. The police officers had personal
knowledge of facts and circumstances indicating
that the accused killed the victim:
The policemen arrested Gerente only some three (3)
hours after Gerente and his companions had killed
Blace. They saw Blace dead in the hospital and when
they inspected the scene of the crime, they found
the instruments of death: a piece of wood and a
concrete hollow block which the killers had used to
bludgeon him to death. The eye-witness, Edna
Edwina Reyes, reported the happening to the
policemen and pinpointed her neighbor, Gerente, as
one of the killers. Under those circumstances, since
the policemen had personal knowledge of the
violent death of Blace and of facts indicating that
Gerente and two others had killed him, they could
lawfully arrest Gerente without a warrant. If they
had postponed his arrest until they could obtain a
warrant, he would have fled the law as his two
companions did.99 (Emphasis supplied)
The requirement that law enforcers must have
personal knowledge of facts surrounding the
commission of an offense was underscored in In Re
Saliba v. Warden. 100
In Re Saliba involved a petition for habeas corpus.
The police officers suspected Datukan Salibo
(Salibo) as one (1) of the accused in the Maguindano
Massacre. 101 Salibo presented himself before the
authorities to clear his name. Despite his
explanation, Salibo was apprehended and
detained. 102 In granting the petition, this Court
pointed out that Salibo was not restrained under a
lawful court process or order. 103 Furthermore, he
was not arrested pursuant to a valid warrantless
arrest: 104
It is undisputed that petitioner Salibo presented
himself before the Datu Hofer Police Station to clear
his name and to prove that he is not the accused
Butukan S. Malang. When petitioner Salibo was in
the presence of the police officers of Datu Hofer
Police Station, he was neither committing nor
attempting to commit an offense. The police officers
had no personal knowledge of any offense that he
might have committed. Petitioner Salibo was also
not an escapee prisoner. 105 (Emphasis supplied)
In this case, petitioner's arrest could not be justified
as an inflagrante delicta arrest under Rule 113,
Section 5(a) of the Rules of Court. He was not
committing a crime at the checkpoint. Petitioner
was merely a passenger who did not exhibit any
unusual conduct in the presence of the law
enforcers that would incite suspicion. In effecting
the warrantless arrest, the police officers relied
solely on the tip they received. Reliable information
alone is insufficient to support a warrantless arrest
absent any overt act from the person to be arrested
indicating that a crime has just been committed,
was being committed, or is about to be
committed.10
The warrantless arrest cannot likewise be justified
under Rule 113, Section 5(b) of the Revised Rules of
Criminal Procedure. The law enforcers had no
personal knowledge of any fact or circumstance
indicating that petitioner had just committed an
offense.
A hearsay tip by itself does not justify a warrantless
arrest. Law enforcers must have personal
knowledge of facts, based on their observation, that
the person sought to be arrested has just committed
a crime. This is what gives rise to probable cause
that would justify a warrantless search under Rule
113, Section 5(b) of the Revised Rules of Criminal
Procedure.
III
The warrantless search cannot be justified under the
reasonable suspicion requirement in "stop and
frisk" searches.
A "stop and frisk" search is defined in People v.
Chua 107 as "the act of a police officer to stop a
citizen on the street, interrogate him, and pat him
for weapon(s) or contraband." 108 Thus, the
allowable scope of a "stop and frisk" search is
limited to a "protective search of outer clothing for
weapons."109
Although a "stop and frisk" search is a necessary law
enforcement measure specifically directed towards
crime prevention, there is a need to safeguard the
right of individuals against unreasonable searches
and seizures. 110
Law enforcers do not have unbridled discretion in
conducting "stop and frisk" searches. While
probable cause is not required, a "stop and frisk"
search cannot be validated on the basis of a
suspicion or hunch. 111 Law enforcers must have a
genuine reason to believe, based on their
experience and the particular circumstances of each
case, that criminal activity may be afoot. 112 Reliance
on one (1) suspicious activity alone, or none at all,
cannot produce a reasonable search. 113
In Manalili v. Court of Appeals, 114 the police officers
conducted surveillance operations in Caloocan City
Cemetery, a place reportedly frequented by drug
addicts.115 They chanced upon a male person who
had "reddish eyes and [was] walking in a swaying
manner."116 Suspecting that the man was high on
drugs, the police officers approached him,
introduced themselves, and asked him what he was
holding.117 However, the man resisted. 118 Upon
further investigation, the police officers found
marijuana in the man's possession. 119 This Court
held that the circumstances of the case gave the
police officers justifiable reason to stop the man and
investigate if he was high on drugs. 120
In People v. Solayao, 121 the police officers were
conducting an intelligence patrol to verify reports
on the presence of armed persons within
Caibiran.122 They met a group of drunk men, one (1)
of whom was the accused in a camouflage
uniform. 123 When the police officers approached,
his companions fled leaving behind the accused who
was told not to run away. 124 One (1) of the police
officers introduced himself and seized from the
accused a firearm wrapped in dry coconut
leaves. 125 This Court likewise found justifiable
reason to stop and frisk the accused when "his
companions fled upon seeing the government
agents." 126
The "stop and frisk" searches in these two (2) cases
were considered valid because the accused in both
cases exhibited overt acts that gave law enforcers
genuine reason to conduct a "stop and frisk" search.
In contrast with Manalili and Solayao, the
warrantless search in Cogaed127 was considered as
an invalid "stop and frisk" search because of the
absence of a single suspicious circumstance that
would justify a warrantless search.
In Cogaed, the police officers received information
that a certain Marvin Buya would be transporting
marijuana. 128 A passenger jeepney passed through
the checkpoint set up by the police officers. The
driver then disembarked and signaled that two (2)
male passengers were carrying marijuana. 129 The
police officers approached the two (2) men, who
were later identified as Victor Cogaed (Cogaed) and
Santiago Dayao, and inquired about the contents of
their bags. 130
Upon further investigation, the police officers
discovered three (3) bricks of marijuana in Cogaed's
bag. 131 In holding that the "stop and frisk" search
was invalid, this Court reasoned that "[t]here was
not a single suspicious circumstance" that gave the
police officers genuine reason to stop the two (2)
men and search their belongings. 132Cogaed did not
exhibit any overt act indicating that he was in
possession of marijuana. 133
Similar to Cogaed, petitioner in this case was a mere
passenger in a jeepney who did not exhibit any act
that would give police officers reasonable suspicion
to believe that he had drugs in his possession.
Reasonable persons will act in a nervous manner in
any check point. There was no evidence to show
that the police had basis or personal knowledge that
would reasonably allow them to infer anything
suspicious.
IV
Moreover, petitioner's silence or lack of resistance
can hardly be considered as consent to the
warrantless search. Although the right against
unreasonable searches and seizures may be
surrendered through a valid waiver, the prosecution
must prove that the waiver was executed with clear
and convincing evidence. 134 Consent to a
warrantless search and seizure must be
"unequivocal, specific, intelligently given ... [and
unattended] by duress or coercion."135
The validity of a consented warrantless search is
determined by the totality of the
136
circumstances. This may involve an inquiry into
the environment in which the consent was given
such as "the presence of coercive police
procedures."137
Mere passive conformity or silence to the
warrantless search is only an implied acquiescence,
which amounts to no consent at
138
all. In Cogaed, this Court observed:
Cogaed's silence or lack of aggressive objection was
a natural reaction to a coercive environment
brought about by the police officer's excessive
intrusion into his private space. The prosecution and
the police carry the burden of showing that the
waiver of a constitutional right is one which is
knowing, intelligent, and free from any coercion. In
all cases, such waivers are not to be presumed.139
The presence of a coercive environment negates the
claim that petitioner consented to the warrantless
search.
V
Another instance of a valid warrantless search is a
search of a moving vehicle. The rules governing
searches and seizures have been liberalized when
the object of a search is a vehicle for practical
purposes.140 Police officers cannot be expected to
appear before a judge and apply for a search
warrant when time is of the essence considering the
efficiency of vehicles in facilitating transactions
involving contraband or dangerous
141
articles. However, the inherent mobility of
vehicles cannot justify all kinds of searches.142 Law
enforcers must act on the basis of probable
cause. 143
A checkpoint search is a variant of a search of a
moving vehicle. 144 Due to the number of cases
involving warrantless ·searches in checkpoints and
for the guidance of law enforcers, it is imperative to
discuss the parameters by which searches in
checkpoints should be conducted.
Checkpoints per se are not invalid. 145 They are
allowed in exceptional circumstances to protect the
lives of individuals and ensure their safety. 146 They
are also sanctioned in cases where the
government's survival is in danger. 147 Considering
that routine checkpoints intrude "on [a]
motorist'sright to 'free passage'"148 to a certain
extent, they must be "conducted in a way least
intrusive to motorists." 149 The extent of routine
inspections must be limited to a visual search.
Routine inspections do not give law enforcers carte
blanche to perform warrantless searches. 150
In Valmonte v. De Villa, 151 this Court clarified that
"[f]or as long as the vehicle is neither searched nor
its occupants subjected to a body search, and the
inspection of the vehicle is limited to a visual search,
said routine checks cannot be regarded as violative
of an individual's right against unreasonable
search[es]."152 Thus, a search where an "officer
merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds, or simply
looks into a vehicle, or flashes a light therein" is not
unreasonable. 153
However, an extensive search may be conducted on
a vehicle at a checkpoint when law enforcers have
probable cause to believe that the vehicle's
passengers committed a crime or when the vehicle
contains instruments of an offense. 154
Thus, routinary and indiscriminate searches of
moving vehicles are allowed if they are limited to a
visual search. This holds especially true when the
object of the search is a public vehicle where
individuals have a reasonably reduced expectation
of privacy. On the other hand, extensive searches
are permissible only when they are founded upon
probable cause. Any evidence obtained will be
subject to the exclusionary principle under the
Constitution.
That the object of a warrantless search is allegedly
inside a moving vehicle does not justify an extensive
search absent probable cause. Moreover, law
enforcers cannot act solely on the basis of
confidential or tipped information. A tip is still
hearsay no matter how reliable it may be. It is not
sufficient to constitute probable cause in the
absence of any other circumstance that will arouse
suspicion.
Although this Court has upheld warrantless
searches of moving vehicles based on tipped
information, there have been other circumstances
that justified warrantless searches conducted by the
authorities.
In People v. Breis,155 apart from the tipped
information they received, the law enforcement
agents observed suspicious behavior on the part of
the accused that gave them reasonable ground to
believe that a crime was being committed.156 The
accused attempted to alight from the bus after the
law enforcers introduced themselves and inquired
about the ownership of a box which the accused had
in their possession. 157 In their attempt to leave the
bus, one (1) of the accused physically pushed a law
enforcer out of the way. 158 Immediately alighting
from a bus that had just left the terminal and leaving
one's belongings behind is unusual conduct.159
In People v. Mariacos, 160 a police officer received
information that a bag containing illegal drugs was
about to be transported on a passenger
jeepney. 161 The bag was marked with "O.K."162 On
the basis of the tip, a police officer conducted
surveillance operations on board a jeepney.163 Upon
seeing the bag described to him, he peeked inside
and smelled the distinct odor of marijuana
emanating from the bag. 164 The tipped information
and the police officer's personal observations gave
rise to probable cause that rendered the
warrantless search valid. 165
The police officers
in People v. Ayangao166 and People v. Libnao167 like
wise received tipped information regarding the
transport of illegal drugs. In Libnao, the police
officers had probable cause to arrest the accused
based on their three (3)-month long surveillance
operation in the area where the accused was
arrested. 168 On the other hand, in Ayangao, the
police officers noticed marijuana leaves protruding
through a hole in one (1) of the sacks carried by the
accused. 169
In the present case, the extensive search conducted
by the police officers exceeded the allowable limits
of warrantless searches.1âwphi1 They had no
probable cause to believe that the accused violated
any law except for the tip they received. They did
not observe any peculiar activity from the accused
that may either arouse their suspicion or verify the
tip. Moreover, the search was flawed at its
inception. The checkpoint was set up to target the
arrest of the accused.
There are different hybrids of reasonable
warrantless searches. There are searches based on
reasonable suspicion as in Posadas v. Court of
Appeals 170 where this Court justified the
warrantless search of the accused who attempted
to flee with a buri bag after the police officers
identified themselves. 171
On the other hand, there are reasonable searches 8 Id. at 10.
because of heightened security. In Dela Cruz v. 9 Id.
People, 172 the search conducted on the accused 10 Id.

was considered valid because it was done in 11 Id.

accordance with routine security measures in 12 Id.

ports. 173 This case, however, should not be 13 Id. at 11.

construed to apply to border searches. Border 14 Id. at 34.

searches are not unreasonable per se; 174 there is a 15 Id.

"reasonable reduced expectation of privacy" when 16 Id.

travellers pass through or stop at airports or other 17 Id.

ports of travel. 175 18 Id. at 66, Regional Trial Court Decision.

19 Id. at 1 I.

The warrantless search conducted by the police 20 Id.

officers is invalid. Consequently, the tea bag 21 Id. at 35.

containing marijuana seized from petitioner is 22 Id. at 11.

rendered inadmissible under the exclusionary 23 Id.

principle in Article III, Section 3(2) of the 24 Id.

Constitution. There being no evidence to support his 25 Id.

conviction, petitioner must be acquitted. 26 Id.

27 Id.

WHEREFORE, the Decision dated July 16, 2010 of 28 Id.

the Regional Trial Court in Criminal Case No. 16976- 29 Id.

SP and the Decision dated November 18, 2011 and 30 Id. at 11-12.

Resolution dated January 25, 2012 of the Court of 31 Id. at 64-72. The Decision, docketed as Crim. Case

Appeals in CA-G.R. CR. No. 33588 No. 16976-SP, was penned by Presiding Judge
are REVERSED and SET ASIDE. Petitioner Mario Agripino G. Morga of Branch 32, Regional Trial Court
Veridiano y Sapi is hereby ACQUITTED and is of San Pablo City.
ordered immediately RELEASED from confinement 32 Id. at 72.

unless he is being held for some other lawful cause. 33 Id. at 37.
34 Id.

SO ORDERED. 35 Id. at 41.

36 Id. at 88, Brief for the Plaintiff-Appellee.

Carpio, (Chairperson), and Peralta, JJ., concur. 37 Id.

Mendoza, and Martires, JJ., on official leave. 38 Id.
1 Rollo, pp. 8-29, Petition for Review on Certiorari. 39 Id. at 31--44.
2 Id. at 31-44. The Decision was penned by Associate 40 Id. at 43.

Justice Remedios A. Salazar-Fernando and 41 Id. at 37.

concurred in by Associate Justices Sesinando E. 42 Id. at 40.

Villon and Amy C. Lazaro-Javier of the Second 43 Id.

Division, Court of Appeals, Manila. 44 Id. at 46--47.

3 Id. at 46-47. The Resolution was penned by 45 Id. at 8-29.

Associate Justice Remedios A. Salazar-Fernando and 46 Id. at 14-18.

concurred in by Associate Justices Mario V. Lopez 47 Id. at 14-16.

and Amy C. Lazaro-Javier of the Special Second 48 Id. at 16.

Division, Court of Appeals, Manila. 49 Id.

4 Comprehensive Dangerous Drugs Act (2002). 50 Id. at 17.
5 Rollo, p. 64, Regional Trial Court Decision. 51 CONST. art. III, sec. 2 provides:
6 Id.
Section 2. The right of the people to be
7 Id.
secure in their persons, houses, papers, and
 effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
52 CONST., art. III, sec. 3(2) provides:
Section 3. (2) Any evidence obtained in
violation of this or the preceding section
shall be inadmissible for any purpose in any
proceeding.
53 Rollo, pp. 17-18.
54 Id. at 19.
55 Id. at 19-21.
56 Id. at 106.
57 Id. at 107-111, Manifestation and Motion (In Lieu
of Comment).
58 People v. Lopez, Jr. y Mancilla, 315 Phil. 59, 71-72
(1995) [Per J. Kapunan, First Division]. See Filoteo, Jr.
v. Sandiganbayan, 331 Phil. 531, 578 (1996) [Per J.
Panganiban, En Banc]; Rebellion v. People, 637 Phil.
339, 345 (2010) [Per J. Del Castillo, First Division].
59 People v. Lapitaje, 445 Phil. 729, 748 (2003) [Per
J. Austria-Martinez, En Banc]; Rebellion v.
People, 637 Phil. 339, 345 (2010) [Per J. Del Castillo,
First Division].
60 People v. Es cordial, 424 Phil. 627, 651-652 (2002)
[Per J. Mendoza, En Banc] citing People v.
Timon, 346 Phil. 572 (1997) [Per J. Panganiban, Third
Division].
61 Homar v. People, G.R. No. 182534, September 2,
2015
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?fi
le=/jurisprudence/20l5/september2015/182534.pd
f> 9 [Per J. Brion, Second Division]; Sindac v.
People, G.R. No. 220732, September 6, 2016 <
http://sc.judiciary.gov.ph/pdf/web/viewer.html?fil
e=/j
urisprudence/20I6/september2016/220732.pdf>
10-11 [Per J. Perlas-Bernabe, First Division]; People
v. Racho, 640 Phil. 669, 681 (2010) [Per J. Nachura,
Second Division]; People v. Martinez y Angeles, 652
Phil. 347, 359 (20 IO) [Per J. Mendoza, Second
Division]. See Antiquera y Codes v. People, 723 Phil.
425, 432 (2013) [Per J. Abad, Third Division].
62 People v. Cogaed, 740 Phil. 212, 220 (2014) [Per J.
Leonen, Third Division].
63 CONST., art. III, sec. 2.
64 CONST., art. III, sec. 3(2) provides:
Section 3.
(2) Any evidence obtained in violation of this
or the preceding section shall be
inadmissible for any purpose in any
proceeding.
65 People v. Aruta, 351 Phil. 868, 878 (1998) [Per J.
Romero, Second Division].
66 Id.
67 Valmonte v. De Villa, 258 Phil. 838, 843 (1989)
[Per J. Padilla, En Banc].
68 351 Phil. 868 (1998) [Per J. Romero, Second
Division].
69 Id. at 878.
70 Revised Rules of Criminal Procedure, A.M. No. 00-
5-03-SC, Rule 126, sec. 4 provides: Section
4. Requisites for issuing search warrant. - A search
warrant shall not issue except upon probable cause
in connection with one specific offense to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the things to be seized which may be anywhere
in the Philippines.
71 740 Phil. 212 (2014) [Per J. Leonen, Third
Division].
72 Id. at 227.
73 The Revised Rules of Criminal Procedure allows a
warrantless search incidental to a lawful arrest.
RULES OF COURT, Rule 126, sec. 13 provides:
Section 13. Search incident to lawful arrest. - A
person lawfully arrested may be searched for
dangerous weapons or anything that may have been
used or constitute proof in the commission of an
offense without a search warrant.
74 People v. Cogaed, 740 Phil. 212, 228 (2014) [Per J.
Leonen, Third Division], citing People v. Aruta, 351
Phil. 868, 879-880 (1998) [Per J. Romero, Third
Division].
75 Valmonte v. De Villa, 258 Phil. 838, 843 (1989)
[Per J. Padilla, En Banc].
76 People v. Racho, 640 Phil. 669, 676 (2010) [Per J.
Nachura, Third Division] citing People v.
Nuevas, 545 Phil. 356 (2007) [Per J. Tinga, Second
Division].
77 Rollo, p. 37.
78 People v. Racho, 640 Phil. 669, 676 (2010) [Per J.
Nachura, Second Division].
79 See People v. Cogaed, 740 Phil. 212, 238 (2014)
106 People v. Tudtud, 458 Phil. 752, 773 (2003) [Per J.
Tinga, Second Division]; People v. Nuevas, 545 Phil.
356, 371-372 (2007) [Per J. Tinga, Second
Division]; People v. Racho, 640 Phil. 669, 678 (2010)
[Per J. Nachura, Second Division].
107 444 Phil. 757 (2003) [Per J. Ynares-Santiago, First

[Per J. Leonen, Third Division]. Division].

80 Id. citing People v. Chua 444 Phil. 757 (2003) [Per 108 Id. at 773-774.

J. Ynares-Santiago, First Division]. 109 Malacat v. Court of Appeals, 347 Phil. 462, 480
81 Id. at 238-239. (1997) [Per J. Davide, Jr., En Banc].
82 640 Phil. 669 (2010) [Per J. Nachura, Second 110 People v. Cogaed, 740 Phil. 212, 232 (2014) [Per

Division]. J. Leanen, Third Division].

83 Id. at 679-680. 111 Malacat v. Court of Appeals, 347 Phil. 462, 481
84 Id. at 671-672. (1997) [Per J. Davide, Jr., En Banc]. u2 Id.
85 Id. at 672. 113 People v. Cogaed, 740 Phil. 212, 233 (2014) [Per
86 Id. J. Leonen, Third Division] citing J. Bersamin,
87 Id. Dissenting Opinion in Esquillo v. People, 643 Phil.
88 Id. 577 (2010) [Per J. Carpio-Morales, Third Division].
89 Id. 114 345 Phil. 632 (1997) [Per J. Panganiban, Third
90 Id. at 667. Division].
91 Id. This Court cited People v. Maspil, Jr., 266 Phil. 115 Id. at 638.

815 (1990) [J. Gutierrez, Jr., Third Division]; People 116 Id.

v. Bagista, 288 Phil 828 (1992) [J. Nocon, Second 117 Id.

Division]; People v. Balingan, 311 Phil. 290 (1995) [J. 118 Id.

Puno, Second Division]; People v. Lising, 341 Phil. 119 Id.

801 (1997) [Per J. Melo, Third Division]; and People 120 Id. at 647.

v. Montilla, 349 Phil. 640 (1998) [Per J. Regalado, En 121 330 Phil. 811 (1996) [Per J. Romero, Second

Banc]. Division].
92 Malacat v. Court of Appeals, 347 Phil. 462, 479 122 Id. at 814-815.

(1997) [Per J. Davide, En Banc]. 123 Id. at 815.

93 In re Saliba v. Warden, 757 Phil. 630, 656 (2015) 124 Id.

[Per J. Leonen, Second Division] citing the Dissenting 125 Id.

Opinion of J. Teehankee in Ilagan v. Enrile, 223 Phil. 126 Id. at 819.

561 (1985) [Per J. Melencio-Herrera, En Banc]. 127 740 Phil. 212 (2014) [Per J. Leonen, Third
94 Id. Division]
95 292-A Phil. 34 (1993) [Per J. Griño-Aquino, First 128 Id. at 221.

Division]. 129 Id.

96 Id. at 39. 130 Id.
97 Id. 131 Id. at 221-222.
98 Id. 132 Id. at 234.
99 Id. at 40. 133 Id. at 45236-237.
100 757 Phil. 630 (2015) [Per J. Leonen, Second 134 Caballes v. Court of Appeals, 424 Phil. 263, 286

Division]. (2002) [Per J. Puno, First Division].

101 Id. at 634-635. 135 Id. See also People v. Nuevas, 545 Phil. 356, 373
102 Id. at 635. (2007) [Per J. Tinga, Second Division].
103 Id. at 654-655. 136 Id.
104 Id. 137 Id.
105 Id. at 655. 138 See Caballes v. Court of Appeals, 424 Phil. 263,

285 (2002) [Per J. Puno, First Division]; People v.

Cogaed, 740 Phil. 212, 239-240 (2014) [Per J. 167 443 Phil. 506 (2003) [Per J. Puno, Third Division].
Leonen, Third Division]. 168 Id. at 517.
139 People v. Cogaed, 740 Phil. 212, 239 (2014) [Per 169 471 Phil. 379, 384 (2004) [Per J. Corona, Third

J. Leonen, Third Division]. Division].

140 Caballes v. Court of Appeals, 424 Phil. 263, 278 170 266 Phil. 306 (1990) [Per J. Gancayo, First

(2002) [Per J. Puno, First Division]. Division].

141 Id. 171 Id. at 307-312.
142 Id. at 279. 172 G.R. No. 209387, January 11, 2016 <
143 Id. http://sc.judiciary.gov.
144 See People v. Manago, G.R. No. 212340, August ph/pdf/web/viewer.html?file=/jurisprudence/20I6/
17, 2016 < january2016/2093 87. pdf> [Per J. Leonen, Second
http://sc.judiciary.gov.ph/pdf/web/viewer.html?fil Division].
e=/jurisprudence/20l6/august2016/212340.pdf> 9 173 Id. at 22.

[Per J. Perlas-Bernabe, First Division]. 174 Dela Cruz v. People, G.R. No. 209387, January 11,
145 Valmonte v. De Villa, 264 Phil. 265, 269 (1990) 2016 <
[Per J. Padilla, En Banc]. http://sc.judiciary.gov.ph/pdf/web/viewer.html?fil
146 Id. e=/jurisprudence/20l6/january2016/209387.pdf>
147 Id. 16 [Per J. Leonen, Second Division].
148 Id. at 270. 175 Id. at 17.
149 People v. Vinecario, 465 Phil. 192, 206 (2004)

[Per J. Carpio Morales, Third Division].

150 People v. Manago, G.R. No. 212340, August 17,

2016,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?fi
le=/jurisprudence/20l6/august2016/212340 .pdt>
10 [Per J. Perlas-Bernabe, First Division].
151 264 Phil. 265 (1990) [Per J. Padilla, En Banc].
152 Id. at 270.
153 Valmonte v. De Villa, 258 Phil. 838, 843 (1989)

[Per J. Padilla, En Banc].

154 Valmonte v. De Villa, 264 Phil. 265, 271 (1990)

[Per J. Padilla, En Banc]. See People v. Vinecario, 465

Phil. 192 (2004) [Per J. Carpio-Morales, Third
Division].
155 767 Phil. 40 (2015) [Per J. Carpio, Second

Division].
156 Id. at 62-65.
157 Id.
158 Id. at 65.
159 Id. at 64.
160 635 Phil. 315 (2010) [Per J. Nachura, Second

Division].
161 Id. 322-323.
162 Id.
163 Id.
164 Id. at 325.
165 Id. at 331.
166 471 Phil. 379 (2004) [Per J. Corona, Third

Division].
 G.R. No. 150185 May 27, 2004
TERESITA TANGHAL OKABE, petitioner,
vs.
HON. PEDRO DE LEON GUTIERREZ, in his capacity
as Presiding Judge of RTC, Pasay City, Branch 119;
PEOPLE OF THE PHILIPPINES; and CECILIA
MARUYAMA, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari, under
Rule 45 of the Rules of Court, as amended, that part
of the Decision1 of the Court of Appeals in CA-G.R.
SP No. 60732 dismissing her petition for certiorari
under Rule 65 of the Rules of Court, as amended, for
the nullification of the August 25 and 28, 2000
Orders of the respondent judge in Criminal Case No.
00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-
complaint2 and filed the same with the Office of the
City Prosecutor of Pasay City, on December 29,
1999, charging Lorna Tanghal and petitioner
Teresita Tanghal Okabe, a.k.a. Shiela Okabe,
with estafa. In her affidavit, Maruyama
alleged, inter alia, that on December 11, 1998, she
entrusted Y11,410,000 with the peso equivalent of
₱3,993,500 to the petitioner, who was engaged in
the business of "door-to-door delivery" from Japan
to the Philippines. It was alleged that the petitioner
failed to deliver the money as agreed upon, and, at
first, denied receiving the said amount but later
returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the
complainant, respondent Maruyama, submitted the
affidavit of her witnesses, namely, Hermogena
Santiago, Wilma Setsu and Marilette G. Izumiya and
other documentary evidence. In her affidavit, Setsu
alleged that the money which was entrusted to the
petitioner for delivery to the Philippines belonged to
her and her sister Annie Hashimoto, and their
mother Hermogena Sanchez-Quicho, who joined
respondent Maruyama in her complaint against
petitioner Okabe and Tanghal. Respondent
Maruyama, likewise, submitted a reply3 to the
petitioner’s counter-affidavit. After the requisite
preliminary investigation, 2nd Assistant City
Prosecutor Joselito J. Vibandor came out with a
resolution dated March 30, 2000, finding probable
cause for estafaagainst the petitioner.4 Attached to
the resolution, which was submitted to the city
prosecutor for approval, was the
Information5 against the petitioner and
Maruyama’s affidavit-complaint. The city
prosecutor approved the resolution and the
Information dated March 30, 2000 attached
thereto.6
On May 15, 2000, an Information against the
petitioner was filed in the Regional Trial Court of
Pasay City, docketed as Criminal Case No. 00-0749.
The case was raffled to Branch 119 of the court
presided by Judge Pedro de Leon Gutierrez.7 The
accusatory portion of the Information reads:
That on or about December 12, 1998 in
Pasay City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable
Court, the above-named accused defrauded
Cecilia Maruyama and Conchita Quicho,
complainant herein, in the following
manner, to wit: said accused received in
trust from Cecilia Maruyama the amount of
Japanese Yen 1141 (sic) with peso equivalent
to ₱3,839,465.00 under obligation to deliver
the money to Conchita Quicho at the NAIA
International Airport, Pasay City,
immediately upon accused arrival from
Japan, but herein accused once in possession
of the same, did, then and there willfully,
unlawfully and feloniously misappropriate
and convert to her own personal benefit the
said amount, and despite demands accused
failed and refused to do so, to the damage
and prejudice of the complainants in the
aforesaid amount.
Contrary to law.8
Appended to the Information was the affidavit-
complaint of respondent Maruyama and the
resolution of Investigating Prosecutor Vibandor. On
May 19, 2000, the trial court issued a warrant for the
arrest of the petitioner with a recommended bond
of ₱40,000. On June 15, 2000, the petitioner posted
a personal bail bond in the said amount, duly
approved by Judge Demetrio B. Macapagal, the
Presiding Judge of Branch 79 of the RTC of Quezon
City, who forthwith recalled the said warrant. The
approved personal bail bond of the petitioner was
transmitted to the RTC of Pasig City on June 21,
2000. Upon her request, the petitioner was
furnished with a certified copy of the Information,
the resolution and the criminal complaint which
formed part of the records of the said case. The
petitioner left the Philippines for Japan on June 17,
2000 without the trial court’s permission, and
returned to the Philippines on June 28, 2000. She
left the Philippines anew on July 1, 2000, and
returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order
setting the petitioner’s arraignment and pre-trial at
2:00 p.m. of July 16, 2000. On the same day, the
private prosecutor filed an urgent ex parte motion
for the issuance of the hold departure order,
alleging as follows:
3. It has come to the knowledge of private
complainant that there is an impending
marriage within the Philippines of either the
son or daughter of the above-named
accused and that the above-named
accused—who has businesses in Japan, and
is presently in Japan—will soon exit Japan
and enter the Philippines to precisely attend
said wedding;
4. Given [a] the bail was fixed at merely
₱40,000.00 and [b] the considerable
financial capability of the accused, it is a
foregone conclusion that the above-named
accused will, upon arrest, readily and
immediately post bond, and leave for
Japan—thereby frustrating and rendering
inutile the administration of criminal justice
in our country. The speed with which
accused Teresita Sheila Tanghal Okabe can
post bond and leave for Japan—effectively
evading arraignment and plea—thus
necessitates the immediate issuance of a
Hold Departure Order even before her
arrival here in the Philippines;9
The trial court issued an order on the same day,
granting the motion of the private prosecutor for
the issuance of a hold departure order and ordering
the Commission on Immigration and Deportation
(CID) to hold and prevent any attempt on the part of
the petitioner to depart from the Philippines.10 For
her part, the petitioner filed on July 17, 2000 a
verified motion for judicial determination of
probable cause and to defer
proceedings/arraignment, alleging that the only
documents appended to the Information submitted
by the investigating prosecutor were respondent
Maruyama’s affidavit-complaint for estafa and the
resolution of the investigating prosecutor; the
affidavits of the witnesses of the complainant, the
respondent’s counter-affidavit and the other
evidence adduced by the parties were not attached
thereto. The petitioner further alleged that the
documents submitted by the investigating
prosecutor were not enough on which the trial court
could base a finding of probable cause
for estafa against her. She further averred that
conformably to the rulings of this Court in Lim v.
Felix11 and Roberts, Jr. v. Court of Appeals,12 it
behooved the investigating prosecutor to submit
the following to the trial court to enable it to
determine the presence or absence of probable
cause: (a) copies of the affidavits of the witnesses of
the complainant; (b) the counter-affidavit of Okabe
and those of her witnesses; (c) the transcripts of
stenographic notes taken during the preliminary
investigation; and, (d) other documents presented
during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent
Motion To Lift/Recall Hold Departure Order dated
July 17, 2000 and/or allow her to regularly travel to
Japan alleging, thus:
3. Accused is (sic) widow and the legitimate
mother of three (3) children, two (2) of
whom are still minors, namely:
3.1. Okabe, Jeffrey-18 years old born
on 13 August 1981.
3.2. Okabe, Masatoshi-14 years old
and born on 16 October 1985, 3rd
year High School student at
Hoshikuki, Chiba City, Matsugaoka,
High School, residing at Chiba City,
Chuo-Ku, Yahagi-cho, 205,
Telephone No. 043-224-5804.
3.3. Okabe, Tomoki-13 years old and
born on 13 March 1986, 2nd year
High School student at Hoshikuki,
Chiba City, Matsugaoka, High School,
residing at Chiba City, Chuo-Ku,
Yahagi-cho, 205, Telephone No. 043-
224-5804.
3.4. The accused has to attend the
Parents Teachers Association (PTA)
at the Hoshikuki High School where
her two (2) minor sons aforesaid are
presently enrolled and studying
because Okabe, Masatoshi’s
graduation will take place on 26 July
2000.
3.5. The two (2) minor children of the
accused absolutely depend their
support (basic necessities) for foods,
clothings, medicines, rentals,
schooling and all other expenses for
their survival to their legitimate
mother who is the accused herein.
3.6. The issuance of the hold
departure order (HDO) will impair
the inherent custodial rights of the
accused as the legitimate mother
over these two (2) minor children
which is repugnant to law.
3.7. The issuance of the hold
departure order (HDO) will unduly
restrict the accused to her custodial
rights and visitation over her
aforesaid minor children who are
permanently living in Japan.
3.8. The issuance of the hold
departure order (HDO) will unduly
deprived (sic) these minor children to
their right to obtain education and
survival.
4. Accused’s only source of income and
livelihood is door-to-door delivery from
Japan to the Philippines and vice versa which
has been taking place for a very long period
of time and in the process she has been
constantly departing from the Philippines on
a weekly basis and arriving in Japan on the
same frequency, as evidenced by xerox
copies of the pages of her Philippine
Passports which are hereto attached as
Annexes "A," "A-1," "A-2" up to "A-30,"
respectively. To deprive her of this only
source of her livelihood to which the
aforesaid two (2) minor children are deriving
their very survival in a foreign land will (sic)
tantamount to oppression rather than
prosecution and depriving the said minor
sons of their right to live even before trial on
the merits of this case that will (sic)
tantamount to the destruction of the future
of these minor children.13
The private prosecutor opposed the petitioner’s
motions during the hearing on July 21, 2000 which
was also the date set for her arraignment. The
hearing of the motions as well as the arraignment
was reset to 2:00 p.m. of July 26, 2000. On the said
date, the petitioner filed a manifestation objecting
to her arraignment prior to the resolution of her
pending motions. She alleged that her arraignment
for the crime charged should not be made a
condition for the granting of her motion to recall the
hold departure order issued against her. The
arraignment of the petitioner was again reset to
2:00 p.m. of August 28, 2000, pending the resolution
of her two motions. On August 25, 2000, the
petitioner filed a motion for the postponement of
her arraignment alleging that, in case the trial court
ruled adversely thereon, she would refuse to enter
a plea and seek relief from the appellate court. The
court denied the petitioner’s motions on the
following grounds:
(a) Based on its personal examination and
consideration of the Information, the
 affidavit-complaint of respondent
Maruyama and the resolution of the
investigating prosecutor duly approved by
the city prosecutor, the court found
probable cause for the petitioner’s arrest.
Since the petitioner’s motion for a
determination of probable cause was made
after the court had already found probable
cause and issued a warrant for the
petitioner’s arrest, and after the latter filed
a personal bail bond for her provisional
liberty, such motion was a mere surplusage;
(b) When the petitioner posted a personal
bail bond for her provisional liberty, she
thereby waived her right to question the
court’s finding of the existence of probable
cause for her arrest and submitted herself to
the jurisdiction of the court, more so when
she filed the motion for the lifting of the hold
departure order the court issued, and the
motion to defer the proceedings and her
arraignment; and
(c) The hold departure order issued by the
trial court was in accord with Supreme Court
Circular No. 39-97 dated June 19, 1997, as
well as the ruling of this Court in Manotoc,
Jr. v. Court of Appeals.14
When the case was called for the petitioner’s
arraignment at 2:00 p.m., on August 28, 2000, she
refused to plead.15Her counsel advised her, in open
court, not to enter a plea and, with leave of court,
left the courtroom. The court then entered a not
guilty plea for the petitioner.16 It also issued an
order, on the said date, setting the pre-trial and
initial presentation of the evidence of the
prosecution at 8:30 a.m. of September 20, 2000.17
The petitioner then filed with the Court of Appeals a
petition for certiorari under Rule 65 of the Rules of
Court with a plea for a writ of preliminary injunction.
The case was docketed as CA-G.R. SP No. 60732. The
petitioner ascribed the following errors to the trial
court:
I
RESPONDENT COURT GRAVELY ERRED
WHEN IT ISSUED WARRANT OF ARREST
DESPITE OF (SIC) LACK OF PROBABLE CAUSE
II
RESPONDENT COURT HAS VIOLATED THE
RIGHT OF THE PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-
JUDGED THE CONVICTION OF THE
PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS
APPARENT PARTIALITY TOWARDS THE
PROSECUTION AND AGAINST THE
PETITIONER
V
RESPONDENT COURT GRAVELY ERRED
WHEN IT DENIES (SIC) THE MOTION FOR
JUDICIAL DETERMINATION OF PROBABLE
CAUSE PURSUANT TO THE DOCTRINE OF
ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED
WHEN IT DENIES (SIC) THE LIFTING/RECALL
OF THE HDO AND/OR ALLOWING THE
PETITIONER TO TRAVEL TO JAPAN
REGULARLY FOR HUMANITARIAN
CONSIDERATION
VII
RESPONDENT COURT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION WHEN IT ISSUED THE
QUESTIONED ORDERS…18
On January 31, 2001, the CA rendered a
Decision19 partially granting the petition in that the
assailed order of the trial court denying the
petitioner’s motion to lift/recall the hold departure
order was set aside. However, the petitioner’s
motion for reconsideration of the trial court’s
decision was denied and her petition for the
nullification of the August 25, 2000 Order of the
respondent judge was dismissed. The CA ruled that
by posting bail and praying for reliefs from the trial
court, the petitioner waived her right to assail the
respondent judge’s finding of the existence of
probable cause. The appellate court cited the ruling
of this Court in Cojuangco, Jr. v.
20
Sandiganbayan. Thus, the appellate court
affirmed the assailed order of the RTC, based on the
respondent judge’s personal examination of
respondent Maruyama’s affidavit-complaint, the
resolution of the investigating prosecutor and the
Information approved by the city prosecutor, a
finding of probable cause was in order. However,
the appellate court allowed the petitioner to travel
to Japan under the following conditions:
(1) That petitioner post a bond double the
amount of her alleged monetary liability
under the Information filed against her, as
recommended by the Office of the Solicitor
General;
(2) That petitioner inform respondent Court
of each and all of her travel itinerary prior to
leaving the country;
(3) That petitioner make periodic reports
with respondent Court;
(4) That petitioner furnish respondent Court
with all the addresses of her possible place
of residence, both here and in Japan; and
(5) Such other reasonable conditions which
respondent Court may deem appropriate
under the circumstances.21
The appellate court did not resolve the issue of
whether the trial court had prejudged the case and
was partial to the prosecution. The decretal portion
of the decision of the CA reads:
WHEREFORE, premises considered, the
instant special civil action for certiorari is
hereby PARTIALLY GRANTED insofar as the
denial of petitioner’s Motion to Lift/Recall
Hold Departure Order dated 14 July, 2000
and/or Allow the accused to Regularly Travel
to Japan is concerned. In all other respect,
the same is hereby DENIED.
SO ORDERED.22
On March 6, 2001, the petitioner filed a motion for
a partial reconsideration of the decision of the CA
contending that the appellate court erred in
applying the ruling of this court in Cojuangco, Jr. v.
Court of Appeals23 instead of Section 26, Rule 114 of
the Revised Rules on Criminal Procedure. The
petitioner posited that the said rule, which took
effect on December 1, 2000, before the court
rendered its decision, had superseded the ruling of
this Court in the Cojuangco case. However, the
appellate court held that Section 26, Rule 114 of the
Revised Rules on Criminal Procedure cannot be
applied retroactively, because the petitioner had
posted bail on June 15, 2000 before the Revised
Rules on Criminal Procedure took effect.
Hence, the instant petition for review on certiorari
for the reversal of the decision and resolution of the
CA and praying that after due proceedings,
judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this
Honorable Supreme Court that after due
proceedings judgment be rendered in favor
of the petitioner and against the
respondents as follows:
(a) GIVING DUE COURSE to the
instant petition;
(b) ORDERING the REVERSAL and
PARTIALLY SETTING ASIDE of the
Decision promulgated on 31 January
2001 (Annex "A" hereof) of the
Honorable Court of Appeals in CA-
G.R. SP No. 60732 as well as its
Resolution promulgated on 27
September 2001 (Annex "B" hereof);
 (c) ORDERING the DISMISSAL of Crim.
Case No. 00-0749 for lack of probable
cause;
(d) DECLARING the entire
proceedings in Crim. Case No. 00-
0749 as null and void;
(e) ORDERING the private
respondents to pay the petitioners
the following amount:
(i) at least ₱1,000,000.00 as
moral damages;
(ii) at least ₱1,000,000.00 as
exemplary damages;
(iii) at least ₱500,000.00 as
attorney’s fees and for other
expenses of litigation.
(f) ORDERING the private respondent
to pay the costs of this suit.
(g) Petitioner further prays for such
other reliefs just and equitable under
the premises.24
The petitioner asserts that the CA committed the
following reversible errors:
I CRIMINAL INFORMATION.
THE HONORABLE COURT OF APPEALS MADE
A REVERSIBLE ERROR WHEN IT COMPLETELY
DISREGARDED THE APPLICATION OF
SECTION 26, RULE 114 OF THE REVISED
RULES ON CRIMINAL PROCEDURE WHICH
TOOK EFFECT ON 01 DECEMBER 2000
WHICH IS FAVORABLE TO THE
PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE
A REVERSIBLE ERROR IN RULING THAT
"WHATEVER INFIRMITY THERE WAS IN THE
ISSUANCE OF THE WARRANT OF ARREST,
THE SAME WAS CURED WHEN PETITIONER
VOLUNTARILY SUBMITTED TO THE
RESPONDENT COURT’S JURISDICTION WHEN
SHE POSTED BAIL AND FILED MOTIONS
SEEKING AFFIRMATIVE RELIEF SUCH AS
MOTION TO LIFT/RECALL HOLD DEPARTURE
ORDER AND TO ALLOW PETITIONER TO
TRAVEL REGULARLY TO JAPAN (Last
paragraph, Page 9 DECISION dated 31
January 2001)."
III
THE HONORABLE COURT OF APPEALS MADE
A REVERSIBLE ERROR WHEN IT RELIED UPON
THE RULING IN THE CASE OF COJUANGCO,
JR. VS. SANDIGANBAYAN, [300 SCRA 367
(1998)] WHEN IN FACT SAID RULING IS NOW
OBSOLETE AND NO LONGER APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE
A REVERSIBLE ERROR IN RULING THAT
RESPONDENT COURT COMPLIED WITH THE
CONSTITUTIONAL REQUIREMENTS ON THE
ISSUANCE OF WARRANT OF ARREST
WITHOUT PROBABLE CAUSE, WHEN THE
RESPONDENT COURT MERELY RELIED ON
[THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA
MARUYAMA; (ii) RESOLUTION OF THE
INVESTIGATING PROSECUTOR; AND (iii)
V
THE HONORABLE COURT OF APPEALS MADE
A REVERSIBLE ERROR WHEN IT FAILED TO
RULE ON THE PARTIALITY OF THE
RESPONDENT JUDGE IN HANDLING THE
CASE BELOW WHICH IS VIOLATIVE OF THE
PETITIONER’S RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC,
ANGAT, BULACAN) FOR ESTAFA ENTITLED
"PEOPLE VS. SHEILA OKABE"; CIVIL CASE NO.
331-M-98 (RTC, MALOLOS, BULACAN) FOR
 SUM OF MONEY WITH PRELIMINARY
ATTACHMENT ENTITLED "CONCHITA
SANCHEZ-QUICHO VS. SHEILA TERESITA
TANGHAL OKABE"; AND CRIM. CASE NO. 00-
07-19 (RTC, PASAY CITY, BRANCH 119)
ENTITLED "PEOPLE VS. TERESITA TANGHAL
OKABE" CONSTITUTE A VIOLATION OF THE
RULE ON NON-FORUM SHOPPING.25
By way of comment, the Office of the Solicitor
General refuted the petitioner’s assigned errors,
contending as follows:
I
The Court of Appeals did not commit a
reversible error in not applying Section 26,
Rule 114 of the Revised Rules on Criminal
Procedure.
II
The Court of Appeals did not commit a
reversible error in ruling that the infirmity, if
any, in the issuance by the respondent Judge
of the warrant of arrest against petitioner
was cured when petitioner voluntarily
submitted to the trial court’s jurisdiction
when she posted bail and filed motions
seeking for affirmative reliefs from the trial
court, such as the motion to lift/recall Hold
Departure Order (HDO) and to allow
petitioner to travel regularly to Japan.
III
The Court of Appeals did not commit a
reversible error in applying the ruling in
the Cojuangco case.
IV
The Court of Appeals did not commit a
reversible error in finding that respondent
Judge complied with the constitutional
requirements on the issuance of a warrant of
arrest.
V
The Court of Appeals did not commit a
reversible error when it did not rule on the
partiality of the respondent Judge in
handling Criminal Case No. 00-0749.
VI
The Honorable Court of Appeals did not
commit a reversible error when it did not
rule on petitioner’s claim of forum
shopping.26
The Court shall resolve the assigned errors
simultaneously as they are interrelated.
The petitioner asserts that the respondent judge
could not have determined the existence of
probable cause for her arrest solely on the
resolution of the investigating prosecutor and the
undated affidavit-complaint of respondent
Maruyama. She posits that the respondent judge
should have ordered the investigating prosecutor to
submit the affidavits of the witnesses of respondent
Maruyama and the latter’s documentary evidence,
as well as the counter-affidavit of the petitioner and
the transcripts of the stenographic notes, if any,
taken during the preliminary investigation. The
petitioner adds that the respondent judge should
have personally reviewed the said documents,
conformably to the rulings of this Court in Lim v.
Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v.
People,29before determining the presence or
absence of probable cause. She posits that the
respondent judge acted with grave abuse of
discretion amounting to excess or lack of jurisdiction
in denying her motion for a determination of
probable cause, and the alternative motion for a
dismissal of the case against her for lack of probable
cause.
The petitioner further asserts that the appellate
court erred in affirming the ruling of the respondent
judge that, by posting a personal bail bond for her
provisional liability and by filing several motions for
relief, she thereby voluntarily submitted herself to
the jurisdiction of the trial court and waived her
right to assail the infirmities that infected the trial
court’s issuance of the warrant for her arrest. She
avers that the appellate court’s reliance on the
ruling of this Court in Cojuangco, Jr. v.
Sandiganbayan30 is misplaced, and submits that the
appellate court should have applied Section 26, Rule
114 of the Revised Rules of Court retroactively, as it
rendered the ruling of this Court in the Cojuangco,
Jr. case obsolete.
The Office of the Solicitor General, on the other
hand, asserts that the respondent judge did not
commit any grave abuse of discretion when he
found probable cause against the petitioner
for estafa, and thereafter issued a warrant for her
arrest. It argues that the respondent judge
personally determined the existence of probable
cause independently of the certification of the
investigating prosecutor, and only after examining
the Information, the resolution of the investigating
prosecutor, as well as the affidavit-complaint of the
private complainant. It asserts that such documents
are sufficient on which to anchor a finding of
probable cause. It insists that the appellate court
correctly applied the ruling of this Court in
the Cojuangco, Jr. v. Court of Appeals case, and that
the respondent judge complied with both the
requirements of the constitution and those set forth
in the Rules of Court before issuing the said
warrant.31
We agree with the contention of the petitioner that
the appellate court erred in not applying Section 26,
Rule 114 of the Revised Rules on Criminal
Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal
arrest, lack of or irregular preliminary
investigation. – An application for or
admission to bail shall not bar the accused
from challenging the validity of his arrest or
the legality of the warrant issued therefor, or
from assailing the regularity or questioning
the absence of a preliminary investigation of
the charge against him, provided that he
raises them before entering his plea. The
court shall resolve the matter as early as
practicable but not later than the start of the
trial of the case.
It bears stressing that Section 26, Rule 114 of the
Revised Rules on Criminal Procedure is a new one,
intended to modify previous rulings of this Court
that an application for bail or the admission to bail
by the accused shall be considered as a waiver of his
right to assail the warrant issued for his arrest on the
legalities or irregularities thereon.32 The new rule
has reverted to the ruling of this Court in People v.
Red.33 The new rule is curative in nature because
precisely, it was designed to supply defects and curb
evils in procedural rules. Hence, the rules governing
curative statutes are applicable. Curative statutes
are by their essence retroactive in
34
application. Besides, procedural rules as a general
rule operate retroactively, even without express
provisions to that effect, to cases pending at the
time of their effectivity, in other words to actions
yet undetermined at the time of their
effectivity.35 Before the appellate court rendered its
decision on January 31, 2001, the Revised Rules on
Criminal Procedure was already in effect. It
behooved the appellate court to have applied the
same in resolving the petitioner’s petition for
certiorari and her motion for partial
reconsideration.
Moreover, considering the conduct of the petitioner
after posting her personal bail bond, it cannot be
argued that she waived her right to question the
finding of probable cause and to assail the warrant
of arrest issued against her by the respondent judge.
There must be clear and convincing proof that the
petitioner had an actual intention to relinquish her
right to question the existence of probable
cause.36 When the only proof of intention rests on
what a party does, his act should be so manifestly
consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the
particular right that no other explanation of his
conduct is possible.37 In this case, the records show
that a warrant was issued by the respondent judge
in Pasay City for the arrest of the petitioner, a
resident of Guiguinto, Bulacan. When the petitioner
learned of the issuance of the said warrant, she
posted a personal bail bond to avert her arrest and
secure her provisional liberty. Judge Demetrio B.
Macapagal of the RTC of Quezon City approved the
bond and issued an order recalling the warrant of
arrest against the petitioner. Thus, the posting of a
personal bail bond was a matter of imperative
necessity to avert her incarceration; it should not be
deemed as a waiver of her right to assail her arrest.
So this Court ruled in People v. Red:38
… The present defendants were arrested
towards the end of January, 1929, on the
Island and Province of Marinduque by order
of the judge of the Court of First Instance of
Lucena, Tayabas, at a time when there were
no court sessions being held in Marinduque.
In view of these circumstances and the
number of the accused, it may properly be
held that the furnishing of the bond was
prompted by the sheer necessity of not
remaining in detention, and in no way
implied their waiver of any right, such as the
summary examination of the case before
their detention. That they had no intention
of waiving this right is clear from their
motion of January 23, 1929, the same day on
which they furnished a bond, and the fact
that they renewed this petition on February
23, 1929, praying for the stay of their arrest
for lack of the summary examination; the
first motion being denied by the court on
January 24, 1929 (G.R. No. 33708, page 8),
and the second remaining undecided, but
with an order to have it presented in Boac,
Marinduque.
Therefore, the defendants herein cannot be
said to have waived the right granted to
them by section 13, General Order No. 58, as
amended by Act No. 3042.39
Moreover, the next day, or on June 16, 2000, the
petitioner, through counsel, received certified true
copies of the Information, the resolution of the
investigating prosecutor, the affidavit-complaint of
the private complainant, respondent Maruyama,
and a certification from the branch clerk of court
that only the Information, resolution and affidavit-
complaint formed part of the entire records of the
case. The next day, June 17, 2000, the petitioner,
through counsel, filed a verified motion for judicial
determination of probable cause and to defer the
proceedings and her arraignment. All the foregoing
are inconsistent with a waiver of her right to assail
the validity of her arrest and to question the
respondent judge’s determination of the existence
of probable cause for her arrest.
Neither can the petitioner’s filing of a motion for the
lifting of the hold departure order and for leave to
go to Japan be considered a waiver of her right to
assail the validity of the arrest warrant issued by the
respondent judge. It bears stressing that when the
petitioner filed the motion to lift the hold departure
order issued against her by the respondent judge,
her motion for a determination of probable cause
was still unresolved. She sought a lifting of the hold
departure order on July 14, 2000 and filed a motion
for leave to go to Japan, to give the respondent
judge an opportunity to reconsider the said order,
preparatory to assailing the same in the appellate
court in case her motion was denied.
The issue that now comes to fore is whether or not
the respondent judge committed a grave abuse of
his discretion amounting to excess or lack of
jurisdiction in issuing his August 25, 2000 Order. By
grave abuse of discretion is meant such patent and
gross abuse of discretion as to amount to an evasion
of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary
and despotic manner by reasons of passion or
personal hostility.40 Hence, when the court has
jurisdiction over the case, its questioned acts, even
if its findings are not correct, would at most
constitute errors of law and not abuse of discretion
correctible by the extraordinary remedy of
certiorari.41
We agree with the petitioner that before the RTC
judge issues a warrant of arrest under Section 6,
Rule 112 of the Rules of Court42 in relation to
Section 2, Article III of the 1987 Constitution, the
judge must make a personal determination of the
existence or non-existence of probable cause for the
arrest of the accused. The duty to make such
determination is personal and exclusive to the
issuing judge. He cannot abdicate his duty and rely
on the certification of the investigating prosecutor
that he had conducted a preliminary investigation in
accordance with law and the Rules of Court, as
amended, and found probable cause for the filing of
the Information.
Under Section 1, Rule 112 of the Rules on Criminal
Procedure, the investigating prosecutor, in
conducting a preliminary investigation of a case
cognizable by the RTC, is tasked to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent therein is probably
guilty thereof and should be held for trial. A
preliminary investigation is for the purpose of
securing the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the
trouble, expense and anxiety of a public trial.43
If the investigating prosecutor finds probable cause
for the filing of the Information against the
respondent, he executes a certification at the
bottom of the Information that from the evidence
presented, there is a reasonable ground to believe
that the offense charged has been committed and
that the accused is probably guilty thereof. Such
certification of the investigating prosecutor is, by
itself, ineffective. It is not binding on the trial court.
Nor may the RTC rely on the said certification as
basis for a finding of the existence of probable cause
for the arrest of the accused.44
In contrast, the task of the presiding judge when the
Information is filed with the court is first and
foremost to determine the existence or non-
existence of probable cause for the arrest of the
accused. Probable cause is meant such set of facts
and circumstances which would lead a reasonably
discreet and prudent man to believe that the
offense charged in the Information or any offense
included therein has been committed by the person
sought to be arrested.45 In determining probable
cause, the average man weighs facts and
circumstances without resorting to the calibrations
of the rules of evidence of which he has no technical
knowledge. He relies on common sense.46 A finding
of probable cause needs only to rest on evidence
showing that more likely than not a crime has been
committed and that it was committed by the
accused. Probable cause demands more than bare
suspicion, it requires less than evidence which
would justify conviction.47
The purpose of the mandate of the judge to first
determine probable cause for the arrest of the
accused is to insulate from the very start those
falsely charged of crimes from the tribulations,
expenses and anxiety of a public trial:
It must be stressed, however, that in these
exceptional cases, the Court took the
extraordinary step of annulling findings of
probable cause either to prevent the misuse
of the strong arm of the law or to protect the
orderly administration of justice. The
constitutional duty of this Court in criminal
litigations is not only to acquit the innocent
after trial but to insulate, from the start, the
innocent from unfounded charges. For the
Court is aware of the strains of a criminal
accusation and the stresses of litigation
which should not be suffered by the clearly
innocent. The filing of an unfounded criminal
information in court exposes the innocent to
severe distress especially when the crime is
not bailable. Even an acquittal of the
innocent will not fully bleach the dark and
deep stains left by a baseless accusation for
reputation once tarnished remains tarnished
for a long length of time. The expense to
establish innocence may also be prohibitive
and can be more punishing especially to the
poor and the powerless. Innocence ought to
be enough and the business of this Court is to
shield the innocent from senseless suits right
from the start.48
In determining the existence or non-existence of
probable cause for the arrest of the accused, the
RTC judge may rely on the findings and conclusions
in the resolution of the investigating prosecutor
finding probable cause for the filing of the
Information. After all, as the Court held in Webb v.
De Leon,49 the judge just personally reviews the
initial determination of the investigating prosecutor
finding a probable cause to see if it is supported by
substantial evidence.50 However, in determining the
existence or non-existence of probable cause for the
arrest of the accused, the judge should not
rely solely on the said report.51 The judge should
consider not only the report of the investigating
prosecutor but also the affidavit/affidavits and the
documentary evidence of the parties, the counter-
affidavit of the accused and his witnesses, as well as
the transcript of stenographic notes taken during
the preliminary investigation, if any, submitted to
the court by the investigating prosecutor upon the
filing of the Information.52 Indeed, in Ho v.
People,53 this Court held that:
Lastly, it is not required that the complete or
entire records of the case during the
preliminary investigation be submitted to
and examined by the judge. We do not
intend to unduly burden trial courts by
obliging them to examine the complete
records of every case all the time simply for
the purpose of ordering the arrest of an
accused. What is required, rather, is that the
judge must have sufficient supporting
documents (such as the complaint,
affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of
stenographic notes, if any) upon which to
make his independent judgment or, at the
very least, upon which to verify the findings
of the prosecutor as to the existence of
probable cause. The point is: he cannot rely
solely and entirely on the prosecutor’s
recommendation, as Respondent Court did
in this case. Although the prosecutor enjoys
the legal presumption of regularity in the
performance of his official duties and
functions, which in turn gives his report the
presumption of accuracy, the Constitution,
we repeat, commands the judge
to personally determine probable cause in
the issuance of warrants of arrest. This Court
has consistently held that a judge fails in his
bounden duty if he relies merely on the
certification or the report of the
investigating officer.54
The rulings of this Court are now embedded in
Section 8(a), Rule 112 of the Revised Rules on
Criminal Procedure which provides that an
Information or complaint filed in court shall be
supported by the affidavits and counter-affidavits of
the parties and their witnesses, together with the
other supporting evidence of the resolution:
SEC. 8. Records. – (a) Records supporting the
information or complaint. An information or
complaint filed in court shall be supported
by the affidavits and counter-affidavits of
the parties and their witnesses, together
with the other supporting evidence and the
resolution on the case.
If the judge is able to determine the existence or
non-existence of probable cause on the basis of the
records submitted by the investigating prosecutor,
there would no longer be a need to order the
elevation of the rest of the records of the case.
However, if the judge finds the records and/or
evidence submitted by the investigating prosecutor
to be insufficient, he may order the dismissal of the
case, or direct the investigating prosecutor either to
submit more evidence or to submit the entire
records of the preliminary investigation, to enable
him to discharge his duty.55 The judge may even call
the complainant and his witness to themselves
answer the court’s probing questions to determine
the existence of probable cause.56 The rulings of this
Court in Soliven v. Makasiar57 and Lim v. Felix58 are
now embodied in Section 6, Rule 112 of the Revised
Rules on Criminal Procedure, with
modifications, viz:
SEC. 6. When warrant of arrest may issue. –
(a) By the Regional Trial Court. – Within ten
(10) days from the filing of the complaint or
information, the judge shall personally
evaluate the resolution of the prosecutor
and its supporting evidence. He may
immediately dismiss the case if the evidence
on record clearly fails to establish probable
cause. If he finds probable cause, he shall
issue a warrant of arrest, or a commitment
order if the accused has already been
arrested pursuant to a warrant issued by the
judge who conducted the preliminary
investigation or when the complaint or
information was filed pursuant to section 7
of this Rule. In case of doubt on the existence
of probable cause, the judge may order the
prosecutor to present additional evidence
 within five (5) days from notice and the issue
must be resolved by the court within thirty
(30) days from the filing of the complaint of
information.
In this case, the investigating prosecutor submitted
to the respondent judge only his resolution after his
preliminary investigation of the case and the
affidavit-complaint of the private complainant, and
failed to include the affidavits of the witnesses of
the private complainant, and the latter’s reply
affidavit, the counter-affidavit of the petitioner, as
well as the evidence adduced by the private
complainant as required by case law, and now by
Section 8(a), Rule 112 of the Revised Rules on
Criminal Procedure. The aforecited affidavits, more
specifically the fax message of Lorna Tanghal and
the document signed by her covering the amount of
US$1,000, are of vital importance, as they would
enable the respondent judge to properly determine
the existence or non-existence of probable cause.
First. When respondent Maruyama handed the
money to the petitioner, she did not require the
latter to sign a document acknowledging receipt of
the amount. The petitioner avers that it is incredible
that Maruyama would entrust ₱3,993,500 in
Japanese Yen to her without even requiring her to
sign a receipt therefor, especially since respondent
Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a
witness of the respondent, is unreliable, because it
is based on information relayed to her by Lorna
Tanghal that she (Tanghal) saw the petitioner
carrying a Louis Vuitton bag while on board a
Mitsubishi L300 van with the petitioner. It appears
that Tanghal failed to submit any counter-affidavit
to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another
witness of the respondent, is also unreliable, as it
was based on information relayed to her by Thelma
Barbiran, who used to work for the petitioner as a
housemaid, that she (Barbiran) had in her
possession a fax message from Lorna Tanghal,
implicating the petitioner in the crime charged.
Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the
investigating prosecutor that the petitioner
received the fax message of Lorna Tanghal;
Fifth. The private complainant claims that the
petitioner tried to reimburse the ₱3,993,500 by
remitting US$1,000 to her. However, the latter
admitted in her affidavit-complaint that the
document evidencing the remittance was signed by
Lorna Tanghal, not by the petitioner. The petitioner
claimed that Lorna Tanghal had to remit US$1,000
to respondent Maruyama because the latter made
it appear to Tanghal that the police authorities were
about to arrest the petitioner, and Tanghal was
impelled to give the amount to respondent
Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged
that respondent Maruyama had no case against her
because the crime charged in the latter’s affidavit-
complaint was the same as that filed against her in
the Metropolitan Trial Court of Bulacan, which was
withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his
resolution that the private complainant established
the element of deceit. However, the crime charged
against the petitioner as alleged in the Information
is estafa with abuse of confidence.
In sum, then, we find and so declare that the
respondent judge committed a grave abuse of his
discretion amounting to excess or lack of jurisdiction
in finding probable cause for the petitioner’s arrest
in the absence of copies of the affidavits of the
witnesses of the private complainant and her reply
affidavit, the counter-affidavit of the petitioner, and
the evidence adduced during the preliminary
investigation before the investigating prosecutor.
In view of the foregoing disquisitions, there is no
more need to resolve the other issues raised by the
petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition
is GRANTED. The assailed decision of the Court of
Appeals is REVERSED and SET ASIDE. The assailed
Orders dated August 25 and 28, 2000 and the
Warrant of Arrest issued by the respondent judge in
Criminal Case No. 00-0749 are SET ASIDE. The 30 Supra.
records are REMANDED to the Regional Trial Court 31 Rollo, pp. 604-606.
of Pasay City, Branch 119. The respondent judge is 32 Herrera, Remedial Law, 2001 ed., Vol. IV, p. 438.

hereby DIRECTED to determine the existence or 33 55 Phil. 706 (1931).

non-existence of probable cause for the arrest of 34 Narzoles v. NLRC, 341 SCRA 533 (2000).

the petitioner based on the complete records, as 35 Zulueta v. Asia Brewery, Inc., 354 SCRA 100

required under Section 8(a), Rule 112 of the Revised (2001).

Rules on Criminal Procedure. 36 People v. Compacion, 361 SCRA 540 (2001).
37 Thomson v. Court of Appeals, 298 SCRA 280

SO ORDERED. (1998).
38 See note 37.

Puno*, Quisumbing**, Austria-Martinez, and Tinga, 39 Supra, p. 711.

JJ., concur. 40 Ala-Martin v. Judge Sultan, 366 SCRA 316 (2001).

41 Lalican v. Vergara, 276 SCRA 518 (1997).

* On official leave. 42 The assailed orders and warrant of arrest were

** Acting Chairman. issued before the Revised Rules on Criminal

1 Penned by Associate Justice Ramon A. Barcelona
Procedure took effect.
with Associate Justices Rodrigo V. Cosico and Alicia 43 People v. Poculan, 167 SCRA 176 (1988).

S. Santos concurring. 44 People v. Inting, 187 SCRA 788 (1990).

2 Annex "O," Rollo, pp. 119-133. 45 Webb v. De Leon, 247 SCRA 652 (1995).
3 Rollo, p. 136. 46 People v. Aruta, 288 SCRA 626 (1998).
4 Annex "P," Rollo, pp. 134-138. 47 Ibid.
5 Annex "Q," Id. at 139-140. 48 Dissenting opinion of Mr. Justice Reynato S. Puno
6 Id. at 138-139.
in Roberts, Jr. v. Court of Appeals, supra.
7 Id. at 139-140. 49 See note 37.
8 Id. at 139. 50 People v. Inting, supra.
9 Annex "S," Id. at 142. 51 Ho v. People, 280 SCRA 365 (1997).
10 Annex "T," Id. at 144. 52 Soliven v. Makasiar, supra.
11 194 SCRA 292 (1991). 53 See note 49.
12 254 SCRA 307 (1996). 54 Id. at 381-382.
13 Annex "V," Id. at 163-164. 55 See note 42.
14 142 SCRA 149 (1986). 56 Lim v. Felix, supra.
15 Rollo, p. 197. 57 See note 51.
16 Annex "CC," id. at 200. 58 See note 55.
17 Annex "BB," id. at 198-199.
18 Annex "DD," id. at 223-224.
19 Penned by Associate Justice Ramon A. Barcelona

with Associate Justices Rodrigo V. Cosico and Alicia

S. Santos concurring.
20 300 SCRA 367 (1998).
21 Rollo, p. 85.
22 Id. at 86.
23 Supra.
24 Rollo, pp. 70-71.
25 Id. at 43-44.
26 Id. at 565-566.
27 Supra.
28 Supra.
29 Supra.
 G.R. No. L-2508 October 27, 1950
THE PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. MAMERTO ABNER ET.
AL., Defendants. ROBERTO SOLER and DOMINGO
ABELLA, bondsmen-appellants.
DECISION
PARAS, J.:
In a complaint signed by Lt. Fernando G. Regino, P.
A., with the heading "In the Justice of the Peace
Court of Tinambac, Camarines Sur," Mamerto Abner
was charged, with others, with robbery in band with
rape committed in the municipality of Tinambac,
Province of Camarines Sur. Upon motion of the
assistant provincial fiscal of September 6, 1946,
alleging that the justice of the peace of Tinambac
was absent and the municipal mayor refused to
receive the complaint, the Court of First Instance of
Camarines Sur directed the Justice of the Peace of
Naga, the capital, to conduct the necessary
preliminary investigation. Mamerto Abner was
thereafter admitted to bail and the herein
appellants, Roberto Soler and Domingo Abella,
executed the necessary bail bond for P15,000 dated
October 4, 1946, and approved by the Justice of the
Peace of Naga on the same date.
Notwithstanding notice, the accused Abner and his
bondsmen failed to appear at the preliminary
investigation set for March 26, 1947. On April 2,
1947, Abner, through counsel, filed a petition
waiving the right to a preliminary investigation. By
order of April 5, 1947, the Justice of the Peace of
Naga forwarded the case in respect to Abner to the
Court of First Instance of Camarines Sur. On May 8,
1947, the provincial fiscal filed the corresponding
information in the Court of First Instance of
Camarines Sur. The trial originally set for November
25, 1947, was postponed to January 16, 1948, but
upon motion of appellants, the trial was set for
March 2, 1948.
On February 28, 1948, the appellants filed a motion
for another extension of thirty days within which to
produce the body of Abner, which was granted, and
the trial was again postponed to March 29, 1948. On
this date, Abner and the appellants failed to appear.
The provincial fiscal accordingly filed a petition for
the confiscation of the bail bond executed by the
herein appellants, and the same was granted by the
Court of First Instance of Camarines Sur in its order
of March 31, 1948. From this order the bondsmen
have appealed.
Appellants contend that the court of first instance
did not acquire jurisdiction, because no complaint
was filed in the Justice of the Peace Court of
Tinambac, and reliance is placed on the allegation of
the fiscal, in his motion of September 6, 1946, that
the complaint signed by Lieutenant Regino was not
so filed in view of the absence of the justice of the
peace and the refusal of the municipal mayor of
Tinambac to receive said complaint. It appears,
however, that the bond executed by the appellants
on October 4, 1946, contained the following recital:
"A complaint having been filed on September 17,
1946 in the Justice of the Peace Court of Tinambac,
Camarines Sur . . . ."
This admission, which is subsequent to the motion
of the fiscal of September 6, 1946, is inconsistent
with appellants’ contention. Moreover, the
proceedings had before the Justice of the Peace of
Naga and the Court of First Instance of Camarines
Sur, in relation to the measures taken by the
appellants prior to the confiscation of their bond,
carry the implication that the complaint was duly
filed. The presumption that official duty was
performed has not been destroyed. Although the
justice of the peace has jurisdiction to conduct
preliminary investigations only of offenses
committed within his municipality, the justice of the
peace of the provincial capital, when, as in the case
at bar, directed by the court of first instance, may
conduct such preliminary investigation of any
offense committed anywhere within his province.
(Sec. 2, Rule 108, Rules of Court.)
It appears that the bond in question was not signed
by the accused Abner as principal; and it is
contended by the appellants that it is accordingly
void. Section 1, Rule 110, of the Rules of Court,
provides that "bail is the security required and given
for the release of a person who is in the custody of
the law, that he will appear before any court in
which his appearance may be required as stipulated
in the bail bond or recognizance." Under this, there
are two methods of taking bail: (1) by bail bond and
(2) by recognizance. A bail bond is an obligation
given by the accused with one or more sureties, with
the condition to be void upon the performance by
the accused of such acts as he may legally be
required to perform. A recognizance is an obligation
of record, entered into before some court or
magistrate duly authorized to take it, with the
condition to do some particular act, the most usual
condition in criminal cases being the appearance of
the accused for trial. (Moran, Comments on the
Rules of Court, 2d ed., Vol. II, page 592.)
In U. S. v. Sunico Et. Al., 48 Phil., 826, 834, this court,
citing Lamphire v. State, 73 N. H., 462; 62 Atl., 786;
6 Am. & Eng. Ann. Cas., 615, defined a recognizance
as "a contract between the sureties and the State
for the production of the principal at the required
time." The bail bond executed by the appellants,
though so denominated, is essentially a
recognizance, an "obligation" contracted with the
State by the appellants, not requiring as an
indispensable condition for its validity, the signature
of the accused. In addition, under the circumstances
of this case, the appellants were estopped from
assailing the effectiveness of their bail contract. If,
as contended by appellants, it would be difficult,
without the accused Abner having signed as
principal, for them to obtain indemnity from or to
have power and control over him, they are solely to
blame. Neither is there merit in the argument that
the obligation of appellants under the bond is
merely to pay P15,000 in case the accused should
fail to pay that amount, because the latter, who has
not signed it, is of course not bound thereby.
Appellants allege that the Government had
launched a campaign for the capture of Abner, dead
or alive, as a result of which he is forced to remain
in hiding. Thus the appellants are allegedly unable
to produce him in court, due to an act of the
Government. In the order of the trial court denying
appellants’ motion for reconsideration, however, it
is recited that "if the government launched the
campaign against Abner and his followers in
Tinambac and Partido during the months of July up
to December, 1947, it was because Mamerto Abner
and his gang have turned out brigands who
threatened to disturb the peace and tranquility of
the people in that part of the Province of Camarines
Sur." Hence the alleged search for Abner was
motivated by his own voluntary act and cannot,
therefore, be invoked by appellants. (U. S. v. Sunico,
supra.)
The appealed order is affirmed with costs against
the appellants. So ordered.
Moran, C.J., Pablo, Bengzon, Tuason, Montemayor
and Reyes, JJ., concur.
Separate Opinions
FERIA, J., concurring: I concur in the decision with
the following modification in connection with the
necessity of defendant’s signature in his bail bond.
A bail bond in criminal cases is an obligation
subscribed, not by the accused, but by two or more
sureties for the release of the defendant who is in
the custody of the law, conditioned upon that the
latter will appear before any court in which his
appearance may be required. It is not different from
recognizance, and for that reason Rule 110 of the
Rules of Court uses the word bail bond and
recognizance interchangeably. That the law does
not require that the bail be subscribed or signed by
the accused is shown by the provisions of section 9
which require that, "in case there are only two
sureties, each must be worth the amount specified
in the undertaking over and above all just debts
etc." ; by section 15 which provides that, when the
appearance of the defendant is required by the
court, his sureties, and not the accused, shall be
notified to produce him or a given date in
compliance with their obligation stipulated in the
bail bond.
And if the defendant fails to appear as required, the
bond is declared forfeited and the bondsmen are
given thirty days within which to produce the
accused, and to show cause why a judgment shall
not be rendered against them for the amount of
their bond; and "failing in these two requisites, a
judgment shall be rendered against the bondsmen"
(not against the accused); by section 17 which
provides that, "for the purpose of surrendering the
defendant, the bailors may arrest him, or on a
written authority endorsed on a certified copy of the
undertaking may cause him to be arrested" ; and
specially by the form or bail bond found in General
Order No. 58, which has not been modified or
repealed by the Rules of Court. (Bandoy v. Judge of
First Instance of Laguna, 14 Phil., 620, 625.)
 G.R. No. 129670 February 1, 2000
MANOLET O. LAVIDES, petitioner,
vs.
HONORABLE COURT OF APPEALS; HON. ROSALINA
L. LUNA PISON, Judge Presiding over Branch 107,
RTC, Quezon City; and PEOPLE OF THE
PHILIPPINES, respondents.
MENDOZA, J.:
Petitioner Manolet Lavides was arrested on April 3,
1997 for child abuse under R.A. No. 7610 (AN ACT
PROVIDING FOR STRONGER DETERRENCE AND
SPECIAL PROTECTION AGAINST CHILD ABUSE,
EXPLOITATION AND DISCRIMINATION, PROVIDING
PENALTIES FOR ITS VIOLATION, AND OTHER
PURPOSES). His arrest was made without a warrant
as a result of an entrapment conducted by the
police. It appears that on April 3, 1997, the parents
of complainant Lorelie San Miguel reported to the
police that their daughter, then 16 years old, had
been contacted by petitioner for an assignation that
night at petitioner's room at the Metropolitan Hotel
in Diliman, Quezon City. Apparently, this was not the
first time the police received reports of petitioner's
activities. An entrapment operation was therefore
set in motion.
At around 8:20 in the evening of April 3, 1997, the
police knocked at the door of Room 308 of the
Metropolitan Hotel where petitioner was staying.
When petitioner opened the door, the police saw
him with Lorelie, who was wearing only a t-shirt and
an underwear, whereupon they arrested him. Based
on the sworn statement of complainant and the
affidavits of the arresting officers, which were
submitted at the inquest, an information for
violation of Art. III, §5(b) of R.A. No. 7610 was filed
on April 7, 1997 against petitioner in the Regional
Trial Court, Quezon City, where it was docketed as
Criminal Case No. Q-97-70550.
On April 10, 1997, petitioner filed an "Omnibus
Motion (1) For Judicial Determination of Probable
Cause; (2) For the Immediate Release of the Accused
Unlawfully Detained on an Unlawful Warrantless
Arrest; and (3) In the Event of Adverse Resolution of
the Above Incident, Herein Accused be Allowed to
Bail as a Matter of Right under the Law on Which He
is Charged.1
On April 29, 1997, nine more informations for child
abuse were filed against petitioner by the same
complainant, Lorelie San Miguel, and by three other
minor children, Mary Ann Tardesilla, Jennifer
Catarman, and Annalyn Talingting. The cases were
docketed as Criminal Case Nos. Q-97-70866 to Q-97-
70874. In all the cases, it was alleged that, on various
dates mentioned in the informations, petitioner had
sexual intercourse with complainants who had been
"exploited in prostitution and . . . given money [by
petitioner] as payment for the said [acts of] sexual
intercourse."
No bail was recommended. Nonetheless, petitioner
filed separate applications for bail in the nine cases.
On May 16, 1997, the trial court issued an order
resolving petitioner's Omnibus Motion, as follows:
WHEREFORE, IN VIEW OF THE FOREGOING,
this Court finds that:
1. In Crim. Case No. Q-97-70550, there is
probable cause to hold the accused under
detention, his arrest having been made in
accordance with the Rules. He must
therefore remain under detention until
further order of this Court;
2. The accused is entitled to bail in all the
above-entitled case. He is hereby granted
the right to post bail in the amount of
P80,000.00 for each case or a total of
P800,000.00 for all the cases under the
following conditions:
a) The accused shall not be entitled
to a waiver of appearance during the
trial of these cases. He shall and must
always be present at the hearings of
these cases;
b) In the event that he shall not be
able to do so, his bail bonds shall be
automatically cancelled and
forfeited, warrants for his arrest shall
 be immediately issued and the cases
shall proceed to trial in absentia;
c) The hold-departure Order of this
Court dated April 10, 1997 stands;
and
d) Approval of the bail bonds shall be
made only after the arraignment to
enable this Court to immediately
acquire jurisdiction over the accused;
3. Let these cases be set for arraignment on
May 23, 1997 at 8:30 o'clock in the morning.2
On May 20, 1997, petitioner filed a motion to quash
the informations against him, except those filed in
Criminal Case No. Q-97-70550 or Q-97-70866.
Pending resolution of his motion, he asked the trial
court to suspend the arraignment scheduled on May
23, 1997.3 Then on May 22, 1997, he filed a motion
in which he prayed that the amounts of bail bonds
be reduced to P40,000.00 for each case and that the
same be done prior to his arraignment.4
On May 23, 1997, the trial court, in separate orders,
denied petitioner's motions to reduce bail bonds, to
quash the informations, and to suspend
arraignment. Accordingly, petitioner was arraigned
during which he pleaded not guilty to the charges
against him and then ordered him released upon
posting bail bonds in the total amount of
P800,000.00, subject to the conditions in the May
16, 1997 order and the "hold-departure" order of
April 10, 1997. The pre-trial conference was set on
June 7, 1997.
On June 2, 1997, petitioner filed a petition
for certiorari (CA-G.R. SP No. 44316) in the Court of
Appeals, assailing the trial court's order, dated May
16, 1997, and its two orders, dated May 23, 1997,
denying his motion to quash and maintaining the
conditions set forth in its order of May 16, 1997,
respectively.
While the case was pending in the Court of Appeals,
two more informations were filed against
petitioner, bringing the total number of cases
against him to 12, which were all consolidated.
On June 30, 1997, the Court of Appeals rendered its
decision, the dispositive portion of which reads:
WHEREFORE, considering that the
conditions imposed under Nos. 2-a) and 2-
b),5 of the May 23 [should be May 16], 1997
Order, are separable, and would not affect
the cash bond which petitioner posted for
his provisional liberty, with the sole
modification that those aforesaid conditions
are hereby ANNULLED and SET ASIDE, the
May 16, May 23 and May 23, 1997 Orders
are MAINTAINED in all other respects.6
The appellate court invalidated the first two
conditions imposed in the May 16, 1997 order for
the grant of bail to petitioner but ruled that the
issue concerning the validity of the condition
making arraignment a prerequisite for the approval
of petitioner's bail bonds to be moot and academic.
It noted "that petitioner has posted the cash bonds;
that when arraigned, represented by lawyers, he
pleaded not guilty to each offense; and that he has
already been released from detention." The Court of
Appeals thought that the aforesaid conditions in the
May 16, 1997 order were contrary to Art. III, §14(2)
of the Constitution which provides that "[a]fter
arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been
duly notified and his failure to appear is
unjustifiable."
With respect to the denial of petitioner's motion to
quash the informations against him, the appellate
court held that petitioner could not question the
same in a petition for certiorari before it, but what
he must do was to go to trial and to reiterate the
grounds of his motion to quash on appeal should the
decision be adverse to him.
Hence this petition. Petitioner contends that the
Court of Appeals erred7 —
1. In ruling that the condition imposed by
respondent Judge that the approval of
petitioner's bail bonds "shall be made only
after his arraignment" is of no moment and
has been rendered moot and academic by
the fact that he had already posted the bail
 bonds and had pleaded not guilty to all the
offenses;
2. In not resolving the submission that the
arraignment was void not only because it
was made under compelling circumstance
which left petitioner no option to question
the respondent Judge's arbitrary action but
also because it emanated from a void Order;
3. In ruling that the denial of petitioner's
motion to quash may not be impugned in a
petition for certiorari; and
4. In not resolving the legal issue of whether
or not petitioner may be validly charged for
violation of Section 5(b) of RA No. 7610
under several informations corresponding to
the number of alleged acts of child abuse
allegedly committed against each private
complainant by the petitioner.
We will deal with each of these contentions
although not in the order in which they are stated
by petitioner.
First. As already stated, the trial court's order, dated
May 16, 1997, imposed four conditions for the grant
of bail to petitioner:
a) The accused shall not be entitled to a
waiver of appearance during the trial of
these cases. He shall and must always be
present at the hearings of these cases;
b) In the event that he shall not be able to do
so, his bail bonds shall be automatically
cancelled and forfeited, warrants for his
arrest shall be immediately issued and the
cases shall proceed to trial in absentia;
c) The hold-departure Order of this Court
dated April 10, 1997 stands; and
d) Approval of the bail bonds shall be made
only after the arraignment to enable this
Court to immediately acquire jurisdiction
over the accused;
The Court of Appeals declared conditions (a) and (b)
invalid but declined to pass upon the validity of
condition (d) on the ground that the issue had
become moot and academic. Petitioner takes issue
with the Court of Appeals with respect to its
treatment of condition (d) of the May 16, 1997
order of the trial court which makes petitioner's
arraignment a prerequisite to the approval of his
bail bonds. His contention is that this condition is
void and that his arraignment was also invalid
because it was held pursuant to such invalid
condition.
We agree with petitioner that the appellate court
should have determined the validity of the
conditions imposed in the trial court's order of May
16, 1997 for the grant of bail because petitioner's
contention is that his arraignment was held in
pursuance of these conditions for bail.
In requiring that petitioner be first arraigned before
he could be granted bail, the trial court
apprehended that if petitioner were released on bail
he could, by being absent, prevent his early
arraignment and thereby delay his trial until the
complainants got tired and lost interest in their
cases. Hence, to ensure his presence at the
arraignment, approval of petitioner's bail bonds
should be deferred until he could be arraigned. After
that, even if petitioner does not appear, trial can
proceed as long as he is notified of the date of
hearing and his failure to appear is unjustified, since
under Art. III, §14(2) of the Constitution, trial in
absentia is authorized. This seems to be the theory
of the trial court in its May 16, 1997 order
conditioning the grant of bail to petitioner on his
arraignment.
This theory is mistaken. In the first place, as the trial
court itself acknowledged, in cases where it is
authorized, bail should be granted before
arraignment, otherwise the accused may be
precluded from filing a motion to quash. For if the
information is quashed and the case is dismissed,
there would then be no need for the arraignment of
the accused. In the second place, the trial court
could ensure the presence of petitioner at the
arraignment precisely by granting bail and ordering
his presence at any stage of the proceedings, such
as arraignment. Under Rule 114, §2(b) of the Rules
on Criminal Procedure, one of the conditions of bail
is that "the accused shall appear before the proper
court whenever so required by the court or these
Rules," while under Rule 116, §1(b) the presence of
the accused at the arraignment is required.
On the other hand, to condition the grant of bail to
an accused on his arraignment would be to place
him in a position where he has to choose between
(1) filing a motion to quash and thus delay his
release on bail because until his motion to quash can
be resolved, his arraignment cannot be held, and (2)
foregoing the filing of a motion to quash so that he
can be arraigned at once and thereafter be released
on bail. These scenarios certainly undermine the
accused's constitutional right not to be put on trial
except upon valid complaint or information
sufficient to charge him with a crime and his right to
bail.8
It is the condition in the May 16, 1997 order of the
trial court that "approval of the bail bonds shall be
made only after arraignment," which the Court of
Appeals should instead have declared void. The
condition imposed in the trial court's order of May
16, 1997 that the accused cannot waive his
appearance at the trial but that he must be present
at the hearings of the case is valid and is in
accordance with Rule 114. For another condition of
bail under Rule 114, §2(c) is that "The failure of the
accused to appear at the trial without justification
despite due notice to him or his bondsman shall be
deemed an express waiver of his right to be present
on the date specified in the notice. In such case, trial
shall proceed in absentia."
Art. III, §14(2) of the Constitution authorizing
trials in absentia allows the accused to be absent at
the trial but not at certain stages of the proceedings,
to wit: (a) at arraignment and plea, whether of
innocence or of guilt,9 (b) during trial whenever
necessary for identification purposes,10 and (c) at
the promulgation of sentence, unless it is for a light
offense, in which case the accused may appear by
counsel or representative.11 At such stages of the
proceedings, his presence is required and cannot be
waived. As pointed out in Borja v. Mendoza,12 in an
opinion by Justice, later Chief Justice, Enrique
Fernando, there can be no trial in absentia unless
the accused has been arraigned.
Undoubtedly, the trial court knew this. Petitioner
could delay the proceedings by absenting himself
from the arraignment. But once he is arraigned, trial
could proceed even in his absence. So it thought
that to ensure petitioner's presence at the
arraignment, petitioner should be denied bail in the
meantime. The fly in the ointment, however, is that
such court strategy violates petitioner's
constitutional rights.
Second. Although this condition is invalid, it does not
follow that the arraignment of petitioner on May 23,
1997 was also invalid. Contrary to petitioner's
contention, the arraignment did not emanate from
the invalid condition that "approval of the bail
bonds shall be made only after the arraignment."
Even without such a condition, the arraignment of
petitioner could not be omitted. In sum, although
the condition for the grant of bail to petitioner is
invalid, his arraignment and the subsequent
proceedings against him are valid.
Third. Petitioner concedes that the rule is that the
remedy of an accused whose motion to quash is
denied is not to file a petition for certiorari but to
proceed to trial without prejudice to his right to
reiterate the grounds invoked in his motion to quash
during trial on the merits or on appeal if an adverse
judgment is rendered against him. However, he
argues that this case should be treated as an
exception. He contends that the Court of Appeals
should not have evaded the issue of whether he
should be charged under several informations
corresponding to the number of acts of child abuse
allegedly committed by him against each of the
complainants.
In Tano v. Salvador,13 the Court, while holding
that certiorari will not lie from a denial of a motion
to quash, nevertheless recognized that there may
be cases where there are special circumstances
clearly demonstrating the inadequacy of an appeal.
In such cases, the accused may resort to the
appellate court to raise the issue decided against
him. This is such a case. Whether petitioner is liable
for just one crime regardless of the number of
sexual acts allegedly committed by him and the
number of children with whom he had sexual
intercourse, or whether each act of intercourse
constitutes one crime is a question that bears on the
presentation of evidence by either party. It is
important to petitioner as well as to the prosecution
how many crimes there are. For instance, if there is
only one offense of sexual abuse regardless of the
number of children involved, it will not matter much
to the prosecution whether it is able to present only
one of the complainants. On the other hand, if each
act of sexual intercourse with a child constitutes a
separate offense, it will matter whether the other
children are presented during the trial.
The issue then should have been decided by the
Court of Appeals. However, instead of remanding
this case to the appellate court for a determination
of this issue, we will decide the issue now so that the
trial in the court below can proceed without further
delay.
Petitioner's contention is that the 12 informations
filed against him allege only one offense of child
abuse, regardless of the number of alleged victims
(four) and the number of acts of sexual intercourse
committed with them (twelve). He argues that the
act of sexual intercourse is only a means of
committing the offense so that the acts of sexual
intercourse/lasciviousness with minors attributed
to him should not be subject of separate
informations. He cites the affidavits of the alleged
victims which show that their involvement with him
constitutes an "unbroken chain of events," i.e., the
first victim was the one who introduced the second
to petitioner and so on. Petitioner says that child
abuse is similar to the crime of large-scale illegal
recruitment where there is only a single offense
regardless of the number of workers illegally
recruited on different occasions. In the alternative,
he contends that, at the most, only four
informations, corresponding to the number of
alleged child victims, can be filed against him.
Art. III, §5 of R.A. No. 7160 under which petitioner is
being prosecuted, 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:
xxx xxx xxx
(b) Those who commit the act of sexual
intercourse or lascivious conduct with a child
exploited in prostitution or subjected to
other sexual abuse.
The elements of the offense are as follows: (1) the
accused commits the act of sexual intercourse or
lascivious conduct; (2) that said act is performed
with a child exploited in prostitution or subjected to
other sexual abuse; and (3) the child,14 whether
male or female, is or is deemed under 18 years of
age. Exploitation in prostitution or other sexual
abuse occurs when the child indulges in sexual
intercourse or lascivious conduct (a) for money,
profit, or any other consideration; or (b) under the
coercion or influence of any adult, syndicate, or
group.
Each incident of sexual intercourse and lascivious
act with a child under the circumstances mentioned
in Air. III, §5 of R.A. No. 7160 is thus a separate and
distinct offense. The offense is similar to rape or act
of lasciviousness under the Revised Penal Code in
which each act of rape or lascivious conduct should
be the subject of a separate information. This
conclusion is confirmed by Art. III, §5(b) of R.A. No.
7160, which provides:
[t]hat 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 Act No. 3815, as
amended, the Revised Penal Code, for rape
or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious
 conduct when the victim is under twelve (12) to fully take care of themselves or protect
years of age shall be reclusion temporal in its themselves from abuse, neglect, cruelty,
medium period; exploitation or discrimination because of a
physical or mental disability or condition;. . .
WHEREFORE, the decision of the Court of Appeals is .
SET ASIDE and another one is RENDERED declaring
the orders dated May 16, 1997 and May 23, 1997 of
the Regional Trial Court, Branch 107, Quezon City to
be valid, with the exception of condition (d) in the
second paragraph of the order of May 16, 1997
(making arraignment a prerequisite to the grant of
bail to petitioner), which is hereby declared
void.1âwphi1.nêt

SO ORDERED.

Bellosillo, Quisumbing, Buena and De Leon, Jr.,

JJ., concur.
1 Petition, Appendix F; Rollo, pp. 78-85.
2 Id., Appendix B, pp. 18-19; id., pp. 65-66.
3 Id., Appendix J; id., pp. 115-122.
4 Id., Appendix I; id., pp. 111-114.
5 The conditions declared void were the following:

a) The accused shall not be entitled to a

waiver of appearance during the trial of
these cases. He shall and must always be
present at the hearings of these cases;
b) In the event that he shall not be able to do
so, his bail bonds shall be automatically
cancelled and forfeited, warrants for his
arrest shall be immediately issued and the
cases shall proceed to trial in absentia;
6 Petition, Appendix A, p. 8; Rollo, p. 47.
7 Id., p. 14; id., p. 16.
8 Under Art. III, §5 of R.A. No. 7610, the offenses

with which petitioner is charged are punishable

by reclusion temporal in its medium period
to reclusion perpetua.
9 Rule 116, §1(b).
10 People v. Avanceña, G.R. No. 37005, Oct. 13,

1933, 32 O.G. 713 (1934); Aquino v. Military

Commission No. 2, 63 SCRA 546 (1975); People v.
Salas, 143 SCRA 163 (1986).
11 Rule 120, §6.
12 77 SCRA 422 (1977).
13 278 SCRA 154 (1997).
14 Under R.A. No. 7160, Art. I, §3(a):

"Children" refers to persons below eighteen

(18) years of age or those but [sic] are unable
 G.R. No. 148468 January 28, 2003
ATTY. EDWARD SERAPIO, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF
THE PHILIPPINES, and PHILIPPINE NATIONAL
POLICE DIRECTOR-GENERAL LEANDRO
MENDOZA, respondents.
x---------------------------------------------------------x
G.R. No. 148769 January 28, 2003
EDWARD SERAPIO, petitioner,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
x---------------------------------------------------------x
G.R. No. 149116 January 28, 2003
EDWARD SERAPIO, petitioner,
vs.
HONORABLE SANDIGANBAYAN (THIRD DIVISION)
and PEOPLE OF THE PHILIPPINES, respondents.
CALLEJO, SR., J.:
Before the Court are two petitions for certiorari filed
by petitioner Edward Serapio, assailing the
resolutions of the Third Division of the
Sandiganbayan denying his petition for bail, motion
for a reinvestigation and motion to quash, and a
petition for habeas corpus, all in relation to Criminal
Case No. 26558 for plunder wherein petitioner is
one of the accused together with former President
Joseph E. Estrada, Jose "Jinggoy" P. Estrada and
several others.
The records show that petitioner was a member of
the Board of Trustees and the Legal Counsel of the
Erap Muslim Youth Foundation, a non-stock, non-
profit foundation established in February 2000
ostensibly for the purpose of providing educational
opportunities for the poor and underprivileged but
deserving Muslim youth and students, and support
to research and advance studies of young Muslim
educators and scientists.
Sometime in April 2000, petitioner, as trustee of the
Foundation, received on its behalf a donation in the
amount of Two Hundred Million Pesos (P200
Million) from Ilocos Sur Governor Luis "Chavit"
Singson through the latter's assistant Mrs. Yolanda
Ricaforte. Petitioner received the donation and
turned over the said amount to the Foundation's
treasurer who later deposited it in the Foundation's
account with the Equitable PCI Bank.
In the latter part of the year 2000, Gov. Singson
publicly accused then President Joseph E. Estrada
and his cohorts of engaging in several illegal
activities, including its operation on the illegal
numbers game known as jueteng. This triggered the
filing with the Office of the Ombudsman of several
criminal complaints against Joseph Estrada, Jinggoy
Estrada and petitioner, together with other persons.
Among such complaints were: Volunteers Against
Crime and Corruption, versus Joseph Ejercito
Estrada, Edward Serapio, et al., docketed as OMB
Crim. Case No. 0-00-1754; Graft Free Philippines
Foundation, Inc., versus Joseph Ejercito Estrada,
Edward Serapio, et al., docketed as OMB Crim. Case
No. 0-00-1755; and Leonardo De Vera, Romeo T.
Capulong and Dennis B. Funa, versus Joseph Estrada,
Yolanda Ricaforte, Edward Serapio, Raul De
Guzman, Danilo Reyes and Mila Reforma, docketed
as OMB Crim. Case No. 0-00-1757.
Subsequently, petitioner filed his Counter-Affidavit
dated February 21, 2001. The other respondents
likewise filed their respective counter-affidavits. The
Office of the Ombudsman conducted a preliminary
investigation of the complaints and on April 4, 2001,
issued a joint resolution recommending, inter alia,
that Joseph Estrada, petitioner and several others
be charged with the criminal offense of plunder.
On April 4, 2001, the Ombudsman filed with the
Sandiganbayan several Informations against former
President Estrada, who earlier had resigned from his
post as President of the Republic of the Philippines.
One of these Informations, docketed as Criminal
Case No. 26558, charged Joseph Estrada with
plunder. On April 18, 2001, the Ombudsman filed an
amended Information in said case charging Estrada
and several co-accused, including petitioner, with
said crime. No bail was recommended for the
provisional release of all the accused, including
petitioner. The case was raffled to a special division
which was subsequently created by the Supreme
Court. The amended Information reads:
"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
PUBLIC OFFICER BEING THEN THE
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 wilfully,
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 connivance 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 fund 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 Tan OR Eleuterio Ramos
Tan or Mr. Uy, and Jane Doe a.k.a.
Delia Rajas, AND OTHER JOHN DOES
AND JANE DOES;
(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 OR 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 OF
SHARES OF STOCK IN THE AMOUNT
OF ONE HUNDRED EIGHTY NINE
MILLION SEVEN HUNDRED
THOUSAND PESOS [189,700,000.00]
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, 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.
CONTRARY TO LAW."1
On April 5, 2001, petitioner obtained a copy of the
Ombudsman's Joint Resolution finding probable
cause against him for plunder. The next day, April 6,
2001, he filed with the Office of the Ombudsman a
Motion for Reconsideration and/or
Reinvestigation.2 Petitioner likewise filed on said
date, this time with the Sandiganbayan, an Urgent
Omnibus Motion: (a) To Hold in Abeyance the
Issuance of Warrant of Arrest and Further
Proceedings; (b) To Conduct a Determination of
Probable Cause; (c) For Leave to File Accused's
Motion for Reconsideration and/or Reinvestigation;
and (d) To Direct the Ombudsman to Conduct a
Reinvestigation of the Charges against accused
Edward Serapio.3
On April 10, 2001, the Ombudsman issued an order
denying petitioner's motion for reconsideration
and/or reinvestigation on the ground of lack of
jurisdiction since the amended Information charging
petitioner with plunder had already been filed with
the Sandiganbayan.4
In a parallel development, the Sandiganbayan
issued a Resolution on April 25, 2001 in Criminal
Case No. 26558 finding probable cause to justify the
issuance of warrants of arrest for the accused,
including petitioner. Accordingly, the
Sandiganbayan issued an Order on the same date
for the arrest of petitioner.5 When apprised of said
order, petitioner voluntarily surrendered at 9:45
p.m. on the same day to Philippine National Police
Chief Gen. Leandro Mendoza. Petitioner has since
been detained at Camp Crame for said charge.
The Sandiganbayan set the arraignment of the
accused, including petitioner, in Criminal Case No.
26558 on June 27, 2001. In the meantime, on April
27, 2001, petitioner filed with the Sandiganbayan an
Urgent Petition for Bail which was set for hearing on
May 4, 2001.6 For his part, petitioner's co-accused
Jose "Jinggoy" Estrada filed on April 20, 2001 a Very
Urgent Omnibus Motion alleging that he was
entitled to bail as a matter of right.
During the hearing on May 4, 2001 on petitioner's
Urgent Petition for Bail, the prosecution moved for
the resetting of the arraignment of the accused
earlier than the June 27, 2001 schedule. However,
the Sandiganbayan denied the motion of the
prosecution and issued an order declaring that the
petition for bail can and should be
heard beforepetitioner's arraignment on June 27,
2001 and even before the other accused in Criminal
Case No. 26558 filed their respective petitions for
bail. Accordingly, the Sandiganbayan set the hearing
for the reception of evidence on petitioner's
petition for bail on May 21 to 25, 2001.
On May 17, 2001, four days before the hearing on
petitioner's petition for bail, the Ombudsman filed
an urgent motion for early arraignment of Joseph
Estrada, Jinggoy Estrada and petitioner and a
motion for joint bail hearings of Joseph Estrada,
Jinggoy Estrada and petitioner. The following day,
petitioner filed a manifestation questioning the
propriety of including Joseph Estrada and Jinggoy
Estrada in the hearing on his (petitioner's) petition
for bail.
The Sandiganbayan issued a Resolution on May 18,
2001 resetting the hearings on petitioner's petition
for bail to June 18 to 28, 2001 to enable the court to
resolve the prosecution's pending motions as well
as petitioner's motion that his petition for bail be
heard as early as possible, which motion the
prosecution opposed.
On May 31, 2001, the Sandiganbayan issued a
Resolution denying petitioner's April 6, 2001 Urgent
Omnibus Motion. The court ruled that the issues
posed by petitioner had already been resolved in its
April 25, 2001 Resolution finding probable cause to
hold petitioner and his co-accused for
trial.7 Petitioner filed a motion for reconsideration
of the said May 31, 2001 Resolution.
On June 1, 2001, the Sandiganbayan issued a
resolution requiring the attendance of petitioner as
well as all the other accused in Criminal Case No.
26558 during the hearings on the petitions for bail
under pain of waiver of cross-examination. The
Sandiganbayan, citing its inherent powers to
proceed with the trial of the case in the manner it
determines best conducive to orderly proceedings
and speedy termination of the case, directed the
other accused to participate in the said bail hearing
considering that under Section 8, Rule 114 of the
Revised Rules of Court, whatever evidence is
adduced during the bail hearing shall be considered
automatically reproduced at the trial.8
However, instead of proceeding with the bail
hearing set by it on June 18, 2001, the
Sandiganbayan issued an Order on June 15, 2001
canceling the said bail hearing due to pending
incidents yet to be resolved and reset anew the
hearing to June 26, 2001.9
On the eve of said hearing, the Sandiganbayan
issued a resolution denying petitioner's motion for
reconsideration of its May 31, 2001 Resolution. The
bail hearing on June 26, 2001 did not again proceed
because on said date petitioner filed with the
Sandiganbayan a motion to quash the amended
Information on the grounds that as against him, the
amended Information does not allege a
combination or series of overt or criminal acts
constitutive of plunder; as against him, the
amended Information does not allege a pattern of
criminal acts indicative of an overall unlawful
scheme or conspiracy; the money alleged in
paragraph (a) of the amended Information to have
been illegally received or collected does not
constitute "ill-gotten wealth" as defined in Section
1(d) of Republic Act No. 7080; and the amended
Information charges him of bribery and illegal
gambling.10 By way of riposte, the prosecution
objected to the holding of bail hearing until
petitioner agreed to withdraw his motion to quash.
The prosecution contended that petitioner's motion
to quash the amended Information was antithetical
to his petition for bail.
The Sandiganbayan reset the arraignment of
accused and the hearing on the petition for bail of
petitioner in Criminal Case No. 26558 for July 10,
2001 to enable it to resolve the pending incidents
and the motion to quash of petitioner. However,
even before the Sandiganbayan could resolve the
pending motions of petitioner and the prosecution,
petitioner filed with this Court on June 29, 2001 a
Petition for Habeas Corpus and Certiorari, docketed
as G.R. No. 148468, praying that the Court declare
void the questioned orders, resolutions and actions
of the Sandiganbayan on his claim that he was
thereby effectively denied of his right to due
process. Petitioner likewise prayed for the issuance
of a writ of habeas corpus; that the People be
declared to have waived their right to present
evidence in opposition to his petition for bail; and,
premised on the failure of the People to adduce
strong evidence of petitioner's guilt of plunder, that
he be granted provisional liberty on bail after due
proceedings.11
Meanwhile, on June 28, 2001, Jose "Jinggoy"
Estrada filed with the Sandiganbayan a motion
praying that said court resolve his motion to fix his
bail.
On July 9, 2001, the Sandiganbayan issued a
Resolution denying petitioner's motion to quash the
amended Information. Petitioner, through counsel,
received on said date a copy of said
resolution.12 The motion to fix bail filed by Jose
"Jinggoy" Estrada was also resolved by the
Sandiganbayan.
On July 10, 2001, just before his arraignment in
Criminal Case No. 26558, petitioner manifested to
the Sandiganbayan that he was going to file a
motion for reconsideration of the July 9, 2001
Resolution denying his motion to quash and for the
deferment of his arraignment. The Sandiganbayan,
however, declared that there was no provision in
the Rules of Court or in the Sandiganbayan's rules
granting the right to petitioner to file a motion for
the reconsideration of an interlocutory order issued
by it and ordered petitioner to orally argue his
motion for reconsideration. When petitioner
refused, the Sandiganbayan proceeded with his
arraignment. Petitioner refused to plead, impelling
the court to enter a plea of not guilty for him.
On July 20, 2001, petitioner filed with the Court a
Petition for Certiorari, docketed as G.R. No. 148769,
alleging that the Sandiganbayan acted without or in
excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction
in issuing its July 9, 2001 Resolution denying his
motion to quash, notwithstanding the fact that
material inculpatory allegations of the amended
Information against him do not constitute the crime
of plunder; and that he is charged, under the said
amended Information, for more than one offense.
Jose "Jinggoy" Estrada likewise filed petition for
certiorari with the Court docketed as G.R. No.
148965 for the nullification of a resolution of the
Sandiganbayan denying his motion to fix bail.
On August 9, 2001, petitioner filed with the Court
another Petition for Certiorari, docketed as G.R. No.
149116, assailing the Sandiganbayan's Resolution
dated 31 May 2001 which denied his April 6, 2001
Urgent Omnibus Motion and its June 25, 2001
Resolution denying his motion for reconsideration
of its May 31, 2001 Resolution.
Re: G.R. No. 148769
Petitioner avers that:
THE SANDIGANBAYAN ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION, IN DENYING PETITIONER
SERAPIO'S MOTION TO QUASH NOTWITHSTANDING
THAT —
I
THE FACTS ALLEGED IN THE AMENDED
INFORMATION AS AGAINST PETITIONER SERAPIO
DO NOT CONSTITUTE THE CRIME OF PLUNDER.
A The Amended Information, as against
petitioner Serapio, does not allege a
combination or series of overt or criminal
acts constitutive of plunder.
B The Amended Information, as against
petitioner Serapio, does not allege a pattern
of criminal acts indicative of an overall
unlawful scheme or conspiracy.
C The money described in paragraph (a) of
the Amended Information and alleged to
have been illegally received or collected
does not constitute 'ill-gotten wealth' as
defined in Section 1(d), Republic Act No.
7080, as amended.
II
THE AMENDED INFORMATION CHARGES MORE
THAN ONE OFFENSE."13
Petitioner asserts that, on the face of the amended
Information, he is charged with plunder only in
paragraph (a) which reads:
"(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 connivance 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;" 14
Petitioner asserts that there is no allegation in
paragraph (a) of the amended Information of a
"combination or series of overt or criminal acts"
constituting plunder as described in Section 1(d) of
R.A. 7080 as amended. Neither does the amended
Information allege "a pattern of criminal acts." He
avers that his single act of toleration or protection
of illegal gambling impelled by a single criminal
resolution does not constitute the requisite
"combination or series of acts" for plunder. He
further claims that the consideration consisting of
gifts, percentages or kickbacks in furtherance of said
resolution turned over to and received by former
President Joseph E. Estrada "on several occasions"
does not cure the defect in the amended
information. Petitioner insists that on the face of the
amended Information he is charged only with
bribery or illegal gambling and not of plunder.
Petitioner argues that the P540 million which forms
part of the P4,097,804,173.17 amassed by former
President Joseph E. Estrada in confabulation with his
co-accused is not ill-gotten wealth as defined in
Section 1(d) of R.A. 7080.
We do not agree with petitioner. Section 6, Rule 110
of the Revised Rules of Criminal Procedure provides
that:
"Sec. 6 Sufficiency of complaint or
information. — A complaint or information is
sufficient if it states the name of the
accused, the designation of the offense
given by the statute; the acts or omissions
complained of as constituting the offense;
the name of the offended party; the
approximate date of the commission of the
offense; and the place where the offense
was committed.
When the offense was committed by more
than one person, all of them shall be
included in the complaint or information."15
The acts or omissions complained or must be
alleged in such form as is sufficient to enable a
person of common understanding to know what
offense is intended to be charged and enable the
court to know the proper judgment. The
Information must allege clearly and accurately the
elements of the crime charged. What facts and
circumstances are necessary to be included therein
must be determined by reference to the definition
and elements of the specific crimes. The purpose of
the requirement of alleging all the elements of the
crime in the Information is to inform an accused of
the nature of the accusation against him so as to
enable him to suitably prepare for his
defense.16 Another purpose is to enable accused, if
found guilty, to plead his conviction in a subsequent
prosecution for the same offense.17 The use of
derivatives or synonyms or allegations of basic facts
constituting the offense charged is sufficient.18
In this case, the amended Information specifically
alleges that all the accused, including petitioner,
connived and conspired with former President
Joseph E. Estrada to commit plunder "through any
or a combination or a series of overt or criminal acts
or similar schemes or means." And in paragraph (a)
of the amended Information, petitioner and his co-
accused are charged with receiving or collecting,
directly or indirectly, on several instances money in
the aggregate amount of P545,000,000.00. In Jose
"Jinggoy" Estrada vs. Sandiganbayan (Third
Division), et al.,19 we held that the word "series" is
synonymous with the clause "on several instances";
it refers to a repetition of the same predicate act in
any of the items in Section 1(d) of the law. We
further held that the word "combination"
contemplates the commission of at least any two
different predicate acts in any of the said items. We
ruled that "plainly, subparagraph (a) of the
amended information charges accused therein,
including petitioner, with plunder committed by a
series of the same predicate act under Section
1(d)(2) of the law" and that:
"x x x Sub-paragraph (a) alleged the
predicate act of receiving, on several
instances, money from illegal gambling, in
consideration of toleration or protection of
illegal gambling, and expressly names
petitioner as one of those who conspired
with former President Estrada in committing
the offense. This predicate act corresponds
with the offense described in item [2] of the
enumeration in Section 1(d) of R.A. No.
7080. x x x."20
It is not necessary to allege in the amended
Information a pattern of overt or criminal acts
indicative of the overall unlawful scheme or
conspiracy because as Section 3 of R.A. 7080
specifically provides, the same is evidentiary and the
general rule is that matters of evidence need not be
alleged in the Information.21
The Court also ruled in Jose "Jinggoy" Estrada vs.
Sandiganbayan22 that the aggregate amount of
P4,097,804,173.17 inclusive of the P545 million
alleged in paragraph (a) of the amended
information is ill-gotten wealth as contemplated in
Section 1, paragraph 1(d) of Republic Act 7080, as
amended, and that all the accused in paragraph (a)
to (d) of the amended information conspired and
confederated with former President Estrada to
enable the latter to amass, accumulate or acquire ill-
gotten wealth in the aggregate amount of
P4,097,804,173.17.
Under the amended Information, all the accused,
including petitioner, are charged of having
conspired and confabulated together in committing
plunder. When two or more persons conspire to
commit a crime, each is responsible for all the acts
of others. In contemplation of law, the act of the
conspirator is the act of each of them.23Conspirators
are one man, they breathe one breath, they speak
one voice, they wield one arm and the law says that
the acts, words and declarations of each, while in
the pursuit of the common design, are the acts,
words and declarations of all.24
Petitioner asserts that he is charged under the
amended information of bribery and illegal
gambling and others. The Sandiganbayan, for its
part, held that petitioner is not charged with the
predicate acts of bribery and illegal gambling but is
charged only with one crime that of plunder:
"THE ISSUE OF WHETHER OR NOT THE
INFORMATION CHARGES MORE THAN ONE
OFFENSE
According to the accused Estradas and
Edward Serapio the information charges
more than one offense, namely, bribery
(Article 210 of the Revised Penal Code),
malversation of public funds or property
(Article 217, Revised Penal Code) and
violations of Sec. 3(e) of Republic Act (RA No.
3019) and Section 7(d) of RA 6713.
This contention is patently unmeritorious.
The acts alleged in the information are not
charged as separate offenses but as
predicate acts of the crime of plunder.
It should be stressed that the Anti-Plunder
law specifically Section 1(d) thereof does not
make any express reference to any specific
provision of laws, other than R.A. No. 7080,
as amended, which coincidentally may
penalize as a separate crime any of the overt
or criminal acts enumerated therein. The
said acts which form part of the combination
or series of act are described in their generic
sense. Thus, aside from 'malversation' of
public funds, the law also uses the generic
terms 'misappropriation', 'conversion' or
'misuse' of said fund. The fact that the acts
involved may likewise be penalized under
other laws is incidental. The said acts are
mentioned only as predicate acts of the
crime of plunder and the allegations relative
thereto are not to be taken or to be
understood as allegations charging separate
criminal offenses punished under the
Revised Penal Code, the Anti-Graft and
Corrupt Practices Act and Code of Conduct
and Ethical Standards for Public Officials and
Employees."25
This Court agrees with the Sandiganbayan. It is clear
on the face of the amended Information that
petitioner and his co-accused are charged only with
one crime of plunder and not with the predicate acts
or crimes of plunder. It bears stressing that the
predicate acts merely constitute acts of plunder and
are not crimes separate and independent of the
crime of plunder. Resultantly then, the petition is
dismissed.
Re: G.R. No. 149116
Petitioner assails the May 31, 2001 Joint Resolution
of the Sandiganbayan denying his April 4, 2001
Urgent Omnibus Motion contending that:
"GROUNDS FOR THE PETITION
THE SANDIGANBAYAN ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN SUMMARILY DENYING
PETITIONER SERAPIO'S URGENT OMNIBUS MOTION
AND MOTION FOR RECONSIDERATION (RE:
RESOLUTION DATED 31 MAY
2001), NOTWITHSTANDING THAT THE
OMBUDSMAN HAD TOTALLY DISREGARDED
EXCULPATORY EVIDENCE AND COMMITTED GRAVE
AND MANIFEST ERRORS OF LAW SERIOUSLY
PREJUDICIAL TO THE RIGHTS AND INTERESTS OF
PETITIONER SERAPIO, AND THERE IS NO PROBABLE
CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER
AS AGAINST PETITIONER SERAPIO."26
Petitioner claims that the Sandiganbayan
committed grave abuse of discretion in denying his
omnibus motion to hold in abeyance the issuance of
a warrant for his arrest as well as the proceedings in
Criminal Case No. 26558; to conduct a
determination of probable cause; and to direct the
Ombudsman to conduct a reinvestigation of the
charges him. Petitioner asseverates that the
Ombudsman had totally disregarded exculpatory
evidence and committed grave abuse of discretion
in charging him with plunder. He further argues that
there exists no probable cause to support an
indictment for plunder as against him.27
Petitioner points out that the joint resolution of the
Ombudsman does not even mention him in relation
to the collection and receipt of jueteng
money which started in 199828 and that the
Ombudsman inexplicably arrived at the conclusion
that the Erap Muslim Youth Foundation was a
money laundering front organization put up by
Joseph Estrada, assisted by petitioner, even though
the latter presented evidence that said Foundation
is a bona fide and legitimate private
29
foundation. More importantly, he claims, said
joint resolution does not indicate that he knew that
the P200 million he received for the Foundation
came from jueteng.30
Petitioner insists that he cannot be charged with
plunder since: (1) the P200 million he received does
not constitute "ill-gotten wealth" as defined in
Section 1(d) of R.A. No. 7080;31 (2) there is no
evidence linking him to the collection and receipt
of jueteng money;32 (3) there was no showing that
petitioner participated in a pattern of criminal acts
indicative of an overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill-
gotten wealth, or that his act of receiving the P200
million constitutes an overt criminal act of
plunder.33
Petitioner argues further that his motion for
reinvestigation is premised on the absolute lack of
evidence to support a finding of probable cause for
plunder as against him,34 and hence he should be
spared from the inconvenience, burden and
expense of a public trial.35
Petitioner also avers that the discretion of
government prosecutors is not beyond judicial
scrutiny. He asserts that while this Court does not
ordinarily look into the existence of probable cause
to charge a person for an offense in a given case, it
may do so in exceptional circumstances, which are
present in this case: (1) to afford adequate
protection to the constitutional rights of the
accused; (2) for the orderly administration of justice
or to avoid oppression; (3) when the acts of the
officer are without or in excess of authority; and (4)
where the charges are manifestly false and
motivated by the lust for vengeance.36 Petitioner
claims that he raised proper grounds for a
reinvestigation by asserting that in issuing the
questioned joint resolution, the Ombudsman
disregarded evidence exculpating petitioner from
the charge of plunder and committed errors of law
or irregularities which have been prejudicial to his
interest.37 He also states that during the joint
preliminary investigations for the various charges
against Joseph Estrada and his associates, of which
the plunder charge was only one of the eight
charges against Estrada et al., he was not furnished
with copies of the other complaints nor given the
opportunity to refute the evidence presented in
relation to the other seven cases, even though the
evidence presented therein were also used against
him, although he was only charged in the plunder
case.38
The People maintain that the Sandiganbayan
committed no grave abuse of discretion in denying
petitioner's omnibus motion. They assert that since
the Ombudsman found probable cause to charge
petitioner with the crime of plunder, the
Sandiganbayan is bound to assume jurisdiction over
the case and to proceed to try the same. They
further argue that "a finding of probable cause is
merely preliminary and prefatory of the eventual
determination of guilt or innocence of the accused,"
and that petitioner still has the chance to interpose
his defenses in a full blown trial where his guilt or
innocence may finally be determined.39
The People also point out that the Sandiganbayan
did not commit grave abuse of discretion in denying
petitioner's omnibus motion asking for, among
others, a reinvestigation by the Ombudsman,
because his motion for reconsideration of the
Ombudsman's joint resolution did not raise the
grounds of either newly discovered evidence, or
errors of law or irregularities, which under Republic
Act No. 6770 are the only grounds upon which a
motion for reconsideration may be filed.40
The People likewise insist that there exists probable
cause to charge petitioner with plunder as a co-
conspirator of Joseph Estrada.41
This Court does not agree with petitioner.
Case law has it that the Court does not interfere
with the Ombudsman's discretion in the conduct of
preliminary investigations. Thus, in Raro vs.
Sandiganbayan42 , the Court ruled:
"x x x. In the performance of his task to
determine probable cause, the
Ombudsman's discretion is paramount.
Thus, in Camanag vs. Guerrero, this Court
said:
'x x x. (S)uffice it to state that this
Court has adopted a policy of non-
interference in the conduct of
preliminary investigations, and
leaves to the investigating
prosecutor sufficient latitude of
discretion in the exercise of
determination of what constitutes
sufficient evidence as will establish
'probable cause' for filing of
information against the supposed
offender."
In Cruz, Jr. vs. People,43 the Court ruled thus:
"Furthermore, the Ombudsman's findings
are essentially factual in nature. Accordingly,
in assailing said findings on the contention
that the Ombudsman committed a grave
abuse of discretion in holding that petitioner
is liable for estafa through falsification of
public documents, petitioner is clearly
raising questions of fact here. His arguments
are anchored on the propriety or error in the
Ombudsman's appreciation of facts.
Petitioner cannot be unaware that the
Supreme Court is not a trier of facts, more so
in the consideration of the extraordinary writ
of certiorari where neither question of fact
nor even of law are entertained, but only
questions of lack or excess of jurisdiction or
grave abuse of discretion. Insofar as the third
issue is concerned, we find that no grave
abuse of discretion has been committed by
respondents which would warrant the
granting of the writ of certiorari."
Petitioner is burdened to allege and establish that
the Sandiganbayan and the Ombudsman for that
matter committed grave abuse of discretion in
issuing their resolution and joint resolution,
respectively. Petitioner failed to discharge his
burden. Indeed, the Court finds no grave abuse of
discretion on the part of the Sandiganbayan and the
Ombudsman in finding probable cause against
petitioner for plunder. Neither did the
Sandiganbayan abuse its discretion in denying
petitioner's motion for reinvestigation of the
charges against him in the amended Information. In
its Resolution of April 25, 2001, the Sandiganbayan
affirmed the finding of the Ombudsman that
probable cause exists against petitioner and his co-
accused for the crime of plunder, thus:
"In the light of the foregoing and considering
the allegations of the Amended Information
dated 18 April 2001 charging the accused
with the offense of PLUNDER and examining
carefully the evidence submitted in support
thereof consisting of the affidavits and
sworn statements and testimonies of
prosecution witnesses and several other
pieces of documentary evidence, as well as
the respective counter-affidavits of accused
former President Joseph Estrada dated
March 20, 2001, Jose "Jinggoy" Pimentel
Estrada dated February 20, 2001, Yolanda T.
Ricaforte dated January 21, 2001 and
Edward S. Serapio dated February 21, 2001,
the Court finds and so holds that probable
cause for the offense of PLUNDER exists to
justify issuance of warrants of arrest of
accused former President Joseph Ejercito
Estrada, Mayor 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, and Jane Doe a.k.a Delia Rajas."44
Likewise, in its Resolution dated May 31, 2001 of
petitioner's omnibus motion, the Sandiganbayan
noted that a preliminary investigation was fully
conducted in accordance with Rule II,
Administrative Order No. 7 of the Office of the
Ombudsman, pursuant to Sections 18, 23 and 27 of
Republic Act No. 6770 (The Ombudsman Act of
1989); and that all the basic complaints and
evidence in support thereof were served upon all
the accused.45 It was in light of such findings that the
Sandiganbayan held that there was no basis for the
allegation that accused therein (including
petitioner) were deprived of the right to seek a
reconsideration of the Ombudsman's Resolution
dated April 4, 2001 finding probable cause to charge
them with plunder after the conduct of preliminary
investigation in connection therewith. In addition,
the Sandiganbayan pointed out that petitioner filed
a motion for reconsideration of the Ombudsman's
resolution, but failed to show in his motion that
there were newly discovered evidence, or that the
preliminary investigation was tainted by errors of
law or irregularities, which are the only grounds for
which a reconsideration of the Ombudsman's
resolution may be granted.46
It bears stressing that the right to a preliminary
investigation is not a constitutional right, but is
merely a right conferred by statute.47 The absence
of a preliminary investigation does not impair the
validity of the Information or otherwise render the
same defective and neither does it affect the
jurisdiction of the court over the case or constitute
a ground for quashing the Information.48 If the lack
of a preliminary investigation does not render the
Information invalid nor affect the jurisdiction of the
court over the case, with more reason can it be said
that the denial of a motion for reinvestigation
cannot invalidate the Information or oust the court
of its jurisdiction over the case. Neither can it be said
that petitioner had been deprived of due process.
He was afforded the opportunity to refute the
charges against him during the preliminary
investigation.
The purpose of a preliminary investigation is merely
to determine whether a crime has been committed
and whether there is probable cause to believe that
the person accused of the crime is probably guilty
thereof and should be held for trial.49 As the Court
held in Webb vs. De Leon, "[a] finding of probable
cause needs only to rest on evidence showing that
more likely than not a crime has been committed
and was committed by the suspect. Probable cause
need not be based on clear and convincing evidence
of guilt, neither on evidence establishing guilt
beyond reasonable doubt and definitely, not on
evidence establishing absolute certainty of guilt.''50
Absent any showing of arbitrariness on the part of
the prosecutor or any other officer authorized to
conduct preliminary investigation, courts as a rule
must defer to said officer's finding and
determination of probable cause, since the
determination of the existence of probable cause is
the function of the prosecutor.51 The Court agrees
with the Sandiganbayan that petitioner failed to
establish that the preliminary investigation
conducted by the Ombudsman was tainted with
irregularity or that its findings stated in the joint
resolution dated April 4, 2001 are not supported by
the facts, and that a reinvestigation was necessary.
Certiorari will not lie to invalidate the
Sandiganbayan's resolution denying petitioner's
motion for reinvestigation since there is nothing to
substantiate petitioner's claim that it gravely
abused its discretion in ruling that there was no
need to conduct a reinvestigation of the case.52
The ruling in Rolito Go vs. Court of Appeals53 that an
accused shall not be deemed to have waived his
right to ask for a preliminary investigation after he
had been arraigned over his objection and despite
his insistence on the conduct of said investigation
prior to trial on the merits does not apply in the
instant case because petitioner merely prayed for a
reinvestigation on the ground of a newly-discovered
evidence. Irrefragably, a preliminary investigation
had been conducted by the Ombudsman prior to
the filing of the amended Information, and that
petitioner had participated therein by filing his
counter-affidavit. Furthermore, the Sandiganbayan
had already denied his motion for reinvestigation as
well as his motion for reconsideration thereon prior
to his arraignment.54 In sum then, the petition is
dismissed.
Re: G.R. No. 148468
As synthesized by the Court from the petition and
the pleadings of the parties, the issues for resolution
are: (1) Whether or not petitioner should first be
arraigned before hearings of his petition for bail may
be conducted; (2) Whether petitioner may file a
motion to quash the amended Information during
the pendency of his petition for bail; (3) Whether a
joint hearing of the petition for bail of petitioner and
those of the other accused in Criminal Case No.
26558 is mandatory; (4) Whether the People waived
their right to adduce evidence in opposition to the
petition for bail of petitioner and failed to adduce
strong evidence of guilt of petitioner for the crime
charged; and (5) Whether petitioner was deprived
of his right to due process in Criminal Case No.
26558 and should thus be released from
detention via a writ of habeas corpus.
On the first issue, petitioner contends that the
Sandiganbayan committed a grave abuse of its
discretion amounting to excess or lack of jurisdiction
when it deferred the hearing of his petition for bail
to July 10, 2001, arraigned him on said date and
entered a plea of not guilty for him when he refused
to be arraigned. He insists that the Rules on Criminal
Procedure, as amended, does not require that he be
arraigned first prior to the conduct of bail hearings
since the latter can stand alone and must, of
necessity, be heard immediately.55 Petitioner
maintains that his arraignment before the bail
hearings are set is not necessary since he would not
plead guilty to the offense charged, as is evident in
his earlier statements insisting on his innocence
during the Senate investigation of
the juetengscandal and the preliminary
investigation before the Ombudsman.56 Neither
would the prosecution be prejudiced even if it
would present all its evidence before his
arraignment because, under the Revised Penal
Code, a voluntary confession of guilt is mitigating
only if made prior to the presentation of evidence
for the prosecution,57 and petitioner admitted that
he cannot repudiate the evidence or proceedings
taken during the bail hearings because Rule 114,
Section 8 of the Revised Rules of Court expressly
provides that evidence present during bail hearings
are automatically reproduced during the
trial.58 Petitioner likewise assures the prosecution
that he is willing to be arraigned prior to the posting
of a bail bond should he be granted bail.59
The People insist that arraignment is necessary
before bail hearings may be commenced, because it
is only upon arraignment that the issues are joined.
The People stress that it is only when an accused
pleads not guilty may he file a petition for bail and if
he pleads guilty to the charge, there would be no
more need for him to file said petition. Moreover,
since it is during arraignment that the accused is first
informed of the precise charge against him, he must
be arraigned prior to the bail hearings to prevent
him from later assailing the validity of the bail
hearings on the ground that he was not properly
informed of the charge against him, especially
considering that, under Section 8, Rule 114 of the
Revised Rules of Court, evidence presented during
such proceedings are considered automatically
reproduced at the trial.60 Likewise, the arraignment
of accused prior to bail hearings diminishes the
possibility of an accused's flight from the jurisdiction
of the Sandiganbayan because trial in absentia may
be had only if an accused escapes after he has been
arraigned.61 The People also contend that the
conduct of bail hearings prior to arraignment would
extend to an accused the undeserved privilege of
being appraised of the prosecution's evidence
before he pleads guilty for purposes of penalty
reduction.62
Although petitioner had already been arraigned on
July 10, 2001 and a plea of not guilty had been
entered by the Sandiganbayan on his behalf,
thereby rendering the issue as to whether an
arraignment is necessary before the conduct of bail
hearings in petitioner's case moot, the Court takes
this opportunity to discuss the controlling precepts
thereon pursuant to its symbolic function of
educating the bench and bar.63
The contention of petitioner is well-taken. The
arraignment of an accused is not a prerequisite to
the conduct of hearings on his petition for bail. A
person is allowed to petition for bail as soon as he is
deprived of his liberty by virtue of his arrest or
voluntary surrender.64 An accused need not wait for
his arraignment before filing a petition for bail.
In Lavides vs. Court of Appeals,65 this Court ruled on
the issue of whether an accused must first be
arraigned before he may be granted bail. Lavides
involved an accused charged with violation of
Section 5(b) Republic Act No. 7610 (The Special
Protection of Children Against Abuse, Exploitation
and Discrimination Act), an offense punishable
by reclusion temporal in its medium period
to reclusion perpetua. The accused therein
assailed, inter alia, the trial court's imposition of the
condition that he should first be arraigned before he
is allowed to post bail. We held therein that "in
cases where it is authorized, bail should be granted
before arraignment, otherwise the accused may be
precluded from filing a motion to quash."66
However, the foregoing pronouncement should not
be taken to mean that the hearing on a petition for
bail should at all times precede arraignment,
because the rule is that a person deprived of his
liberty by virtue of his arrest or voluntary surrender
may apply for bail as soon as he is deprived of his
liberty, even before a complaint or information is
filed against him.67 The Court's pronouncement
in Lavides should be understood in light of the fact
that the accused in said case filed a petition for bail
as well as a motion to quash the informations filed
against him. Hence, we explained therein that to
condition the grant of bail to an accused on his
arraignment would be to place him in a position
where he has to choose between (1) filing a motion
to quash and thus delay his release on bail because
until his motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing the
filing of a motion to quash so that he can be
arraigned at once and thereafter be released on
bail. This would undermine his constitutional right
not to be put on trial except upon a valid complaint
or Information sufficient to charge him with a crime
and his right to bail.68
It is therefore not necessary that an accused be first
arraigned before the conduct of hearings on his
application for bail. For when bail is a matter of
right, an accused may apply for and be granted bail
even prior to arraignment. The ruling in Lavides also
implies that an application for bail in a case involving
an offense punishable by reclusion perpetua to
death may also be heard even before an accused is
arraigned. Further, if the court finds in such case
that the accused is entitled to bail because the
evidence against him is not strong, he may be
granted provisional liberty even prior to
arraignment; for in such a situation, bail would be
"authorized" under the circumstances. In fine, the
Sandiganbayan committed a grave abuse of its
discretion amounting to excess of jurisdiction in
ordering the arraignment of petitioner before
proceeding with the hearing of his petition for bail.
With respect to the second issue of whether
petitioner may file a motion to quash during the
pendency of his petition for bail, petitioner
maintains that a motion to quash and a petition for
bail are not inconsistent, and may proceed
independently of each other. While he agrees with
the prosecution that a motion to quash may in some
instances result in the termination of the criminal
proceedings and in the release of the accused
therein, thus rendering the petition for bail moot
and academic, he opines that such is not always the
case; hence, an accused in detention cannot be
forced to speculate on the outcome of a motion to
quash and decide whether or not to file a petition
for bail or to withdraw one that has been filed.69 He
also insists that the grant of a motion to quash does
not automatically result in the discharge of an
accused from detention nor render moot an
application for bail under Rule 117, Section 5 of the
Revised Rules of Court.70
The Court finds that no such inconsistency exists
between an application of an accused for bail and
his filing of a motion to quash. Bail is the security
given for the release of a person in the custody of
the law, furnished by him or a bondsman, to
guarantee his appearance before any court as
required under the conditions set forth under the
Rules of Court.71 Its purpose is to obtain the
provisional liberty of a person charged with an
offense until his conviction while at the same time
securing his appearance at the trial.72 As stated
earlier, a person may apply for bail from the
moment that he is deprived of his liberty by virtue
of his arrest or voluntary surrender.73
On the other hand, a motion to quash an
Information is the mode by which an accused assails
the validity of a criminal complaint or Information
filed against him for insufficiency on its face in point
of law, or for defects which are apparent in the face
of the Information.74 An accused may file a motion
to quash the Information, as a general rule, before
arraignment.75
These two reliefs have objectives which are not
necessarily antithetical to each other. Certainly, the
right of an accused right to seek provisional liberty
when charged with an offense not punishable by
death, reclusion perpetuaor life imprisonment, or
when charged with an offense punishable by such
penalties but after due hearing, evidence of his guilt
is found not to be strong, does not preclude his right
to assail the validity of the Information charging him
with such offense. It must be conceded, however,
that if a motion to quash a criminal complaint or
Information on the ground that the same does not
charge any offense is granted and the case is
dismissed and the accused is ordered released, the
petition for bail of an accused may become moot
and academic.
We now resolve the issue of whether or not it is
mandatory that the hearings on the petitions for bail
of petitioner and accused Jose "Jinggoy" Estrada in
Criminal Case No. 26558 and the trial of the said
case as against former President Joseph E. Estrada
be heard jointly.
Petitioner argues that the conduct of joint bail
hearings would negate his right to have his petition
for bail resolved in a summary proceeding since said
hearings might be converted into a full blown trial
on the merits by the prosecution.76
For their part, the People claim that joint bail
hearings will save the court from having to hear the
same witnesses and the parties from presenting the
same evidence where it would allow separate bail
hearings for the accused who are charged as co-
conspirators in the crime of plunder.77
In issuing its June 1, 2001 Order directing all accused
in Criminal Case No. 26558 to participate in the bail
hearings, the Sandiganbayan explained that the
directive was made was in the interest of the speedy
disposition of the case. It stated:
" x x x The obvious fact is, if the rest of the
accused other than the accused Serapio
were to be excused from participating in the
hearing on the motion for bail of accused
Serapio, under the pretext that the same
does not concern them and that they will
 participate in any hearing where evidence is
presented by the prosecution only if and
when they will already have filed their
petitions for bail, or should they decide not
to file any, that they will participate only
during the trial proper itself, then everybody
will be faced with the daunting prospects of
having to go through the process of
introducing the same witness and pieces of
evidence two times, three times or four
times, as many times as there are petitions
for bail filed. Obviously, such procedure is
not conducive to the speedy termination of
a case. Neither can such procedure be
characterized as an orderly proceeding."78
There is no provision in the Revised Rules of Criminal
Procedure or the Rules of Procedure of the
Sandiganbayan governing the hearings of two or
more petitions for bail filed by different accused or
that a petition for bail of an accused be heard
simultaneously with the trial of the case against the
other accused. The matter of whether or not to
conduct a joint hearing of two or more petitions for
bail filed by two different accused or to conduct a
hearing of said petition jointly with the trial against
another accused is addressed to the sound
discretion of the trial court. Unless grave abuse of
discretion amounting to excess or lack of jurisdiction
is shown, the Court will not interfere with the
exercise by the Sandiganbayan of its discretion.
It may be underscored that in the exercise of its
discretion, the Sandiganbayan must take into
account not only the convenience of the State,
including the prosecution, but also that of the
accused and the witnesses of both the prosecution
and the accused and the right of accused to a speedy
trial. The Sandiganbayan must also consider the
complexities of the cases and of the factual and legal
issues involving petitioner and the other accused.
After all, if this Court may echo the observation of
the United States Supreme Court, the State has a
stake, with every citizen, in his being afforded our
historic individual protections, including those
surrounding criminal prosecutions. About them, this
Court dares not become careless or complacent
when that fashion has become rampant over the
earth.79
It must be borne in mind that in Ocampo vs.
Bernabe,80 this Court held that in a petition for bail
hearing, the court is to conduct only a summary
hearing, meaning such brief and speedy method of
receiving and considering the evidence of guilt as is
practicable and consistent with the purpose of the
hearing which is merely to determine the weight of
evidence for purposes of bail. The court does not try
the merits or enter into any inquiry as to the weight
that ought to be given to the evidence against the
accused, nor will it speculate on the outcome of the
trial or on what further evidence may be offered
therein. It may confine itself to receiving such
evidence as has reference to substantial matters,
avoiding unnecessary thoroughness in the
examination and cross-examination of witnesses,
and reducing to a reasonable minimum the amount
of corroboration particularly on details that are not
essential to the purpose of the hearing.
A joint hearing of two separate petitions for bail by
two accused will of course avoid duplication of time
and effort of both the prosecution and the courts
and minimizes the prejudice to the accused,
especially so if both movants for bail are charged of
having conspired in the commission of the same
crime and the prosecution adduces essentially the
same evident against them. However, in the cases at
bar, the joinder of the hearings of the petition for
bail of petitioner with the trial of the case against
former President Joseph E. Estrada is an entirely
different matter. For, with the participation of the
former president in the hearing of petitioner's
petition for bail, the proceeding assumes a
completely different dimension. The proceedings
will no longer be summary. As against former
President Joseph E. Estrada, the proceedings will be
a full-blown trial which is antithetical to the nature
of a bail hearing. Moreover, following our ruling
in Jose Estrada vs. Sandiganbayan, supra where we
stated that Jose "Jinggoy" Estrada can only be
charged with conspiracy to commit the acts alleged
in sub-paragraph (a) of the amended Information
since it is not clear from the latter if the accused in
sub-paragraphs (a) to (d) thereof conspired with
each other to assist Joseph Estrada to amass ill-
gotten wealth, we hold that petitioner can only be
charged with having conspired with the other co-
accused named in sub-paragraph (a) by "receiving or
collecting, directly or indirectly, on several
instances, money x x x from illegal gambling, x x x in
consideration of toleration or protection of illegal
gambling.81Thus, with respect to petitioner, all that
the prosecution needs to adduce to prove that the
evidence against him for the charge of plunder is
strong are those related to the alleged receipt or
collection of money from illegal gambling as
described in sub-paragraph (a) of the amended
Information. With the joinder of the hearing of
petitioner's petition for bail and the trial of the
former President, the latter will have the right to
cross-examine intensively and extensively the
witnesses for the prosecution in opposition to the
petition for bail of petitioner. If petitioner will
adduce evidence in support of his petition after the
prosecution shall have concluded its evidence, the
former President may insist on cross-examining
petitioner and his witnesses. The joinder of the
hearing of petitioner's bail petition with the trial of
former President Joseph E. Estrada will be
prejudicial to petitioner as it will unduly delay the
determination of the issue of the right of petitioner
to obtain provisional liberty and seek relief from this
Court if his petition is denied by the respondent
court. The indispensability of the speedy resolution
of an application for bail was succinctly explained by
Cooley in his treatise Constitutional Limitations,
thus:
"For, if there were any mode short of
confinement which would with reasonable
certainty insure the attendance of the
accused to answer the accusation, it would
not be justifiable to inflict upon him that
indignity, when the effect is to subject him in
a greater or lesser degree, to the
punishment of a guilty person, while as yet it
is not determined that he has not committed
any crime."82
While the Sandiganbayan, as the court trying
Criminal Case No. 26558, is empowered "to proceed
with the trial of the case in the manner it determines
best conducive to orderly proceedings and speedy
termination of the case,"83the Court finds that it
gravely abused its discretion in ordering that the
petition for bail of petitioner and the trial of former
President Joseph E. Estrada be held jointly. It bears
stressing that the Sandiganbayan itself
acknowledged in its May 4, 2001 Order the "pre-
eminent position and superiority of the rights of
[petitioner] to have the matter of his provisional
liberty resolved . . . without unnecessary
delay,"84 only to make a volte face and declare that
after all the hearing of petition for bail of petitioner
and Jose "Jinggoy" Estrada and the trial as against
former President Joseph E. Estrada should be held
simultaneously. In ordering that petitioner's
petition for bail to be heard jointly with the trial of
the case against his co-accused former President
Joseph E. Estrada, the Sandiganbayan in effect
allowed further and unnecessary delay in the
resolution thereof to the prejudice of petitioner. In
fine then, the Sandiganbayan committed a grave
abuse of its discretion in ordering a simultaneous
hearing of petitioner's petition for bail with the trial
of the case against former President Joseph E.
Estrada on its merits.
With respect to petitioner's allegations that the
prosecution tried to delay the bail hearings by filing
dilatory motions, the People aver that it is petitioner
and his co-accused who caused the delay in the trial
of Criminal Case No. 26558 by their filing of
numerous manifestations and pleadings with the
Sandiganbayan.85 They assert that they filed the
motion for joint bail hearing and motion for earlier
arraignment around the original schedule for the
bail hearings which was on May 21–25, 2001.86
They argue further that bail is not a matter of right
in capital offenses.87 In support thereof, they cite
Article III, Sec 13 of the Constitution, which states
that —
"All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall before
conviction be bailable by sufficient sureties,
or be released on recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive
bail shall not be required."88
The People also cited Rule 114, Secs. 7 and 4 of the
Revised Rules of Court which provide:
 "Sec. 7 Capital offense or an offense
punishable by reclusion perpetua or life
imprisonment, not bailable. — No person
charged with a capital offense, or an offense
punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail
when evidence of guilt is strong, regardless
of the stage of the criminal prosecution.
Sec. 4 Bail, a matter of right, exception. — All
persons in custody shall be admitted to bail
as a matter of right, with sufficient sureties,
or released on recognizance as prescribed by
law or this Rule x x x (b) and before
conviction by the Regional Trial Court of an
offense not punishable by death, reclusion
perpetua or life imprisonment."89
Irrefragably, a person charged with a capital offense
is not absolutely denied the opportunity to obtain
provisional liberty on bail pending the judgment of
his case. However, as to such person, bail is not a
matter of right but is discretionary upon the
court.90 Had the rule been otherwise, the Rules
would not have provided for an application for bail
by a person charged with a capital offense under
Rule 114, Section 8 which states:
"Sec. 8 Burden of proof in bail application. —
At the hearing of an application for bail filed
by a person who is in custody for the
commission of an offense punishable by
death, reclusion perpetua, or life
imprisonment, the prosecution has the
burden of showing that the evidence of guilt
is strong. The evidence presented during the
bail hearing shall be considered
automatically reproduced at the trial but,
upon motion of either party, the court may
recall any witness for additional examination
unless the latter is dead, outside the
Philippines, or otherwise unable to testify."91
Under the foregoing provision, there must be a
showing that the evidence of guilt against a person
charged with a capital offense is not strong for the
court to grant him bail. Thus, upon an application for
bail by the person charged with a capital offense, a
hearing thereon must be conducted, where the
prosecution must be accorded an opportunity to
discharge its burden of proving that the evidence of
guilt against an accused is strong.92 The prosecution
shall be accorded the opportunity to present all the
evidence it may deem necessary for this
purpose.93When it is satisfactorily demonstrated
that the evidence of guilt is strong, it is the court's
duty to deny the application for bail. However, when
the evidence of guilt is not strong, bail becomes a
matter of right.94
In this case, petitioner is not entitled to bail as a
matter of right at this stage of the proceedings.
Petitioner's claim that the prosecution had refused
to present evidence to prove his guilt for purposes
of his bail application and that the Sandiganbayan
has refused to grant a hearing thereon is not borne
by the records. The prosecution did not waive,
expressly or even impliedly, its right to adduce
evidence in opposition to the petition for bail of
petitioner. It must be noted that the Sandiganbayan
had already scheduled the hearing dates for
petitioner's application for bail but the same were
reset due to pending incidents raised in several
motions filed by the parties, which incidents had to
be resolved by the court prior to the bail hearings.
The bail hearing was eventually scheduled by the
Sandiganbayan on July 10, 2001 but the hearing did
not push through due to the filing of this petition on
June 29, 2001.
The delay in the conduct of hearings on petitioner's
application for bail is therefore not imputable solely
to the Sandiganbayan or to the prosecution.
Petitioner is also partly to blame therefor, as is
evident from the following list of motions filed by
him and by the prosecution:
Motions filed by petitioner:
• Urgent Omnibus Motion, dated April 6,
2001, for (1) leave to file motion for
reconsideration/reinvestigation and to
direct ombudsman to conduct
reinvestigation; (2) conduct a determination
of probable cause as would suggest the
issuance of house arrest; (3) hold in
abeyance the issuance of warrant of arrest
 and other proceedings pending
determination of probable cause;
• Motion for Early Resolution, dated May
24, 2001;
• Urgent Motion to Hold in Abeyance
Implementation or Service of Warrant of
Arrest for Immediate Grant of bail or For
Release on Recognizance, dated April 25,
2001;
• Urgent Motion to allow Accused
Serapio to Vote at Obando, Bulacan, dated
May 11, 2001;
• Urgent Motion for Reconsideration,
dated May 22, 2001, praying for Resolution
of May 18, 2001 be set aside and bail
hearings be set at the earliest possible time;
• Urgent Motion for Immediate Release
on Bail or Recognizance, dated May 27,
2001;
• Motion for Reconsideration of denial
of Urgent Omnibus Motion, dated June 13,
2001, praying that he be allowed to file a
Motion for Reinvestigation; and
• Motion to Quash, dated June 26,
2001.95
Motions filed by the prosecution:
• Motion for Earlier Arraignment, dated
May 8, 2001;96
• Motion for Joint Bail Hearings of
Accused Joseph Estrada, Jose "Jinggoy"
Estrada and Edward Serapio, dated May 8,
2001;97
• Opposition to the Urgent Motion for
Reconsideration and Omnibus Motion to
Adjust Earlier Arraignment, dated May 25,
2001;98 and
• Omnibus Motion for Examination,
Testimony and Transcription in Filipino,
dated June 19, 2001.99
The other accused in Criminal Case No. 26558 also
contributed to the aforesaid delay by their filing of
the following motions:
• Motion to Quash or Suspend, dated
April 24, 2001, filed by Jinggoy Estrada,
assailing the constitutionality of R.A. No.
7080 and praying that the Amended
Information be quashed;
• Very Urgent Omnibus Motion, dated
April 30, 2001, filed by Jinggoy Estrada,
praying that he be (1)excluded from the
Amended Information for lack of probable
cause; (2) released from custody; or in the
alternative, (3) be allowed to post bail;
• Urgent Ex-Parte Motion to Place on
House Arrest, dated April 25, 2001, filed by
Joseph and Jinggoy Estrada, praying that
they be placed on house arrest during the
pendency of the case;
• Position Paper [re: House Arrest],
dated May 2, 2001, filed by Joseph and
Jinggoy Estrada;
• Supplemental Position Paper [re:
House Arrest], dated May 2, 2001, filed by
Joseph and Jinggoy Estrada;
• Omnibus Motion, dated May 7, 2001,
filed by Joseph Estrada, praying by
reinvestigation of the case by the
Ombudsman or the outright dismissal of the
case;
• Urgent Ex-Parte Motion for Extension,
dated May 2, 2001, filed by Jinggoy Estrada,
requesting for five (5) days within which to
respond to the Opposition to Motion to
Quash in view of the holidays and election-
related distractions;
• Opposition to Urgent Motion for Earlier
Arraignment, dated May 10, 2001, filed by
Joseph Estrada;
• Omnibus Manifestation on voting and
custodial arrangement, dated May 11, 2001,
filed by Joseph and Jinggoy Estrada, praying
that they be placed on house arrest;
• Manifestation regarding house arrest,
dated May 6, 2001, filed by Joseph and
Jinggoy Estrada;
• Summation regarding house arrest,
dated May 23, 2001, filed by Joseph and
Jinggoy Estrada;
• Urgent Manifestation & Motion, dated
May 6, 2001 filed by Jinggoy Estrada;
• Manifestation, dated May 28, 2001,
filed by Joseph and Jinggoy Estrada, praying
that they be allowed to be confined in Tanay;
• Motion to charge as Accused Luis
"Chavit" Singson, filed by Joseph Estrada;
• Omnibus Motion, dated June 11, 2001,
filed by Joseph and Jinggoy Estrada, seeking
reconsideration of denial of requests for
 house arrest, for detention in Tanay or Camp
Crame; motion for inhibition of Justice
Badoy;
• Urgent Motion to Allow Accused to
Clear His Desk as Mayor of San Juan, Metro
Manila, dated June 28, 2001, filed by Jinggoy
Estrada;
• Motion for Reconsideration, dated
June 9, 2001, filed by Joseph and Jinggoy
Estrada, praying that the resolution
compelling them to be present at petitioner
Serapio's hearing for bail be reconsidered;
• Motion to Quash, dated June 7, 2001,
filed by Joseph Estrada;
• Still Another Manifestation, dated June
14, 2001, filed by Joseph and Jinggoy Estrada
stating that Bishop Teodoro Bacani favors
their house arrest;
• Manifestation, dated June 15, 2001,
filed by Joseph and Jinggoy Estrada, waiving
their right to be present at the June 18 and
21, 2001 bail hearings and reserving their
right to trial with assessors;
• Omnibus Motion for Instructions: 30-
Day House Arrest; Production, Inspection
and Copying of Documents; and Possible
Trial with Assessors, dated June 19, 2001,
filed by Joseph and Jinggoy Estrada;
• Urgent Motion for Additional Time to
Wind Up Affairs, dated June 20, 2001, filed
by Jinggoy Estrada;
• Manifestation, dated June 22, 2001,
filed by Jinggoy Estrada, asking for free dates
for parties, claiming that denial of bail is
cruel and inhuman, reiterating request for
gag order of prosecution witnesses, availing
of production, inspection and copying of
documents, requesting for status of alias
case; and
• Compliance, dated June 25, 2001, filed
by Jinggoy Estrada, requesting for
permission to attend some municipal affairs
in San Juan, Metro Manila.100
Furthermore, the Court has previously ruled that
even in cases where the prosecution refuses to
adduce evidence in opposition to an application for
bail by an accused charged with a capital offense,
the trial court is still under duty to conduct a hearing
on said application.101 The rationale for such
requirement was explained in Narciso vs. Sta.
Romana-Cruz (supra), citing Basco vs. Rapatalo:102
"When the grant of bail is discretionary, the
prosecution has the burden of showing that
the evidence of guilt against the accused is
strong. However, the determination of
whether or not the evidence of guilt is strong,
being a matter of judicial discretion, remains
with the judge. This discretion by the very
nature of things, may rightly be exercised
only after the evidence is submitted to the
court at the hearing. Since the discretion is
directed to the weight of the evidence and
since evidence cannot properly be weighed if
not duly exhibited or produced before the
court, it is obvious that a proper exercise of
judicial discretion requires that the evidence
of guilt be submitted to the court, the
petitioner having the right of cross-
examination and to introduce his own
evidence in rebuttal."103
Accordingly, petitioner cannot be released from
detention until the Sandiganbayan conducts a
hearing of his application for bail and resolve the
same in his favor. Even then, there must first be a
finding that the evidence against petitioner is not
strong before he may be granted bail.
Anent the issue of the propriety of the issuance of a
writ of habeas corpus for petitioner, he contends
that he is entitled to the issuance of said writ
because the State, through the prosecution's refusal
to present evidence and by the Sandiganbayan's
refusal to grant a bail hearing, has failed to
discharge its burden of proving that as against him,
evidence of guilt for the capital offense of plunder is
strong. Petitioner contends that the prosecution
launched "a seemingly endless barrage of
obstructive and dilatory moves" to prevent the
conduct of bail hearings. Specifically, the
prosecution moved for petitioner's arraignment
before the commencement of bail hearings and
insisted on joint bail hearings for petitioner, Joseph
Estrada and Jinggoy Estrada despite the fact that it
was only petitioner who asked for a bail hearing;
manifested that it would present its evidence as if it
is the presentation of the evidence in chief, meaning
that the bail hearings would be concluded only after
the prosecution presented its entire case upon the
accused; and argued that petitioner's motion to
quash and his petition for bail are inconsistent, and
therefore, petitioner should choose to pursue only
one of these two remedies.104 He further claims that
the Sandiganbayan, through its questioned orders
and resolutions postponing the bail hearings
effectively denied him of his right to bail and to due
process of law.105
Petitioner also maintains that the issuance by the
Sandiganbayan of new orders canceling the bail
hearings which it had earlier set did not render moot
and academic the petition for issuance of a writ
of habeas corpus, since said orders have resulted in
a continuing deprivation of petitioner's right to
bail.106 He argues further that the fact that he was
arrested and is detained pursuant to valid process
does not by itself negate the efficacy of the remedy
of habeas corpus. In support of his contention,
petitioner cites Moncupa vs. Enrile,107 where the
Court held that habeas corpus extends to instances
where the detention, while valid from its inception,
has later become arbitrary.108
However, the People insist that habeas corpus is not
proper because petitioner was arrested pursuant to
the amended information which was earlier filed in
court,109 the warrant of arrest issuant pursuant
thereto was valid, and petitioner voluntarily
surrendered to the authorities.110
As a general rule, the writ of habeas corpus will not
issue where the person alleged to be restrained of
his liberty in custody of an officer under a process
issued by the court which jurisdiction to do so.111 In
exceptional circumstances, habeas corpus may be
granted by the courts even when the person
concerned is detained pursuant to a valid arrest or
his voluntary surrender, for this writ of liberty is
recognized as "the fundamental instrument for
safeguarding individual freedom against arbitrary
and lawless state action" due to "its ability to cut
through barriers of form and procedural
mazes."112 Thus, in previous cases, we issued the
writ where the deprivation of liberty, while initially
valid under the law, had later become invalid,113 and
even though the persons praying for its issuance
were not completely deprived of their liberty.114
The Court finds no basis for the issuance of a writ
of habeas corpus in favor of petitioner. The general
rule that habeas corpus does not lie where the
person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court
which had jurisdiction to issue the same115 applies,
because petitioner is under detention pursuant to
the order of arrest issued by the Sandiganbayan on
April 25, 2001 after the filing by the Ombudsman of
the amended information for plunder against
petitioner and his co-accused. Petitioner had in fact
voluntarily surrendered himself to the authorities
on April 25, 2001 upon learning that a warrant for
his arrest had been issued.
The ruling in Moncupa vs. Enrile116 that habeas
corpus will lie where the deprivation of liberty which
was initially valid has become arbitrary in view of
subsequent developments finds no application in
the present case because the hearing on petitioner's
application for bail has yet to commence. As stated
earlier, they delay in the hearing of petitioner's
petition for bail cannot be pinned solely on the
Sandiganbayan or on the prosecution for that
matter. Petitioner himself is partly to be blamed.
Moreover, a petition for habeas corpus is not the
appropriate remedy for asserting one's right to
bail.117 It cannot be availed of where accused is
entitled to bail not as a matter of right but on the
discretion of the court and the latter has not abused
such discretion in refusing to grant bail,118 or has not
even exercised said discretion. The proper recourse
is to file an application for bail with the court where
the criminal case is pending and to allow hearings
thereon to proceed.
The issuance of a writ of habeas corpus would not
only be unjustified but would also preempt the
Sandiganbayan's resolution of the pending
application for bail of petitioner. The recourse of
petitioner is to forthwith proceed with the hearing
on his application for bail.
IN THE LIGHT OF ALL THE FOREGOING, judgment is
hereby rendered as follows:
1 In G.R. No. 148769 and G.R. No. 149116, the
petitions are DISMISSED. The resolutions of
respondent Sandiganbayan subject of said petitions
are AFFIRMED; and
2 In G.R. No. 148468, the petition is PARTIALLY
GRANTED. The resolution of respondent
Sandiganbayan, Annex "L" of the petition, ordering
a joint hearing of petitioner's petition for bail and
the trial of Criminal Case No. 26558 as against
former President Joseph E. Estrada is SET ASIDE; the
arraignment of petitioner on July 10, 2001 is also SET
ASIDE.
No costs.
SO ORDERED.
Davide, Jr., C .J ., Bellosillo, Puno, Mendoza,
Panganiban, Quisumbing, Austria-Martinez,
Corona, Carpio-Morales and Azcuna, JJ ., concur.
Vitug, J ., see separate opinion.
Ynares-Santiago, J ., joins the dissent of Justice
Sandoval-Gutierrez.
Sandoval-Gutierrez, J ., see dissenting opinion.
Carpio, J ., no part, prior inhibition in plunder cases.
Separate Opinions
VITUG, J.:
I fully subscribe to the ponencia in G.R. No. 148468
that —
a) The arraignment of an accused is not a
prerequisite to the conduct of hearings on a
petition for bail. A person is allowed to
petition for bail as soon as he is deprived of
his liberty by virtue of his arrest or voluntary
surrender.
b) There is no inconsistency between an
application of an accused for bail and his
filing of a motion to quash, these two reliefs
not being necessarily antithetical to each
other.
c) The joinder of hearing of herein
petitioner's bail petition with the trial of
former President Joseph Estrada indeed
could unduly delay the determination of the
issue of the right of petitioner to obtain
provisional liberty.
d) The claim of petitioner that the
prosecution has refused to present evidence
to prove his guilt for purposes of his bail
application and that the Sandiganbayan has
refused to grant a hearing thereon hardly
finds substantiation. Neither has the
prosecution waived, expressly or even
impliedly, its right to adduce evidence in
opposition to the petition for bail of
petitioner.
e) There is no basis for the issuance of a writ
of habeas corpus in favor of
petitioner. Habeas corpus does not lie
where the person alleged to be restrained of
his liberty is in the custody of an officer
under process issued by a court having
jurisdiction thereover.
In G.R. No. 148769 and G.R. No. 149116, the issues
for resolution are analogous to those posed in G.R.
No. 148965, entitled "Jose 'Jinggoy' Estrada vs.
Sandiganbayan [Third Division], People of the
Philippines and Office of the Ombudsman," decided
by the Court on 26 February 2002. Petitioner Atty.
Edward Serapio stands indicted with the former
President, Mr. Joseph E. Estrada, for plunder.
Petitioner is charged with exactly the same degree
of culpability as that of Mr. Jose "Jinggoy" Estrada,
thusly:
"AMENDED INFORMATION
"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. 7080, as amended by
Sec. 12 of R.A. 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 PUBLIC OFFICER,
BEING THEN THE 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
wilfully, 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
connivance 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;"
Atty. Serapio, in G.R. No. 148769, questions the
denial by the Sandiganbayan of his motion to quash
the Amended Information on the ground that,
among other things, it alleges, at least as to him,
neither a combination or series of overt acts
constitutive of plunder nor a pattern of criminal acts
indicative of an overall unlawful scheme in
conspiracy with others. In G.R. No. 149116,
petitioner claims that the Sandiganbayan has
committed grave abuse of discretion in denying his
omnibus motion to hold in abeyance the issuance of
a warrant for his arrest, as well as the proceedings
in Criminal Case No. 26558), to conduct a
determination of probable cause, and to direct the
Ombudsman to conduct a reinvestigation of the
charges against him.
In my separate opinion in G.R. No. 148965, which I
now reiterate, I have said:
"Plunder may be committed by any public
officer either by himself or "in connivance"
with other persons; it may also be
committed by a person who participates
with a public officer in the commission of an
offense contributing to the crime of plunder.
A person may thus be held accountable
under the law by conniving with the
principal co-accused or by participating in
the commission of "an offense" contributing
 to the crime of plunder. The term "in
connivance" would suggest an agreement or
consent to commit an unlawful act or deed
with or by another, to connive being to
cooperate secretly or privily with
another.1 Upon the other hand,
to participate is to have a part or a share in
conjunction with another of the proceeds of
the unlawful act or deed.
"The amended Information alleged
"connivance" and would assume that
petitioner and his co-accused had a common
design in perpetrating the violations
complained of constitutive of "plunder."
The Supreme Court in Estrada vs.
Sandiganbayan2 has declared the anti-plunder law
constitutional for being neither vague nor
ambiguous on the thesis that the terms "series" and
"combination" are not unsusceptible to firm
understanding. "Series" refers to two or more
acts falling under the same category of the
enumerated acts provided in Section 1(d)3 of the
statute; "combination" pertains to two or more
acts falling under at least two separate categories
mentioned in the same law.4
"xxx xxx xxx
"The government argues that the illegal act
ascribed to petitioner is a part of the chain
that links the various acts of plunder by the
principal accused. It seems to suggest that a
mere allegation of conspiracy is quite
enough to hold petitioner equally liable with
the principal accused for the latter's other
acts, even if unknown to him, in paragraph
(a) of the indictment. This contention is a
glaring bent. It is, to my mind, utterly
unacceptable, neither right nor just, to cast
criminal liability on one for the acts or deeds
of plunder that may have been committed
by another or others over which he has not
consented or acceded to, participated in, or
even in fact been aware of. Such vicarious
criminal liability is never to be taken lightly
but must always be made explicit not merely
at the trial but likewise, and no less
important, in the complaint or information
itself in order to meet the fundamental right
of an accused to be fully informed of the
charge against him. It is a requirement that
cannot be dispensed with if he were to be
meaningfully assured that he truly has a right
to defend himself. Indeed, an unwarranted
generalization on the scope of the anti-
plunder law would be a fatal blow to
maintaining its constitutionality given
the ratio decidendi in the pronouncement
heretofore made by the Court upholding the
validity of the statute.
"Given the foregoing exegesis, the
petitioner, although ineffectively charged in
the Amended Information for plunder, could
still be prosecuted and tried for a lesser
offense, for it is a recognized rule that an
accused shall not be discharged even when a
mistake has been made in charging the
proper offense if he may still be held
accountable for any other offense
necessarily included in the crime being
charged. It is, however, the Sandiganbayan,
not this Court, which must make this
determination on the basis of its own
findings."
WHEREFORE, I accept the ponencia in G.R. No.
148468 but, as regards G.R. No. 148769 and G.R. No.
149116, I vote for the remand of the case to the
Sandiganbayan for further proceedings on the bail
application of petitioner and urge that the incident
be resolved with dispatch.
Dissenting Opinion
SANDOVAL-GUTIERREZ, J.,:
Once again, the Amended Information dated April
18, 2001 in Criminal Case No. 265581 is subjected to
judicial scrutiny, this time, via a petition for
certiorari under Rule 65 of the 1997 Rules of Civil
Procedure (G.R. No. 148769) filed by petitioner
Edward S. Serapio. For easy reference, let me quote
the Amended Information, thus:
"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 public officer, being then the
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, an 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 connivance 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 Tan
Or Eleuterio Ramos Tan or Mr. Uy,
and Jane Doe a.k.a Delia Rajas, and
other John Does and Jane Does;
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 stock, 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 Four Hundred Fifty Pesos
(P744,612,450.00], respectively, or a
total of a 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], more or less, from
the Belle Corporation, which became
part of the deposit in the Equitable-
PCI Bank under the account of "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.
CONTRARY TO LAW.'"2
In G.R. No. 148965,3 I stood apart from the majority
of my brethren in denying the Petition for Certiorari
and Mandamus filed by Jose "Jinggoy," E. Estrada
against the Sandiganbayan, People of the
Philippines and Office of the Ombudsman. I
articulated in my Dissent the various reasons why I
could not join the majority in sustaining the afore-
quoted Amended Information. Now, I am taking this
second occasion to reiterate them, hoping that the
majority will have a change of mind and resolve to
re-examine its Decision.
Consistent with my previous Dissent, it is my view
that petitioner Edward S. Serapio, like Jose "Jinggoy"
Estrada, may not be validly prosecuted for the crime
of plunder under the Amended Information.
To be forthright, the obvious error in the foregoing
Information lies in the fact that it joined together
four distinct conspiracies in a single continuing
conspiracy of plunder and indiscriminately accused
all the persons who participated therein of the said
resulting crime. Simply put, the Amended
Information is a mere fusion of separate
conspiracies. It is akin to that of "separate spokes
meeting at a common center, without the rim of the
wheel to enclose the spokes." This is legally
impermissible. Such kind of information places the
accused's primary right to be informed of the nature
and cause of the accusation against him in jeopardy.
I must reiterate what I have pointed out in G.R. No.
148965.
There exists a distinction between separate
conspiracies, where certain parties are common to
all the conspiracies, but with no overall
goal or common purpose; and one overall
continuing conspiracy with various parties joining
and terminating their relationship at different
times.4 Distinct and separate conspiracies do not, in
contemplation of law, become a single conspiracy
merely because one man is a participant and key
figure in all the separate conspiracies.5 The present
case is a perfect example. The fact that former
President Estrada is a common key figure in the
criminal acts recited under paragraphs (a), (b), (c)
and (d) of the Amended Information does not
automatically give rise to a single continuing
conspiracy of plunder, particularly, with respect to
petitioner Serapio whose participation is limited to
paragraph (a). To say otherwise is to impute to
petitioner or to any of the accused the acts and
statements of the others without reference to
whether or not their acts are related to one scheme
or overall plan. It could not have been the intention
of the Legislature, in drafting R.A. No. 7080, to
authorize the prosecution to chain together four
separate and distinct crimes when the only nexus
among them lies in the fact that one man
participated in all. There lies a great danger for the
transference of guilt from one to another across the
line separating conspiracies.
The principle laid down above is no longer novel in
other jurisdictions. Various American decisions had
expounded on the matter. In Battle vs. State,6 a
judgment of conviction was reversed on the ground
that the allegation of conspiracy in the indictment
was insufficient, thus:
"Among the requirements for the allegations
in an indictment to be sufficient are (1) the
specificity test, i.e., does the indictment
contain all the elements of the offense
pleaded in terms sufficient enough to
apprise the accused of what he must be
prepared to meet, and (2) is the indictment
pleaded in such a manner as to enable the
defendant to plead prior jeopardy as a
defense if additional charges are brought for
the same offense. x x x Further, our Supreme
Court has recently considered the criteria for
sufficiency in conspiracy cases in Goldberg
vs. State, 351 So. 2d 332 (Fla. 1977),7 as this
court has likewise done in State vs. Giardino,
363 So. 2d 201 (Fla. 3d DCA 1978).8 Applying
the principles developed in the above cases
to the instant cause, we are of the opinion
that Count I of the indictment was
insufficient. It is impossible to ascertain
whether the indictment charges that
appellant conspired with Acuna and
Hernandez jointly or severally, or whether
appellant conspired entirely with persons
unknown. Also, it is impossible to tell
whether appellant met with Acuna and
Hernandez jointly or severally, or whether
appellant conspired entirely with persons
unknown. Also, it is impossible to tell
whether appellant met with Acuna and
Hernandez jointly or severally, or whether
appellant met with persons unknown to plan
the murder of Torres. Because appellant was
left to guess who these other conspirators
might be and because the vagueness of the
allegations did nothing to protect him from
further prosecution, we are of the opinion
that they were too vague and indefinite to
meet the requirements set forth above.
Accordingly, in our opinion the trial court
erred in failing to dismiss Count I of the
indictment for conspiracy against appellant."
(Footnote supplied)
In State vs. Harkness,9 a demurrer to the
information was sustained on the ground that an
information charging two separate conspiracies is
bad for misjoinder of parties where the only
connection between the two conspiracies was the
fact that one defendant participated in both. The
Supreme Court of Washington ruled:
"[W]e see no ground upon which the counts
against both the Harknesses can be included
in the same information. While they are
charged with crimes of the same class, the
crimes are alleged to have been committed
independently and at different times. The
crimes are related to each other only by the
fact that the prescriptions used were issued
by the same physician. x x x We find
ourselves unable to agree with the appellant
that the misjoinder is cured by the conspiracy
charge. It is doubtful if the count is sufficient
in form to charge a conspiracy. x x x
Reference is made in the count, to counts
one to six, inclusive, for a specification of the
acts constituting the conspiracy. When these
counts are examined, it will be seen that
they charge separate substantive
offenses without alleging any concert of
action between the Harknesses."
Thus, when certain persons unite to perform certain
acts, and some of them unite with others who are
engaged in totally different acts, it is error to join
them in an information.10 Otherwise stated,
defendants charged with two separate conspiracies
having one common participant are not, without
more, properly joined, and similarity of acts alone is
insufficient to indicate that series of acts
exist.11 Joinder may be permitted when the
connection between the alleged offenses and the
parties is the accused's awareness of the identity
and activity of the other alleged
12
participants. There must be a showing of one
overall common goal to which the participants bind
themselves.
Apparently, the factual recitals of the Amended
Information fail to sufficiently allege that petitioner
Serapio deliberately agreed or banded with the rest
of the accused for the purpose of committing
Plunder. There is no averment that he conspired
with them in committing the crimes specified in
paragraphs (b), (c) and (d) of the Amended
Information, such as misappropriation of the
tobacco excise tax share of Ilocos Sur; receipt of
commissions by reason of the purchase of shares of
stock from the Belle Corporation; and acquisition of
unexplained wealth.
To my mind, the Amended Information only makes
out a case of bribery "in toleration or protection of
illegal gambling." While he is being charged for the
"crime of Plunder, defined and penalized under R.A.
No. 7080," his alleged participation therein is limited
to what is specified under paragraph (a) of the
Amended Information.
The essence of the law on plunder lies in the phrase
"combination or series of overt or criminal acts." The
determining factor of R.A. No. 7080, as can be
gleaned from the Record of the Senate, is
the plurality of the overt acts or criminal acts under
a grand scheme or conspiracy to amass ill-gotten
wealth. Thus, even if the amassed wealth equals or
exceeds fifty million pesos, a person cannot be
prosecuted for the crime of plunder if he performs
only a single criminal act.13
It is the majority's position that since there is an
allegation of conspiracy at the inception of the
Amended Information, the criminal acts recited in
paragraphs (b), (c) and (d) pertain to petitioner as
well, the act of one being the act of all. This is an
obvious non sequitur. Even the Amended
Information, on its face, cannot admit such a
construction.
First, it bears noting that the Amended Information
named the co-conspirators of former President
Estrada individually and separately in each of the
four predicate offenses. Paragraph (a) named
petitioner Jose "Jinggoy" Estrada, "Atong" Ang,
Yolanda T. Ricaforte, Edward Serapio, John Does
and Jane Does as co-conspirators in the crime of
bribery. Paragraph (b) named Alma Alfaro, "Atong"
Ang, Eleuterio Ramos Tan, Delia Rajas and other
John Does and Jane Does as co-conspirators in the
crime of malversation of public funds representing a
portion of the tobacco excise tax share allocated to
the Province of Ilocos Sur. Paragraph (c) and (d)
named John Does and Jane Does as co-conspirators
in the purchase of the Belle's shares and in the
acquisition of ill-gotten wealth in the amount of
P3,233,104,173.17 under the account name "Jose
Velarde."
Is it logical to infer from the Amended Information
the existence of a single continuing conspiracy of
plunder when the factual recital thereof individually
and separately named the co-conspirators in each of
the predicate offenses? I must reecho my answer in
G.R. No. 148965, i.e., an outright no. A single
agreement to commit several crimes constitutes
one conspiracy. By the same reasoning, multiple
agreements to commit separate crimes constitute
multiple conspiracies. To individually and separately
name the co-conspirators in each of the predicate
offenses is to reveal the absence of a common
design. The explicit clustering of co-conspirators for
each predicate offense thwarts the majority's
theory of a single continuing conspiracy of
plunder. It reveals a clear line segregating each
predicate offense from the other. Thus, the act of
one cannot be considered as the act of all.
Second, the allegation of conspiracy at the inception
of the Amended Information basically pertains to
former President Estrada as the common key figure
in the four predicate offenses. Allow me to quote
the pertinent portion, thus:
"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
public officer, being then the 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: x x
x."
From the foregoing allegation, it can be reasonably
construed that former President Estrada conspired
with all the accused in committing the four
predicate offenses. However, whether his co-
accused conspired with
him jointly or individually for the commission of all,
or some or one of the predicate offenses is a
question that may be answered only after a reading
of the entire Amended Information. I note with
particularity the phrase in the Amended Information
stating, "by himself and/or14 in
connivance/conspiracy with his co-accused." The
phrase indicates that former President Estrada did
not, in all instances, act in connivance with the other
accused. At times, he acted alone. Consequently, as
alleged in the succeeding paragraphs (a), (b), (c) and
(d), his co-accused conspired with him individually
and not jointly. Petitioner Serapio cannot therefore
be associated with the former President in all the
latter's alleged criminal activities.
Of course, I cannot ignore the use of the phrase "on
several instances" and "aggregate amount of
P545,000,000.00" in paragraph (a) of the Amended
Information. At first glance, this may be construed
as attributing to petitioner Serapio a "combination
or series of overt act." However, a reading of the
Amended Information, in its entirety, readily reveals
that the said phrases pertain to former President
Estrada, the principal accused in the case. Allegedly,
the former President, on several instances, received
or collected an aggregate amount of
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
connivance with co-accused Charlie "Atong" Ang,
Jose "Jinggoy" Estrada, Yolanda T.
Ricaforte, petitioner Serapio and John Does and
Jane Does. We have already explained the
implication of the phrase "by himself and/or in
connivance." Consequently, the acts committed by
former President Estrada on the several instances
referred to cannot automatically be attributed to
petitioner.
Third, petitioner's criminal intent to advance the
unlawful object of the conspiracy (plunder) is not
sufficiently alleged in the factual recitals of the
Amended Information. Corollarily, the intent
required is the intent to advance or further the
unlawful object of the conspiracy.15 This means that
so far as the relevant circumstances are concerned,
both parties to the agreement must have mens
rea.16 There is no conspiracy to commit a particular
crime unless the parties to the agreement intend
that the consequences, which are ingredients of
that crime, shall be caused.17 In the present case,
while there is an allegation that former President
Estrada "willfully, unlawfully and
18
criminally" amassed ill-gotten wealth in the
aggregate amount of P4,097,804,173.17, none is
mentioned with regard to petitioner. There is
nothing in the Amended Information that suggests
whether or not petitioner has the mens rea to
engage in the commission of the serious crime of
plunder. Indeed, there are no allegations that he
"willfully, unlawfully or criminally" joined with the
rest of the accused to amass ill-gotten wealth. This
renders the Amended Information fatally defective
with respect to petitioner. Every crime is made up of
certain acts and intent: these must be set forth in
the complaint with reasonable
particularity.19 Imperatively, an information
charging that a defendant conspired to commit an
offense must allege that the defendant agreed with
one or more persons to commit the offense.20
And fourth, the statement in the accusatory portion
of the Amended Information cumulatively charging
all the accused of the crime of Plunder cannot be
given much weight in determining the nature of the
offense charged. It is a jurisprudentially-embedded
rule that what determines the "nature and cause of
accusation" against an accused is the crime
described by the facts stated in the information or
complaint and not that designated by the fiscal in
the preamble thereof.21 In the recent En Banc ruling
in Lacson vs. Executive Secretary,22 citing the 1954
case of People vs. Cosare23 and People vs.
Mendoza,24 this Court held:
"The factor that characterizes the charge is
the actual recital of the facts. The real nature
of the criminal charge is determined not
from the caption or preamble of the
information nor from the specification of the
provision of law alleged to have been
violated, they being conclusions of law, but
by the actual recital of factsin the complaint
or information."25
Thus, in the event that the appellation of the crime
charged, as determined by the public prosecutor,
does not exactly correspond to the actual crime
constituted by the criminal acts described in the
information to have been committed by the
accused, what controls is the description of the said
criminal acts and not the technical name of the
crime supplied by the public prosecutor.26
There is a caveat that an information under the
broad language of a general conspiracy statute must
be scrutinized carefully as to each of the charged
defendants because of the possibility, inherent in a
criminal conspiracy charge, that its wide net may
ensnare the innocent as well as the culpable.27
Let it be stressed that guilt should remain individual
and personal, even as respect conspiracies. It is not
a matter of mass application. There are times when
of necessity, because of the nature and scope of a
particular federation, large numbers of persons
taking part must be tried by their conduct. The
proceeding calls for the use of every safeguard to
individualize each accused in relation to the mass.
Criminal they may be, but it is not the criminality of
mass conspiracy. They do not invite mass trial by
their conduct. True, this may be inconvenient for
the prosecution. But the government is not one of
mere convenience or efficiency. It too has a stake
with every citizen, in his being afforded the
individual protections, including those surrounding
criminal trials.28 The shot-gun approach of a
conspiracy charge could amount to a prosecution
for general criminality resulting in a finding of guilt
by association. The courts should, at all times, guard
against this possibility so that the constitutional
rights of an individual are not curbed or clouded by
the web of circumstances involved in a conspiracy
charge.29
Corollarily, petitioner prays in G.R. No. 148468 for
this Court to issue a writ of habeas corpus. The
Amended Information being fatally defective, it is
imperative that petitioner be dropped from the
Amended Information and proceeded against under
a new one charging the proper offense. In the
absence of a standing case against him, the issuance
of a writ of habeas corpus is in order."30
WHEREFORE, I vote to GRANT the petitions in G.R.
No. 148769 and G.R. No. 148468.
1 Rollo, G.R. No. 148468, pp. 49–51.
2 Rollo, G.R. No. 149116, p.16.
3 Ibid., pp. 18, 249–281.
4 Ibid., pp. 16–17.
5 Rollo, G.R. No. 146468, p. 54.
6 Ibid., pp. 61–66.
7 Rollo, G.R. No. 149116, p. 412.
8 Rollo, G.R. No. 148468, p. 112.
9 Ibid., p. 114.
10 Ibid., pp. 147–164.
11 Ibid., pp. 43–44.
12 Rollo, G.R. No. 148769, pp. 165–197.
13 Rollo, pp. 17–18.
14 Rollo, p. 46.
15 Supra.
16 Jose "Jinggoy "Estrada vs. Sandiganbayan (Third
Division), et al., G.R. No. 148965, February 26, 2002.
17 Luz Balitaan vs. Court of First Instance, et al., 115
SC RA 729 (1982).
18 People vs. Ronnie Quitlong, et al., 292 SCRA 360
(1998).
19 G.R. No. 148965, February 26, 2002.
20 Supra, p. 14. 61 Ibid., p. 215.
21 Luz Balitaan vs. Court of First Instance of 62 Ibid., p. 216.
Batangas, supra. 63 Salonga vs. Cruz Paño, 134 SCRA 438, 463 (1985).
22 See note 19. 64 Mendoza vs. CFI of Quezon, 51 SCRA 369 (1973).
23 People vs. Rodolfo Hilario, et al., 354 SCRA 534 65 324 SCRA 321 (2000).

(2001). 66 Id., p. 330.

24 Territory vs. Goto, 27 Hawaii 65 (1923). 67 Herras Teehankee vs. Rovira, 75 Phil. 364 (1945).
25 Rollo, pp. 194–195. 68 Lavides vs. Court of Appeals, supra.
26 Rollo, p. 21. 69 Rollo, G.R. No. 148468, pp. 37–38.
27 Rollo, G.R. No. 149116, p. 21. 70 Ibid., p. 374.
28 Ibid., p. 25. 71 Rule 114, Sec. 1, Revised Rules of Criminal
29 Ibid., pp. 26–27. Procedure.
30 Ibid., p. 30. 72 Almeda vs. Villaluz, 66 SCRA 38 (1975).
31 Ibid., pp. 30–33. 73 Mendoza vs. CFI of Quezon, 51 SCRA 369 ( 1973).
32 Ibid., pp. 33–36. 74 Smith v. State, 78 S 530.
33 Ibid., p. 36. 75 Rule 117, Section 1, Revised Rules of Criminal
34 Ibid., p. 39. Procedure.
35 Ibid., pp. 43–44. 76 Rollo, G.R. No. 148468, p. 373.
36 Ibid., pp. 295–298. 77 Ibid., pp. 220–225.
37 Ibid., p. 298. 78 Ibid., pp. 112–113.
38 Ibid., p. 301. 79 Kotteakos vs. United States, 90 L.Ed. 1564 (1946).
39 Ibid., p. 472. 80 77 Phil. 55 (1946).
40 Ibid., pp. 473–480. 81 Vide Note 16.
41 Ibid., pp. 480–492. 82 Ibid., pp. 643–644.
42 335 SCRA 581 (2000). 83 Rollo, G.R. No. 148468, p. 112.
43 233 SCRA 439 (1994). 84 Ibid., p. 68.
44 Rollo, G.R. No. 148468, p. 59. 85 Ibid., 233–242.
45 Ibid., pp. 408–409. 86 Ibid., p.188.
46 Rollo, G.R. No. 149116, pp. 412–413. 87 Ibid., p. 210.
47 Rolito Go vs. Court of Appeals, 206 SCRA 138 88 Ibid., p. 211, [emphasis by respondents].

(1992). 89 Ibid., p. 211, [emphasis by respondents].

48 People vs. Madraga, 344 SCRA 628 90 People vs. Gako, Jr., 348 SCRA 334
(2000); Sanchez vs. Demetriou, 227 SCRA 627 (2000); Goodman vs. De La Victoria, 325 SCRA 658
(1993). (2000).
49 Rule 112, Sec. 1, Revised Rules of Criminal 91 Supra.

Procedure; Webb vs. De Leon, 247 SCRA 652 (1995). 92 Narciso vs. Sta. Romana-Cruz, 328 SCRA 505
50 Supra, pp. 675–676. (2000); Tolentino vs. Camano, 322 SCRA 559 (2000).
51 Metropolitan Bank & Trust Co. vs. Tonda, 338 93 People vs. Nano, 205 SCRA 155 (1992); Herras

SCRA 254 (2000); Raro vs. Sandiganbayan, 335 SCRA Teehankee v. Director of Prisons, 76 Phil. 756 (1946).
581 (2000). 94 Padilla vs. Court of Appeals, 260 SCRA 155 (1996).
52 Crespo vs. Mogul, 151 SCRA 462 (1987). 95 Rollo, G.R. No. 148468, pp. 240–241.
53 206 SCRA 138 (1992). 96 Ibid., pp. 70–74.
54 Vide Note 4. 97 Ibid., pp. 75-82.
55 Rollo, G.R. No. 148468, p. 366. 98 Ibid., pp. 97–100.
56 Ibid., pp. 366–367. 99 Ibid., pp. 115–116.
57 Ibid., p. 367. 100 Ibid., pp. 233–239.
58 Ibid., p. 368. 101 Narciso vs. Sta. Romana-Cruz, supra; SCRA 284
59 Ibid., p. 369. (1995).
60 Ibid., pp. 212–215. 102 269 SCRA 220 (1997).
103 Id., p. 513, (emphasis supplied).
104 Rollo, G.R. No. 148468, pp. 31–36.
105 Ibid., pp. 38–39.
106 Ibid., pp. 392-393.
107 141 SCRA 233 (1986).
108 Rollo, G.R. No. 148468, p. 396.
109 Ibid., pp. 246–247.
110 Ibid., pp. 245–251.
111 Paredes vs. Sandiganbayan, 193 SCRA 464
(1991); Luna vs. Plaza, 26 SCRA 310 (1969).
112 Gumabon vs. Director of Prisons, 37 SCRA 420
(1971); citing Harris v. Nelson, 22 L Ed 2d 281.
113 Gumabon vs. Director of Prisons, supra.
114 Moncupa vs. Enrile, 141 SCRA 233 (1986); Caunca
vs. Salazar, 85 Phil. 81 (1949); Villavicencio vs.
Lukban, 39 Phil. 778.
115 Paredes vs. Sandiganbayan, supra; Luna vs.
Plaza, supra.
116 Supra.
117 Galvez vs. Court of Appeals, 237 SCRA 685
(1994); Enrile vs. Salazar, 186 SCRA 217 (1990).
118 Herras Teehankee vs. Director of Prisons, 76 Phil.
756 (1946).
Vitug, J.
1 Black's Law Dictionary.
2 G.R. No. 148560.
3 Section 1(d)
"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 of position
of the public officer concerned;
"3) By the illegal or fraudulent conveyance of
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
"6) By taking undue 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."
4 Supra, p. 15.
Sandoval-Gutierrez, J.
1 Entitled "People of the Philippines, Plaintiff-
versus-Joseph Ejercito Estrada a.k.a. "Asiong
Salonga" and a.k.a. "Jose Velarde" Former President
of the Philippines, 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, John Does and Jane Does, Accused"; For
Plunder.
2 Annex "C," Petition, Rollo, pp. 46–49.
3 Entitled "Jose "Jinggoy" E. Estrada, petitioner, -
versus- Sandiganbayan (Third Division), People of
the Philippines and Office of the Ombudsman,
respondents."
4 16 Am Jur 2d § 11, p. 209.
5 Id.
6 365 So. 2d 1035 (1979).
7 1) The indictment involved in the present case is
clearly deficient under the criteria set forth by
this Court in State vs. Smith, 240 So. 2d 807 (Fla.
1970): "An indictment or information for conspiracy
must contain a statement of the facts relied on as
constituting the offense in ordinary and concise
language, with as much certainty as the nature of
the case will admit, in such a manner as to 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 separate
indictment or information based on the same facts."
Some of the more patent flaws found in the
present indictment are as follows:
 1) It is impossible to tell whether it charges
that all four appellants jointly conspired with
"Rothstein . . . or MacLean, or both," or
whether there were two conspiracies, one
between some of the appellants and
Rothstein, and the other between the
remaining appellants and MacLean;
xxx xxx xxx
The prejudice to appellants resulting from
the defective conspiracy count is itself
sufficient to mandate a new trial on the
remaining charges. However, the record
before us is replete with errors, several of
which individually and all of which
cumulatively would warrant reversal. . . . ."
8 Indictment which charged defendant with
conspiracy to commit a felony which failed to state
with whom defendant had allegedly conspired,
failed to state unlawful object of charged
conspiracy, and failed to state nature of charged
conspiracy under law since it did not sufficiently
inform defendant of charges against him.
9 82 P. 2d 541.
10 Wilson vs. United States, 190 Federal Reporter
427 (1911).
11 United States vs. Welch, 656 F 2d 1039 (1981).
12 41 Am Jur 2d § 202.
13 "Senator Paterno Mr. President, not too clear yet
on the reason for trying to define a crime of plunder.
Could I get some further clarification?
Senator Tañada Yes, Mr. President.
Because of our experience in the former
regime, we feel that there is a need for
Congress to pass the legislation which would
cover a crime of this magnitude. While it is
true, we already have the Anti-Graft Law.
But that does not directly deal with plunder.
That covers only the corrupt practices of
public officials as well as their spouses and
relatives within the civil degree, and the
Anti-Graft law as presently worded would
not adequately or sufficiently address the
problems that we experienced during the
past regime.
Senator Paterno May I try to give the
Gentleman, Mr. President, my
understanding of the bill?
Senator Tañada Yes.
Senator Paterno I envision that this bill or
this kind of plunder would cover a
discovered interconnection of certain acts,
particularly, violations of Anti-Graft and
Corrupt Practices Act when, after the
different acts are looked at, a scheme of
conspiracy can be detected, such scheme or
conspiracy consummated by the different
criminal acts or violations of Anti-Graft and
Corrupt Practices Act, such that the scheme
or conspiracy becomes a sin, as a large
scheme to defraud the public or rob the
public treasury. It is parang robo and banda.
It is considered as that. And, the bill seeks to
define or says that P100 million is that level
at which ay talagang sobra na dapat nang
parusahan ng husto. Would it be a correct
interpretation or assessment of the intent of
the bill?
Senator Tañada Yes, Mr. President. The fact
that under existing law, there can be only
one offense charged in the information, that
makes it very cumbersome and difficult to go
after these grafters if we would not come
out with this bill. That is what is happening
now; because of that rule that there can be
only one offense charged per information,
then we are having difficulty in charging all
the public officials who would seem to have
committed these corrupt practices. With this
bill, we could come out with just one
information, and that would cover all the
series of criminal acts that may have been
committed by him.
xxx xxx xxx
Senator Romulo To follow up the
interpolations of Senator Paterno and
Maceda, this crime of plunder as envisioned
here contemplates of a series or a scheme as
responded by the distinguished Sponsor.
Senator Tañada That is correct, Mr.
President. (Record of Senate, June 5, 1989,
Vol. IV, No. I-40, p. 1315)
xxx xxx xxx
Senator Romulo Mr. President, I was going
to suggest prior to Senator Maceda that on
line 24: "SHALL THROUGH ONE overt or
criminal act OR. . . ." I was just thinking of one
which is really not a "series."
 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.
(Record of the Senate, June 6, 1989, Vol. IV,
No. 141, p. 1399).
14 The use of "or" —a function word to indicate an

alternative between different or unlike things, state,

or actions negates absolute commonality of design
among the former President and all his co-accused.
Webster Third New International Dictionary, 1993,
p. 1585.
15 Establishing the intent necessary to sustain a

conviction for conspiracy requires showing not only

that the conspirators intended to agree but also that
they intended to commit the elements of the
underlying offense.
16 In Estrada vs. Sandiganbayan, G.R. No. 148560,

November 19, 2001, Justice Josue N. Bellosillo

quoting from the Concurring Opinion of Justice
Vicente V. Mendoza, held that "[p]lunder is a malum
in se, requiring criminal intent. 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 was committed
"wilfully, unlawfully and criminally." It thus allege
guilty knowledge on the part of petitioner (Joseph
Ejercito Estrada).
17 Smith, Hogan, Criminal Law, Sixth Edition, 1988, p.

264.
18 This signifies the allegation of mens rea.
19 Pecho vs. People, 262 SCRA 518 (1996).
20 16 Am Jur 2d § 33.
21 United States vs. Lim San, 17 Phil. 273

(1910); United States vs. de Guzman, 19 Phil. 350

(1911).
22 301 SCRA 298 (1999).
23 95 Phil. 657, 660 (1954).
24 175 SCRA 743 (1989).
25 Lacson vs. Executive Secretary, 301 SCRA 298

(1999).
26 Buhat vs. Court of Appeals, 265 SCRA 701 (1996).
27 16 Am Jur 2d § 32, p. 245. Dennis v. U.S., 384 U.S.

855, 86 Ct. 1840, 16 L Ed. 2d 973 (1966).

28 Kotteakos vs. U.S., 328 U.S. 750 (1946).
29 Goldberg vs. State, supra.
30 Aleria, Jr. vs. Velez, 298 SCRA 611 (1998).
 G.R. No. L-62100 May 30, 1986
RICARDO L. MANOTOC, JR., petitioner,
vs.
THE COURT OF APPEALS, HONS. SERAFIN E.
CAMILON and RICARDO L. PRONOVE, JR., as
Judges of the Court of First Instance of Rizal, Pasig
branches, THE PEOPLE OF THE PHILIPPINES, the
SECURITIES & EXCHANGE COMISSION, HON.
EDMUNDO M. REYES, as Commissioner of
Immigration, and the Chief of the Aviation
Security Command (AVSECOM), respondents.
FERNAN, J.:
The issue posed for resolution in this petition for
review may be stated thus: Does a person facing a
criminal indictment and provisionally released on
bail have an unrestricted right to travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two
principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc.,
a stock brokerage house. Having transferred the
management of the latter into the hands of
professional men, he holds no officer-position in
said business, but acts as president of the former
corporation.
Following the "run" on stock brokerages caused by
stock broker Santamaria's flight from this
jurisdiction, petitioner, who was then in the United
States, came home, and together with his co-
stockholders, filed a petition with the Securities and
Exchange Commission for the appointment of a
management committee, not only for Manotoc
Securities, Inc., but likewise for Trans-Insular
Management, Inc. The petition relative to the
Manotoc Securities, Inc., docketed as SEC Case No.
001826, entitled, "In the Matter of the Appointment
of a Management Committee for Manotoc
Securities, Inc., Teodoro Kalaw, Jr., Ricardo
Manotoc, Jr., Petitioners", was granted and a
management committee was organized and
appointed.
Pending disposition of SEC Case No. 001826, the
Securities and Exchange Commission requested the
then Commissioner of Immigration, Edmundo
Reyes, not to clear petitioner for departure and a
memorandum to this effect was issued by the
Commissioner on February 4, 1980 to the Chief of
the Immigration Regulation Division.
When a Torrens title submitted to and accepted by
Manotoc Securities, Inc. was suspected to be a fake,
six of its clients filed six separate criminal complaints
against petitioner and one Raul Leveriza, Jr., as
president and vice-president, respectively, of
Manotoc Securities, Inc. In due course,
corresponding criminal charges for estafa were filed
by the investigating fiscal before the then Court of
First Instance of Rizal, docketed as Criminal Cases
Nos. 45399 and 45400, assigned to respondent
Judge Camilon, and Criminal Cases Nos. 45542 to
45545, raffled off to Judge Pronove. In all cases,
petitioner has been admitted to bail in the total
amount of P105,000.00, with FGU Instance
Corporation as surety.
On March 1, 1982, petitioner filed before each of
the trial courts a motion entitled, "motion for
permission to leave the country," stating as ground
therefor his desire to go to the United States,
"relative to his business transactions and
opportunities."1 The prosecution opposed said
motion and after due hearing, both trial judges
denied the same. The order of Judge Camilon dated
March 9, 1982, reads:
Accused Ricardo Manotoc Jr. desires
to leave for the United States on the
all embracing ground that his trip is
... relative to his business
transactions and opportunities.
The Court sees no urgency from this
statement. No matter of any
magnitude is discerned to warrant
judicial imprimatur on the proposed
trip.
In view thereof, permission to leave
the country is denied Ricardo
Manotoc, Jr. now or in the future
until these two (2) cases are
terminated .2
On the other hand, the order of Judge Pronove
dated March 26, 1982, reads in part:
6.-Finally, there is also merit in the
prosecution's contention that if the
Court would allow the accused to
leave the Philippines the surety
companies that filed the bail bonds in
his behalf might claim that they could
no longer be held liable in their
undertakings because it was the
Court which allowed the accused to
go outside the territorial jurisdiction
of the Philippine Court, should the
accused fail or decide not to return.
WHEREFORE, the motion of the
accused is DENIED. 3
It appears that petitioner likewise wrote the
Immigration Commissioner a letter requesting the
recall or withdrawal of the latter's memorandum
dated February 4, 1980, but said request was also
denied in a letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and
mandamus before the then Court of
Appeals 4 seeking to annul the orders dated March
9 and 26, 1982, of Judges Camilon and Pronove,
respectively, as well as the communication-request
of the Securities and Exchange Commission, denying
his leave to travel abroad. He likewise prayed for the
issuance of the appropriate writ commanding the
Immigration Commissioner and the Chief of the
Aviation Security Command (AVSECOM) to clear him
for departure.
On October 5, 1982, the appellate court rendered a
decision 5 dismissing the petition for lack of merit.
Dissatisfied with the appellate court's ruling,
petitioner filed the instant petition for review on
certiorari. Pending resolution of the petition to
which we gave due course on April 14,
1983 6 petitioner filed on August 15, 1984 a motion
for leave to go abroad pendente lite.7 In his motion,
petitioner stated that his presence in Louisiana,
U.S.A. is needed in connection "with the obtention
of foreign investment in Manotoc Securities,
Inc."8 He attached the letter dated August 9, 1984 of
the chief executive officer of the Exploration
Company of Louisiana, Inc., Mr. Marsden W.
Miller9 requesting his presence in the United States
to "meet the people and companies who would be
involved in its investments." Petitioner, likewise
manifested that on August 1, 1984, Criminal Cases
Nos. 4933 to 4936 of the Regional Trial Court of
Makati (formerly Nos. 45542-45545) had been
dismissed as to him "on motion of the prosecution
on the ground that after verification of the records
of the Securities and Exchange Commission ... (he)
was not in any way connected with the Manotoc
Securities, Inc. as of the date of the commission of
the offenses imputed to him." 10 Criminal Cases Nos.
45399 and 45400 of the Regional Trial Court of
Makati, however, remained pending as Judge
Camilon, when notified of the dismissal of the other
cases against petitioner, instead of dismissing the
cases before him, ordered merely the informations
amended so as to delete the allegation that
petitioner was president and to substitute that he
was "controlling/majority stockholder,'' 11 of
Manotoc Securities, Inc. On September 20, 1984,
the Court in a resolution en banc denied petitioner's
motion for leave to go abroad pendente lite. 12
Petitioner contends that having been admitted to
bail as a matter of right, neither the courts which
granted him bail nor the Securities and Exchange
Commission which has no jurisdiction over his
liberty, could prevent him from exercising his
constitutional right to travel.
Petitioner's contention is untenable.
A court has the power to prohibit a person admitted
to bail from leaving the Philippines. This is a
necessary consequence of the nature and function
of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail
as the security required and given for the release of
a person who is in the custody of the law, that he
will appear before any court in which his
appearance may be required as stipulated in the bail
bond or recognizance.
 Its object is to relieve the accused of
imprisonment and the state of the
burden of keeping him, pending the
trial, and at the same time, to put the
accused as much under the power of
the court as if he were in custody of
the proper officer, and to secure the
appearance of the accused so as to
answer the call of the court and do
what the law may require of him. 13
The condition imposed upon petitioner to make
himself available at all times whenever the court
requires his presence operates as a valid restriction
on his right to travel. As we have held in People vs.
Uy Tuising, 61 Phil. 404 (1935).
... the result of the obligation
assumed by appellee (surety) to hold
the accused amenable at all times to
the orders and processes of the
lower court, was to prohibit said
accused from leaving the jurisdiction
of the Philippines, because,
otherwise, said orders and processes
will be nugatory, and inasmuch as
the jurisdiction of the courts from
which they issued does not extend
beyond that of the Philippines they
would have no binding force outside
of said jurisdiction.
Indeed, if the accused were allowed to leave the
Philippines without sufficient reason, he may be
placed beyond the reach of the courts.
The effect of a recognizance or bail
bond, when fully executed or filed of
record, and the prisoner released
thereunder, is to transfer the custody
of the accused from the public
officials who have him in their charge
to keepers of his own selection. Such
custody has been regarded merely as
a continuation of the original
imprisonment. The sureties become
invested with full authority over the
person of the principal and have the
right to prevent the principal from
leaving the state.14
If the sureties have the right to prevent the principal
from leaving the state, more so then has the court
from which the sureties merely derive such right,
and whose jurisdiction over the person of the
principal remains unaffected despite the grant of
bail to the latter. In fact, this inherent right of the
court is recognized by petitioner himself,
notwithstanding his allegation that he is at total
liberty to leave the country, for he would not have
filed the motion for permission to leave the country
in the first place, if it were otherwise.
To support his contention, petitioner places reliance
upon the then Court of Appeals' ruling in People vs.
Shepherd (C.A.-G.R. No. 23505-R, February 13,
1980) particularly citing the following passage:
... The law obliges the bondsmen to
produce the person of the appellants
at the pleasure of the Court. ... The
law does not limit such undertaking
of the bondsmen as demandable
only when the appellants are in the
territorial confines of the Philippines
and not demandable if the appellants
are out of the country. Liberty, the
most important consequence of bail,
albeit provisional, is indivisible. If
granted at all, liberty operates as
fully within as without the
boundaries of the granting state. This
principle perhaps accounts for the
absence of any law or jurisprudence
expressly declaring that liberty under
bail does not transcend the territorial
boundaries of the country.
The faith reposed by petitioner on the above-
quoted opinion of the appellate court is misplaced.
The rather broad and generalized statement suffers
from a serious fallacy; for while there is, indeed,
neither law nor jurisprudence expressly declaring
that liberty under bail does not transcend the
territorial boundaries of the country, it is not for the
reason suggested by the appellate court.
Also, petitioner's case is not on all fours with the
Shepherd case. In the latter case, the accused was
able to show the urgent necessity for her travel
abroad, the duration thereof and the conforme of
her sureties to the proposed travel thereby
satisfying the court that she would comply with the
conditions of her bail bond. in contrast, petitioner in
this case has not satisfactorily shown any of the
above. As aptly observed by the Solicitor General in
his comment:
A perusal of petitioner's 'Motion for
Permission to Leave the Country' will
show that it is solely predicated on
petitioner's wish to travel to the
United States where he will, allegedly
attend to some business transactions
and search for business
opportunities. From the tenor and
import of petitioner's motion, no
urgent or compelling reason can be
discerned to justify the grant of
judicial imprimatur thereto.
Petitioner has not sufficiently shown
that there is absolute necessity for
him to travel abroad. Petitioner's
motion bears no indication that the
alleged business transactions could
not be undertaken by any other
person in his behalf. Neither is there
any hint that petitioner's absence
from the United States would
absolutely preclude him from taking
advantage of business opportunities
therein, nor is there any showing that
petitioner's non-presence in the
United States would cause him
irreparable damage or prejudice. 15
Petitioner has not specified the duration of the
proposed travel or shown that his surety has agreed
to it. Petitioner merely alleges that his surety has
agreed to his plans as he had posted cash
indemnities. The court cannot allow the accused to
leave the country without the assent of the surety
because in accepting a bail bond or recognizance,
the government impliedly agrees "that it will not
take any proceedings with the principal that will
increase the risks of the sureties or affect their
remedies against him. Under this rule, the surety on
a bail bond or recognizance may be discharged by a
stipulation inconsistent with the conditions thereof,
which is made without his assent. This result has
been reached as to a stipulation or agreement to
postpone the trial until after the final disposition of
other cases, or to permit the principal to leave the
state or country." 16 Thus, although the order of
March 26, 1982 issued by Judge Pronove has been
rendered moot and academic by the dismissal as to
petitioner of the criminal cases pending before said
judge, We see the rationale behind said order.
As petitioner has failed to satisfy the trial courts and
the appellate court of the urgency of his travel, the
duration thereof, as well as the consent of his surety
to the proposed travel, We find no abuse of judicial
discretion in their having denied petitioner's motion
for permission to leave the country, in much the
same way, albeit with contrary results, that We
found no reversible error to have been committed
by the appellate court in allowing Shepherd to leave
the country after it had satisfied itself that she
would comply with the conditions of her bail bond.
The constitutional right to travel being invoked by
petitioner is not an absolute right. Section 5, Article
IV of the 1973 Constitution states:
The liberty of abode and of travel
shall not be impaired except upon
lawful order of the court, or when
necessary in the interest of national
security, public safety or public
health.
To our mind, the order of the trial court releasing
petitioner on bail constitutes such lawful order as
contemplated by the above-quoted constitutional
provision.
Finding the decision of the appellate court to be in
accordance with law and jurisprudence, the Court
finds that no gainful purpose will be served in
discussing the other issues raised by petitioner.
WHEREFORE, the petition for review is hereby
dismissed, with costs against petitioner.
SO ORDERED.

Teehankee, C.J., Abad Santos, Yap, Narvasa,

Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and
Paras, JJ., concur.

Feria, J., took no part.

1 Annex "D", Petition, p. 44, Rollo.

2 Ibid, p. 44, Rollo.
3 Ibid, p. 44, Rollo.
4 Annex "A Petition, p. 17, Rollo
5 Annex "D", Petition, p. 42, Rollo.
6 p. 87, Rollo.
7 p. 117, Rollo.
8 p. 120, Rollo.
9 Annex "BB", Motion for Leave p. 124, Rollo.
10 p. 117, Rollo.
11 p. 121, Rollo.
12 p. 129, Rollo.
13 6 Am. Jur. [Rev. Ed.], Bailment, S6
14 6 Am. Jur. [Rev. Ed.], Bailments, $100,
15 Comment, pp. 69-70, Rollo.
16 6 Am. Jur. 125.
 A.M. No. 99-8-126-MTC. September 22, 1999
ISSUANCE OF HOLD DEPARTURE ORDER OF JUDGE
LUISITO T. ADAOAG, MTC, Camiling, Tarlac.
DECISION
MENDOZA, J.:
This refers to the indorsement, dated March 31,
1999, of the Secretary of Justice concerning a "hold-
departure" order issued on January 29, 1999 by
Judge Luisito T. Adaoag, Municipal Trial Court,
Camiling, Tarlac, in Criminal Case Nos. 98-131 and
98-132, entitled "People of the Philippines v. Nestor
Umagat y Campos." The Secretary of Justice calls
attention to the fact that the order in question is
contrary to Circular No. 39-97, dated June 19, 1997,
of this Court.
Indeed, the said circular limits the authority to issue
hold departure orders to the Regional Trial Courts in
criminal cases within their exclusive jurisdiction. It
provides the following guidelines on the issuance of
hold departure orders:
In order to avoid the indiscriminate issuance of
Hold-Departure Orders resulting in inconvenience
to the parties affected, the same being tantamount
to an infringement on the right and liberty of an
individual to travel and to ensure that the Hold-
Departure Orders which are issued contain
complete and accurate information, the following
guidelines are hereby promulgated:
1. Hold-Departure Orders shall be issued only in
criminal cases within the exclusive jurisdiction of the
Regional Trial Courts;
2. The Regional Trial Courts issuing the Hold-
Departure Order shall furnish the Department of
Foreign Affairs (DFA) and the Bureau of Immigration
(BI) of the Department of Justice with a copy each of
the Hold-Departure Order issued within twenty-four
(24) hours from the time of issuance and through
the fastest available means of transmittal;
3. The Hold-Departure Order shall contain the
following information:
a. The complete name (including the middle name),
the date and place of birth and the place of last
residence of the person against whom a Hold-
Departure Order has been issued or whose
departure from the country has been enjoined;
b. The complete title and the docket number of the
case in which the Hold-Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold-Departure Order.
If available, a recent photograph of the person
against whom a Hold-Departure Order has been
issued or whose departure from the country has
been enjoined should also be included.
4. Whenever (a) the accused has been acquitted; (b)
the case has been dismissed, the judgment of
acquittal or the order of dismissal shall include
therein the cancellation of the Hold-Departure
Order issued. The courts concerned shall furnish the
Department of Foreign Affairs and the Bureau of
Immigration with a copy each of the judgment of
acquittal promulgated or the order of dismissal
twenty-four (24) hours from the time of
promulgation/issuance and through the fastest
available means of transmittal.
All Regional Trial Courts which have furnished the
Department of Foreign Affairs with their respective
lists of active Hold-Departure Orders are hereby
directed to conduct an inventory of the Hold-
Departure Orders included in the said lists and
inform the government agencies concerned of the
status of the Orders involved.
In his comment, Judge Adaoag admits his mistake
and pleads ignorance of the circular. He explains:
1. The order of the court dated January 29, 1999 is a
mere request from the Commission on Immigration
to issue a Hold Departure Order;
2. The questioned order was issued in two criminal
cases within the Jurisdiction of the Court and was
issued with malice towards none and in the interest
of the state upon motion of the Department of
Justice thru its Assistant Prosecutor Venancio
Ovejera, Office of the Provincial Prosecutor, Tarlac,
Tarlac;
3. The court was misled into believing that the court
could issue an order requesting the Bureau of
Immigration for a Hold Departure Order because the
motion for the issuance of a hold departure order
was filed and prayed for by the Office of the
Provincial Prosecutor at Tarlac, Tarlac;
4. The court has no copy of Circular No. 39-97 and
upon research, it found out for the first time that
Hold Departure Orders shall be issued only in
criminal cases within the exclusive Jurisdiction of
the Regional Trial Courts.
How about criminal cases within the exclusive
Jurisdiction of first level courts?
Rest assured that from this moment and thereafter,
the court will no longer issue such order.
The Code of Judicial Conduct 1 enjoins judges to be
"faithful to the law and maintain professional
competence." They can live up to their duties only
by diligent effort to keep themselves abreast of
developments in our legal system. The process of
learning the law is a never ending and ceaseless one.
In two recent cases 2 involving similar violations,
this Court imposed the penalty of reprimand on the
offending judges. Hence, the same penalty should
be imposed on Judge Adaoag.
WHEREFORE, Judge Luisito T. Adaoag is hereby
REPRIMANDED with the WARNING that a repetition
of the same or similar act will be dealt with more
severely.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug,
Kapunan, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes and Ynares-
Santiago, JJ., concur.

1. Canon 3, Rule 3.01.

2. Re: Hold Departure Order dated April 13, 1998

issued by Judge Juan C. Nartatez, Municipal Trial
Court, Branch 3, Davao City, A.M. No. 98-10-141-
MTCC, Nov. 18, 1998; Hold Departure Order issued
by Judge Eusebio M. Barot, MCTC, Branch 2, Aparri,
Calayan, Cagayan, A.M. No. 99-8-108-MCTC, Aug.
25, 1999.
 G.R. Nos. 101127-31 August 7, 1992 free on his original
bail pending the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, resolution of his
vs. appeal, unless the
CRESENCIA C. REYES, accused-appellant. proper court directs
otherwise pursuant to
REGALADO, J.: Rule 114, Sec. 2(a) of
the Rules of Court, as
In its resolution of May 13, 1992, the First Division amended;
of this Court referred en consulta to the Court En
Banc the question as to whether herein accused- 2) When an accused is
appellant who was convicted, inter alia, of estafa charged with a capital
under paragraph 2(d), Article 315 of the Revised offense or an offense
Penal Code and sentenced therefor to serve twenty- which under the law
two years of reclusion perpetua, with its accessory at the time of its
penalties and liability for indemnification, may be commission and at
allowed to remain on bail during the pendency of the time of the
her appeal from said conviction. application for bail is
punishable
A definitive disposition of this issue, which is of first by reclusion
impression, gains added significance in light of our perpetua and is out
resolution en banc in People vs. Ricardo C. on bail, and after trial
Cortez 1 which, for the guidance of the bench and is convicted by the
bar, laid down policies concerning the effectivity of trial court of a lesser
the bail of the accused and which are reproduced offense than that
hereunder for ready reference: charged in the
complaint or
xxx xxx xxx information, the same
rule set forth in the
1) When an accused is preceding paragraph
charged with an shall be applied;
offense which under
the law existing at the 3) When an accused is
time of its commission charged with a capital
and at the time of the offense or an offense
application for bail is which under the law
punishable by a at the time of its
penalty lower commission and at
than reclusion the time of the
perpetua and is out application for bail as
on bail, and after trial punishable
is convicted by the by reclusion
trial court of the perpetua and is out
offense charged or of on bail, and after trial
a lesser offense than is convicted by the
that charged in the trial court of the
complaint or offense charged. his
information, he may bond shall be
be allowed to remain cancelled and the
 accused shall be the accused shall also
placed in confinement be dismissed under
pending resolution of Section 8, Rule 124 of
his appeal. the Revised Rules of
Court as he shall be to
As to criminal cases covered under have jumped bail.
the third rule above cited, which are
now pending appeal before this In the cases at bar, appellant was charged in the
Court where the accused is still on Regional Trial Court of Manila, Branch 37, in three
provisional liberty, the following cases for violations of Batas Pambansa Blg. 22 2 and
rules are laid down: two cases of estafa. 3 These cases were jointly tried
and a decision thereon was rendered by Judge
1) This Court shall Angelina S. Gutierrez on March 12, 1991. 4
order the bondsman
to surrender the On the three cases for violations of Batas Pambansa
accused, within ten Blg. 22, appellant was convicted and sentenced to a
(10) days from notice, total penalty of two years of imprisonment and to
to the court of origin. pay a total fine of P96,290.00.
The bondsman,
thereupon, shall On the two indictments for estafa, in Criminal Case
inform this Court of No. 86-51209 she was found guilty and sentenced to
the fact of surrender, twenty-two years of reclusion perpetua with its
after which the accessory penalties, to indemnify the complaining
cancellation of the witness in the sum of P80,540.00 and to pay the
bond shall be ordered costs; and in Criminal Case No. 86-51210, she was
by this Court. likewise convicted and imposed an indeterminate
sentence of six years and one day of prision mayor,
2) RTC shall order the as minimum, to fourteen years, eight months and
transmittal of the one day of reclusion temporal, as maximum,
accused to the together with the accessory penalties, as well as to
National Bureau of indemnify the offended party in the sum of
Prisons thru the P15,750.00 and to pay the costs.
Philippine National
Police as the accused Elevated to the Court of Appeals for appellate
shall remain under review, said cases were forwarded by said court to
confinement pending this Court in view of the penalty of reclusion
resolution of his perpetua involved therein. In the meantime, it
appeal. appears that appellant is under provisional liberty
on bail in the aforesaid criminal cases, including
3) If the accused- Criminal Case No. 86-51209, under a corporate
appellant is not surety bond posted by Oriental Assurance
surrendered within Corporation in the amount of P86,000.00. 5 The
the aforesaid period Court notes that said bond was provided pursuant
of ten (10) days, his to the order of the trial court dated May 16,
bond shall be 1991, 6 hence prior to our resolution of October 15,
forfeited and an order 1991 quoted in limine.
of arrest shall be
issued by this Court. As earlier stated, the issue presented now is
The appeal taken by whether, under the considerations in the foregoing
discussion, appellant should be permitted to remain
on bail. A chronological flashback into the
constitutional and statutory changes relevant to this
issue, in juxtaposition with the state of the penal
laws during the periods material thereto, would
accordingly be desirable and instructive.
On October 22, 1975, Presidential Decree No. 818
introduced the following amendment to Article 315
of the Revised Penal Code:
Sec. 1. Any person who shall defraud
another by means of false pretenses
or fraudulent acts as defined in
paragraph 2(d) of Article 315 of the
Revised Penal Code, as amended by
Republic Act No. 4885, shall be
punished by:
1st. The penalty of reclusion
temporal if the amount of the fraud
is over 12,000 pesos but does not
exceed 22,000 pesos, and if such
amount exceeds the latter sum, the
penalty provided in this paragraph
shall be imposed in its maximum
period, adding one year for each
additional 10,000 pesos; but the total
penalty which may be imposed shall
in no case exceed thirty years. In such
cases, and in connection with the
accessory penalties which may be
imposed under the Revised Penal
Code, the penalty shall be
termed reclusion perpetua;
xxx xxx xxx
Preliminarily, it may be asked whether a penalty
higher than reclusion temporal but less than thirty
(30) years may properly be categorized and
considered as embraced within the penalty
of reclusion perpetua, as has been provided in said
amendatory decree, the common praxis being to
attribute to reclusion perpetua and the other
perpetual penalties a duration of thirty (30) years.
We hold that there is legal basis, both in law and
logic, for Presidential Decree No. 818 to declare that
any penalty exceeding twenty (20) years, or the
maximum duration of reclusion temporal, is within
the range of reclusion perpetua.
It will be observed that Article 27 of the
Code 7 provides for the minimum and maximum
ranges of all the penalties in the Code (except bond
to keep the peace which shall be for such period of
time as the court may determine) from arresto
menor to reclusion temporal, the latter being
specifically from twelve years and one day to twenty
years. For reclusion perpetua, however, there is no
specification as to its minimum and maximum
range, as the aforesaid article merely provides that
"(a)ny person sentenced to any of the perpetual
penalties shall be pardoned after undergoing the
penalty for thirty years, unless such person by
reason of his conduct or some other serious cause
shall be considered by the Chief Executive as
unworthy of pardon."
The other applicable reference to reclusion
perpetua is found in Article 70 of the Code which, in
laying down the rule on successive service of
sentences where the culprit has to serve more than
three penalties, provides, that "the maximum
duration of the convict's sentence shall not be more
than three-fold the length of time corresponding to
the most severe of the penalties imposed upon
him," and "(i)n applying the provisions of this rule
the duration of perpetual penalties (pena perpetual)
shall be computed at thirty years."
The imputed duration of thirty (30) years
for reclusion perpetua, therefore, is only to serve as
the basis for determining the convict's eligibility for
pardon or for the application of the three-fold rule
in the service of multiple penalties. Since, however,
in all the graduated scales of penalties in the Code,
as set out in Articles 25, 70 and 71, reclusion
perpetua is the penalty immediately next higher
to reclusion temporal, it follows by necessary
implication that the minimum of reclusion
perpetua is twenty (20) years and one (1) day with a
maximum duration thereafter to last for the rest of
the convict's natural life although, pursuant to
Article 70, it appears that the maximum period for
the service of penalties shall not exceed forty (40)
years. it would be legally absurd and violative of the
scales of penalties in the Code to reckon the
minimum of reclusion perpetua at thirty (30) years
since there would thereby be a resultant lacuna
whenever the penalty exceeds the maximum
twenty (20) years of reclusion temporal but is less
than thirty (30) years.
On the main issue now, it will be recalled that before
the ratification of the present Constitution on
February 2, 1987, the rule on non-bailability of a
criminal offense was singularly in the case of a
capital offense where the evidence of guilt is
strong. 8 Thus, as late as the 1985 Rules on Criminal
Procedure effective on January 1, 1985, bail was a
matter of right, except in a capital offense when the
evidence of guilt thereof is strong 9 and, following
the traditional concept, a capital offense, as the
term is used in said Rules, is an offense which, under
the law existing at the time of its commission and at
the time of the application to be admitted to bail,
may be punished with death. 10 Offenses punishable
with reclusion perpetua, were accordingly bailable.
With the prohibition in the 1987 Constitution
against the imposition of the death penalty, 11 a
correlative provision therein categorically declared
the unavailability of bail to persons charged with
offenses punishable by reclusion perpetua when the
evidence of guilt is strong. 12 Correspondingly, the
aforecited Section 3 of Rule 114 was amended to
provide that no bail shall be granted to those
charged with "an offense which, under the law at
the time of its commission and at the time of the
application for bail, is punishable by reclusion
perpetua, when evidence of guilt is strong." 13 There
can be no pretense that such unequivocal and
explicit provisions in the Constitution and the Rules
of Court would admit of any exception, qualification
or distinction.
With such developmental antecedents, it may not
be said that the framers of the 1987 Constitution, a
number of whom were lawyers and who can
plausibly be credited even by the censorious with at
least a working knowledge of criminal law and
procedure, were unaware of the felonies under the
Revised Penal Code which were already punishable
with the penalty of reclusion perpetua and which,
with the amendments introduced by the present
Constitution, would become non-bailable offenses
as a consequence. Specifically with respect to the
offense of estafa involved in the present case, the
members of the Constitutional Commission could
not have been oblivious of Presidential Decree No,
818, which took effect as early as 1975 and was
given extensive media coverage at the instance or
with the cooperation of the banking community,
providing for the penalty of reclusion
perpetua where bouncing checks of the requisite
amount are involved.
For that matter, as will hereafter be demonstrated,
there are other crimes involving government and
private funds or property which theretofore were
also already punished with reclusion perpetua.
Hence, under the rule of contemporanea
expositio and since the felony of estafa was not
expressly or impliedly excluded from the
aforestated provisions on non-bailability, we see no
reason why an accused charged with estafa
punishable by reclusion perpetua should now be
given the exceptional and favored treatment of
being admitted to bail. The same may be said of any
accused charged with any offense so punished,
whether the penalty of reclusion perpetua is by
direct statutory prescription or is imposed as a
consequence of the interplay of related provisions
of the Code.
It is suggested that since estafa is a crime against
property and supposedly not as "heinous" as crimes
against persons or chastity, such as murder or rape,
it should not be equated with the latter felonies in
justifying the denial of bail to the accused. From the
preceding disquisition, the obvious riposte is that
this is a matter which should properly be addressed
to the legislature. It is not for this Court, by judicial
legislation, to amend the pertinent provisions of the
Revised Penal Code, much less the Constitution. Nor
is it for us to intrude into the policy considerations,
absent blatant abuse of legislative power or
capricious exercise thereof, which impelled the
legislative categorization of an offense as being so
abominable or execrable as to call for a denial of the
right to bail. On this score, we can take judicial
notice that multimillion or large-scale estafa cases
and inveterate or professional swindlers have
inflicted untold damages and misery not only on one
or two but on countless victims in this country.
It will further be observed that Presidential Decree
No. 818 does not apply to all forms of estafa but only
to estafa by means of deceit under paragraph 2(d)
of Article 315, that is, estafa through the use of so-
called bouncing checks. 14The preambular clauses of
said decree duly express the rationale for the
amendment introduced thereby in this wise:
WHEREAS, reports received of late
indicate an upsurge of estafa
(swindling) cases committed by
means of bouncing checks;
WHEREAS, if not checked at once,
these criminal acts would erode the
people's confidence in the use of
negotiable instruments as a medium
of commercial transaction and
consequently result in the
retardation of trade and commerce
and the undermining of the banking
system of the country;
WHEREAS, it is vitally necessary to
arrest and curb the rise in this kind of
estafa cases by increasing the
existing penalties provided therefor;
xxx xxx xxx
Now, as earlier stated, on analogous considerations
in the formulation of punitive policies, the penalty
of reclusion perpetua is imposed in one felony under
the title on crimes committed by public officers and
in three felonies under the title on crimes against
property. These provisions have been in the Revised
Penal Code long before Presidential Decree No. 818
was effected and may have been the bases for the
amendments introduced by the latter.
Thus, in malversation of public funds or property, if
the amount involved exceeds P22,000.00, the
penalty shall be reclusion temporal in its maximum
period to reclusion perpetua. 15
In robbery, when by reason or on the occasion of
which any of the physical injuries penalized in
subdivision 2 of Article 263 is committed (which
includes mere incapacity from the victim's habitual
work for more than ninety days), the penalty
is reclusion temporal. 16 However, if in said robbery
the property taken is mail matter or large cattle, the
offender shall suffer the penalty next higher in
degree, that is, reclusion perpetua. 17
In the crime of theft, if the value of the thing stolen
exceeds P22,000.00, the penalty shall be prision
mayor in its maximum period and one year for each
additional P10,000.00, but the total penalty shall
not exceed twenty years or reclusion
18
temporal. However, if that crime of theft is
attended by any of the qualifying circumstances
which convert the taking into qualified theft, the
penalty next higher by two degrees shall be
imposed, 19 that is, at least reclusion perpetua.
The felony of destructive arson, which includes the
burning of any building where people usually gather
or congregate for a definite purpose is now
punished by reclusion temporal in its maximum
period to death 20regardless of the resultant effects
or amount of damages. The same increased penalty
is imposed on other forms of arson formerly defined
in paragraph l(c) and (d) of Article 321, which have
now been incorporated by Presidential Decree No.
1744 in Article 320 as destructive arson, regardless
of the damages caused or whether or not the
purpose is attained.
From the foregoing discussion, it is evident that the
legislative criteria for the imposition of reclusion
perpetua in said offenses took into account not only
the inherent odious or outrageous nature of the
crime, such as the taking of a life or an assault
against chastity, but also either the moral depravity
or criminal perversity shown by the acts of the
accused, or the necessity for protection of property
in the governmental, financial or economic interests
of the country. The objectives of Presidential Decree
No. 818 are indubitably within the ambit of the
same legislative intendment and the foregoing
justifications for the imposition of higher penalties
and the consequent denial of bail to the malefactor.
ACCORDINGLY, the Court hereby RESOLVES (1) to fish taken from a fishpond or fishery or if property is
ORDER the bondsman, Oriental Assurance taken on the occasion of a calamity, vehicular
Corporation, to surrender accused-appellant accident or civil disturbance.
Cresencia C. Reyes within ten (10) days from notice 20 Art. 320, id., as amended by P.D. No. 1744.
to the Regional Trial Court of Manila, Branch 37, and
to immediately inform this Court of such fact of
surrender; and (2) to REQUIRE said Regional Trial
Court, immediately after such surrender, to order
the transmittal of the accused-appellant to the
Bureau of Corrections through the Philippine
National Police and to forthwith report to this Court
its compliance therewith.

S0 ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla,

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

1 G.R. No. 92560, October 15, 1991.

2 Crim. Cases Nos. 86-51206, 86-51207 and 86-
51208.
3 Crim. Cases Nos. 86-51209 and 86-51210.
4 Rollo, 22-32.
5 Original Record, 304-315.
6 Ibid., 303.
7 This falls under Section One (Duration of Penalties)
of Book One, Title Three, Chapter Three.
8 Art. III, Sec. 1(16), 1935 Constitution; Art. IV, Sec.
18, 1973 Constitution.
9 Sec. 3, Rule 114.
10 Sec. 4, id.
11 Sec. 19(1), Art. III.
12 Sec. 13, id.
13 As amended by Resolution of the Supreme Court
dated July 7, 1988.
14 People vs. Villaraza, et al., 81 SCRA 95 (1978).
15 Art. 217, Revised Penal Code.
16 Art. 294(3), id.
17 Art. 302, last par., id.
18 Art. 309(1), id.
19 Art. 310, id., as amended by B.P. Blg. 71.
Noteworthy, vis-a-vis the justification for the
incremental penalty for estafa by bouncing checks,
is that theft is qualified by the mere fact that it is
committed by a domestic servant, or with grave
abuse of confidence, or if the property stolen is
motor vehicle, mail matter or large cattle or consists
of coconuts taken from the premises of a plantation,
 G.R. No. L-439 August 20, 1946
EDUARDO OCAMPO, Petitioner, vs. JOSE BERNABE,
EMILIO RILLORAZA, and ANGEL GAMBOA, Judges
of People's Court (Fourth Division), Respondents.
MORAN, C.J.:
This is a petition for certiorari filed by Eduardo
Ocampo to set aside an order issued by the Fourth
Division of the People's court denying his
application for bail.
The petitioner was arrested by the Counter
Intelligence Coprs of the Armed Forces of the United
States and confined in Muntinglupa Prisons since
July 30, 1945, and pursuant to Executive Order No.
6555 he was turned over to the Commonwealth of
the Philippines and later on filed with the Peoples
Court his application for bail under Act No. 682. At
the hearing of the application, the special
prosecutor stated that petitioner with having
pointed out Placido Trinidad as a guerilla to the
Japanese and for that reason Placido Trinidad was
shot to death. No evidence, however, was
presented by the special prosecutor and all that he
did at the hearing was to recite the contents of an
affidavit which has no reference to count No. 4, and
to state further that he had 27 more affidavits.
Petitioner made an objection stating that a mere
recital is not a evidence and that evidence cannot be
considered strong which has not been subjected to
the test of cross-examination. He testified in his own
behalf in denying all the charges preferred against
him and stated that said charges are mere intrigues
of his political enemy Marcelo Trinidad. He
presented two affidavits, one of Leoncia Nario and
the other of Eugenio Trinidad, mother and uncle,
respectively, of Placido Trinidad, wherein it is stated
that Placido Trinidad was killed by the Japanese
because of his having attempted to wrest a revolver
from a foreman in charge of a detail at work under
orders of the Japanese and that petitioner had
nothing to do with such killing.
Under all these circumstances, the Fourth division of
the People's Court composed of Judges Jose
Bernabe, Emilio Rilloraza and Angel Gamboa, issued
an order dated February 23, 1946, denying the
application for bail. Hence, this petition for
certiorari, predicated upon the theory that no proof
having been presented by the special prosecutor to
show that the evidence of guilt is strong, the
People's Court committed a grave abuse of
discretion in denying the application for bail.
We have held in Herras Teehankee vs. Director of
Prisons (76 Phil., 756), that all persons shall before
conviction be bailable except when charge is a
capital offense and the evidence of guilt is strong.
the general rule, therefore, is that all persons,
whether charged or not yet charges, are, before
their conviction, entitled to provisional release on
bail, the only exception being where the charge is a
capital offense and the evidence of guilt is found to
be strong. At the hearing of the application for bail,
the burden of showing that the case falls within the
exception is on the prosecution, according to Rule
110, section 7. The determination of whether or not
the evidence of guilt is strong is, as stated in Herras
Teehankee case, a matter of judicial discretion. This
discretion, by the very nature of things, may rightly
be exercise only after the evidence is submitted to
the court at the hearing. Since the discretion is
directed to the weight of evidence cannot properly
be weighed if not duly exhibited or produced before
the court (Ramos vs. Ramos, 45 Phil., 362), it is
obvious that a proper exercise of judicial discretion
requires that the evidence of guilt be submitted to
the court, the petitioner having the right of cross-
examination and to introduce his own evidence in
rebuttal. Mere affidavits or recital of their contents
are not sufficient since they are mere hearsay
evidence, unless the petitioner fails to object
thereto.
And this is the prevailing doctrine in the United
States according to authorities to be quoted later. In
some states of the American union, the burden of
showing that proof is evident or the presumption
great, lies on the prosecution while in others on the
petitioner, but the rule seems to be uniform to the
effect that no matter which side bears the burden of
proof, the evidence of guilt should be adduced
before the court for a proper determination of its
probative force. In American Jurisprudence the
following appears:
. . . The English rule is, however, by no means
uniformly followed in the United States. In some
jurisdictions the case is heard de novo, the solicitor
and prosecutor are notified to attend, and witnesses
are subpoenaed both for the state and for the
defendant and are examined before the court. This
practice seems generally to be followed, and it may
be laid down as abroad principle that where bail is
not a matter of right, the burden is upon the
petitioner to produce facts sufficient to entitle him
to bail at the hearing. He is therefore both required
and permitted to introduce evidence doing to the
merits of the case against him. Ordinarily, the
presumption is with the state, and it is proper to
require the prisoner to introduce evidence in the
first instance, although it imposes upon him the
necessity of producing evidence upon which the
state intends to rely for his conviction on the final
trial. the accused will not, by this procedure, be
denied the opportunity of cross-examining the
people's witnesses. However, in some jurisdictions,
the courts have gone so far as to hold that the duty
is upon the prosecuting attorney, in resisting an
application, to begin the proceedings by the
introduction of evidence showing that the applicant
is not entitled to bail. (6 Am. Jur., section 47, p. 70.).
xxx xxx xxx
The general rule followed in the United States is
more liberal than that of the common law, and the
mere fact that a grand jury has found an indictment
for murder will not generally preclude the court
from inquiry into the facts of the case. On this
inquiry the witnesses for the prosecution may be
called, and the accused is not required to produce
the testimony of any other witnesses. Furthermore,
the accused is entitled to go behind the indictment
and introduce evidence going to the merits of the
case. The inquiry should not be limited to
determining the probable degree of the homicide,
but should include the determination of the
character of the proof or the strength of the
presumption respecting whether or not the
defendant did the killing or was connected with it as
a guilty agent. A case for the allowance of bail after
indictment may also be presented where the public
prosecutor admits that under the evidence
obtainable no conviction of a capital offense can be
had, or where there has been a failure to convict, or
where a verdict of guilty has been reversed by
reason of the insufficiency of the evidence. (6 Am.
Jur., section 50, p. 71.)
In corpus Juris Secundum the rule is summarized as
follows:
Unless the presumption from an indictment for a
capital offense is conclusive against accused which
has been considered in section 34 b(2) (b)the
determination as to whether the proof is evident or
the presumption great must, on an original
application, be determined from the evidence
adduced on the application no matter which side
bears the burden of proof. Where accused under a
capital indictment bears the burden of proof he
should offer the witnesses whose names are
endorsed on the indictment, although he is not
imited to such witnesses.
The court should hear all material and relevant
evidence offered by either party, such as the grand
jury minutes, and should consider the evidence as a
whole. (8 C.J.S., section 46 [b], p. 94.).
See also the following authorities:
Under the 17th section of the Alabama Bill of Rights,
which declares that "all persons shall, before
conviction, be bailable by sufficient securities,
except for capital offenses where the proof is
evident or the presumption great," and under the
Alabama statutes upon the hearing of applications
for bail, either before or after indictment, the court
is not, as according to the practice in England,
confined to the written evidence taken down before
the committing magistrate; but the case is heard de
novo the solicitor and prosecutor are notified to
attend, and witnesses are subpoenaed both for the
state and for the defendant, and examined before
the court, which is to decide the application upon
the evidence produced. Code sections 3721,
3722,3732, 3733, 3745, 3746, 3669, 3673. Ex
parte Bryant, 34 Ala., 270. ( Re Thomas, 20 Okla.,
167; 93 Pac., 980; 39 L. R. A., New Series, pp. 752,
775.).
In capital case, application for bail calls for exercise
of judicial discretion in determining probability of
defendant's guilt which requires submission of
evidence. (Shaw vs. State, 47 S.W. [2d], 92; 164
Tenn., 192; 8 C.J.S., p. 94, fn. 80.).
Applicant for bail under Burns' St. Annot. (1914),
section 2025, seeking to overcome presumption of
truth of indictment, must introduce the evidence of
witnesses as indicated by indictment, and also such
witnesses as state indicates it relies on. (McAdams
vs. State, 147 N.E., 764; 196 Ind., 184; 8 C.J.S., p. 94,
fn. 80.)
When names of state witnesses are placed upon the
indictment the presumption is that all should not be
required to produce the testimony of any other
witnesses on behalf of the state. Where no
witnesses are placed on the indictment, it is
incumbent on the state attorneys, on application for
bail, to furnish the accused with a list of the
witnesses relied on by the state in due time to
secure their presence or testimony; otherwise he
could not know what was the testimony upon which
the state relied. In case no witnesses are placed
upon the indictment and a list is duly furnished by
the prosecuting officer, the accused should produce
the witnesses for the state in connection with his
own, if he had any, in order that the judge may
determine from all the testimony in the case
whether the proof was not evident or the
presumption not great.
xxx xxx xxx
Upon the hearing it is proper to require the prisoner
to begin the evidence, although it imposes upon him
the necessity of producing evidence upon which the
state intended to rely for his conviction on the final
trial. But the accused will not by this procedure be
denied the opportunity of cross-examining the
people's witnesses. ( Ex parte Heffren, 27 Ind., 87.
To the same effect, Rigdon vs. State, 41 Fla., 308; 26
So., 711; ex parteNathan[Fla.]; 50 so., 38." (39 L. R.
A., New Series, pp. 752, 774, 775.).
The evidence for the state, as well as that for the
accused, should be presented (1) by the petitioner
in an application for bail. ( Ex parte Tully [Fla.], 66 S.,
296; Rigdon vs. State, 41 Fla., 308; 26 S., 711; Ex
parte Heffren, 27 Ind., 87. (2) But the petitioner, by
proper procedure, may test the probative force of
the testimony for the state in order to fully present
his case for the purposes of the hearing. Ex
parte Tully, supra; Ex parte Heffren, supra. (6 C.J., p.
984, fn. 50 [a], section 214.).
Where on a motion to admit to bail after the
indictment, the evidence of the witnesses who
testified before the grand jury does not make
a prima facie case against the accused, he is entitled
to bail, and it is an error to refuse bail upon the
statement of the district attorney that he has other
evidence which he will not disclose for fear of
weakening the state's case. (In ex parte Reynald, 37
Texas, 1.)
And this is in conformity with the former rulings of
this Court. In Marcos vs. Cruz (67 Phil., 82), we said:
Se arguye que el Juez recurrido, antes de expedir el
mandamiente de arresto de los acusados, examino
a los dos testigos de cargo que presento el fiscal y
que estas pruebas establecieron asimismo la
presuncion de culpabilidad de los acusados y el
requerimiento adicional de que las pruebas de
culpabilidad deben ser evidentes. No podemos
prestar nuestro asentimiento a esta pretension. No
debe olvidarse que tales pruebas se recibieron en
ausencia de los acusados y estos no tuvieron
oportunidad de verles declarar ni de repreguntarles.
. . . Otras razones que impiden el que tales pruebas
puedan tener en cuenta contra los acusados son;
que el fiscal no las produjo ni ofrecio en la vista de
las peticiones de libertad bajo fianza. . .. En tales
circunstancias era deber del Juez recurrido requerir
al fiscal que presente sus pruebas para demostrar
que el delito imputado era capital, que las pruebas
eran evidentes y que la presuncion de culpabilidad
era fuerte.
In Herras Teehankee vs. Director of Prisons, supra,
we said:
When the first proviso of section 19 of
Commonwealth Act No. 682 and Article III, section
1, paragraph 16, of the Constitution, refer to the
case where the court finds that there is strong
'evidence' of the commission of a capital offense,
they necessarily mean evidence properly adduced
by the parties or any of them before it, in the
manner and from prescribed by the laws and rules
of judicial procedure. . . .
True that in the same case of Herras Teehankee vs.
Director of Prisons, supra, we said that the hearing
of an application for bail should be summary or
otherwise in the discretion of the court. By
"summary hearing" we meant such brief and speedy
method of receiving and considering the evidence of
guilt as is practicable and consistent with the
purpose of the hearing which is merely to determine
the weight of the evidence for purposes of bail. On
such hearing, the court "does not sit to try the
merits or to enter into any nice inquiry as to the
weight that ought to be allowed to the evidence for
or against accused, nor will it speculate on the
outcome of the trial or on what further evidence
may be therein offered and admitted." (8 C. J. S.,
93,94.) The course of the inquiry may be left to the
discretion of the court which may confine itself to
receiving such evidence as has reference to
substantial matters avoiding unnecessary
thoroughness in the examination and cross-
examination of witnesses and reducing to a
reasonable minimum the amount of corroboration
particularly on details that are not essential to the
purpose of the hearing.
Objection has been made long ago to this method of
hearing wherein the regular trial is anticipated
though to a limited extent at least. but the objection
was dismissed as follows:
The second objection is more serious, and, if the
courts possessed entire freedom of action in regard
to the matter, would be very persuasive. The regular
trial is, to a limited extent at least, anticipated.
While the guilt or innocence of the accused is not to
be determined, the quantity and character of the
proofs on this point are, for the special purpose in
hand, necessarily considered. Occasionally much
time is thus consumed, and the court's attention is
correspondingly diverted from other business. But
these objections cannot avail against a positive
constitutional command; if the Constitutional
requires the court to determine for itself whether or
not the proof is evident or presumption great in a
given case, all considerations of expediency or
convenience, however potent they might be at the
common law, must give way. (Re Losasso, 10 L.R.A.
[1890], 847, 850.)
It appearing in the instant case that on the hearing
of the application for bail filed by the petitioner no
proof was offered by the prosecution to show that
the evidence of guilt is strong, the Fourth Division of
the People's Court committed a grave abuse of
discretion in denying the bail applied for.
In view of the foregoing, the order of the fourth
Division of the People's court dated February 23,
1946, denying the application for bail filed by the
petitioner, is hereby set aside, and if appearing that
said order is but a misconception of the procedure
to be followed in this kind of cases, the respondent
court is hereby ordered to hold another hearing in
the manner herein described and within seven days
from notice for the purpose of determining whether
petitioner may be released on bail. Without costs.
Paras, Hilado, Bengzon, Briones, Padilla, and
Tuason, JJ., concur.
Pablo M., conforme con la parte dispositiva.
Separate Opinions
PERFECTO, J., dissenting:
There should not be any disagreement that at the
hearing of the application for bail in capital offenses
"the burden of showing that the case falls within the
exception is on the prosecution"; that the
determination of whether or not the evidence of
guilt is strong is a matter of judicial discretion; that
this discretion may rightly be exercised "only if the
evidence is submitted to the court at the hearing";
that petitioner had the "right of cross-examination
and to introduce his own evidence in rebuttal"; that
contrary to the wrong doctrine set up in Duran vs.
Abad Santos(74 Phil., 410), "mere affidavits or
recital of their contents are not sufficient since they
are mere hearsay evidence," which, in our opinion,
even if not objected to, are inadmissible, because
the omission can not turn a bad evidence into a
good one.
Upon the facts of this case, we fully concur in the
following pronouncement in the majority opinion:
It appearing in the instant case that on the hearing
of the application for bail filed by the petitioner no
proof was offered by the prosecution to show that
the evidence of guilt is strong, the Fourth Division of
the People's court committed a grave abuse of
discretion in denying the bail applied for.
The natural and logical consequence of the above
pronouncement, to any one's mind, will be that the
"grave abuse" of denial should be corrected by a
reverse action, that is, ordering the People's court
to grant the bail applied for, by following the short-
cut procedure adopted by this Court in Herras
Teehankee vs. Director of Prisons (76 Phil., 630), that
of directly granting the bail, a prompt procedure
wholly justified in view of the fact that petitioner
Ocampo has already been deprived of his liberty for
more than one year (since July 30, 1945), and the
delay in granting him bail, notwithstanding that he
is entitled to it, is in great measure, due to the lower
court's "grave abuse."
We can not but be painfully surprised by the fact
that the majority add more delay in the granting of
bail, in giving the prosecution further chance to
correct its error and the lower court additional
opportunity, in an unnecessary procedure, to
commit more errors and grave abuses as those four
ones committed by the same People's Court in the
two Herras Teehankee cases (75 Phil., 634 and 76
Phil., 630), by disposing of the case as follows:
In view of the foregoing, the order of the Fourth
Division of the People's Court dated February 23,
1946, denying the application for bail filed by the
petitioner, is hereby set aside, and it appearing that
said order is but a misconception of the procedure
to be followed in this kind of cases, the respondent
court is hereby ordered to hold another hearing in
the manner herein-described and within seven days
from notice for the purpose of determining whether
the evidence of guilt is strong and, therefore,
whether petitioner may be released on bail.
Without costs.
It was since October 5, 1945, more than ten months
ago, when petitioner filed his original application for
bail. It was denied on October 18. On October 30,
petitioner prayed for its reconsideration and at the
same time asked the People's Court to set the case
for hearing and to require the prosecution to show
that there was strong evidence of petitioner guilt.
On November 10 the motion for reconsideration
was denied, the People's Court stating that it
granted an ex parte hearing to the special
prosecutor. On November 26 petitioner filed a
pleading alleging that, contrary to what was stated
in the lower court's order of November 10, neither
the Solicitor General nor any of the special
prosecutors appeared at the hearing of the motion
for reconsideration in spite of the fact that their
office had been notified beforehand of the hearing.
On December 28 petitioner moved that a day be set
for the hearing of this petition dated October 30, in
which both parties should be present and the
prosecution should adduce evidence, with the
corresponding right of the petitioner to prove that
he was entitled to be released on bail, in accordance
with the ruling in Herras Teehankee vs. Rovira (75
Phil., 634).
The inaction of the People's Court upon the motion
of December 28, compelled petitioner to file
another motion on January 18, 1946, reiterating his
request that hearing be granted. The People's Court
set the petition for hearing, which took place on
February 18, and which the prosecution, instead of
proving the existence of strong evidence of
petitioner's guilt, merely informed the court, over
petitioner's objection, that it was in possession of a
number of affidavits against the petitioner and gave
an idea of the contents thereof.
None of said affidavits was, however, presented. In
order to counteract whatever influence the
statements of the prosecution might bring to bear
upon the court, petitioner took the witness stand
and denied under oath all the charges imputed
against him by the prosecution. To rebut the
reputation that he caused the death of guerrilla,
Placido Trinidad, he presented affidavits of the
mother and uncle of the alleged victim showing that
petitioner had nothing to do with his death, because
the deceased was killed by the Japanese for his
attempt to wrest a revolver from a foreman in
charge of a work under orders of the Japanese. On
February 23, 1946, more than four months after the
original petition for bail was filed, the lower court
denied petitioner's prayer to be bailed.

In April, 1946, the petition was filed before this

Supreme Court. It is regrettable that on so urgent a
matter as the present one, affecting as it does the
personal freedom of a citizen, the Supreme Court
had to need more than four months to render a
decision. The situation is aggravated by the fact
that, delaying further the granting of petitioner's
bail, the People's court is ordered to hold another
hearing.

If in the Herras Teehankee case ( supra), the

Supreme Court, losing patience for the errors, grave
abuses and dillydallying of the People's Court,
ordered directly the granting of bail to Mrs.
Teehankee, the petitioner in the present case has a
better claim to a similar relief, not only because the
prosecution did not present any evidence to show
petitioner's guilt, a situation identical to the one in
Herras Teehankee, but petitioner volunteered
evidence showing, without any contradiction, that
he is innocent of the charges against him. In the
Herras Teehankee case, there was only an absence
of evidence of guilt; whereas in the present case,
there is the presence of evidence of innocence.

In view of all the foregoing, and because the

dispositive part of the majority decision is
irreconcilably inconsistent with the premises of fact
and law in the same decision, we dissent and vote
that petitioner should be released on bail upon the
filing of a bond in the amount of P10,000.
 G.R. No. L-10724, April 21, 1958
THE PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellant, v. MELQUIADES RABA, ET
AL., Defendants. CLEMENTE
TALANTOR, Defendant-Appellee.
DECISION
BAUTISTA ANGELO, J.:
Clemente Talantor and Melquiades Raba were
charged with murder before the Court of First
Instance of Antique and the bail for each was fixed
by the court at P30,000 as recommended by the
provincial fiscal.
On April 26, 1956, after the arraignment of the
accused at which both pleaded not guilty to the
charge, Talantor filed with the court an urgent
motion praying that the amount of the bond fixed
for his provisional liberty be reduced from P30,000
to P14,000 in order to enable him to go on bail.
While the motion setting the hearing thereof in the
morning of the same date contains a notification to
the provincial fiscal, however, the latter was actually
notified at 9:40 o’clock in the morning of the same
day. Despite this lack of due notice, the court
promptly granted the motion for the reduction of
bail one hour later.
On April 28, 1956, the provincial fiscal presented a
motion for reconsideration of the order granting the
reduction of the bail to P14,000 on the ground that
it is irregular because no proper notice of the
hearing of the motion for such reduction was given
to him as required by the rule to enable him to prove
that there exists strong evidence which would
warrant the denial of the motion. The motion was
denied, hence this appeal.
There is merit in this appeal. The Rules of Court
make it a duty of a movant to serve notice of his
motion on all parties concerned at least three days
before the hearing thereof (section 4, Rule 26). This
requirement is more imperative in a criminal case
where a person is accused of a capital offense for in
such a case admission to bail is a matter of
discretion which can only be exercised after the
fiscal has been heard regarding the nature of the
evidence he has in his possession. Thus, it is
provided that "When admission to bail is a matter of
discretion the court must require that reasonable
notice of the hearing of the application for bail be
given to the fiscal" (section 8, Rule 110), and such
notice is necessary because "the burden of showing
that evidence of guilt is strong is on the prosecution"
(section 7, Rule 110). Here Talantor is charged with
a capital offense and while the fiscal fixed a bail of
P30,000 for his provisional liberty, its further
reduction could not be granted without hearing him
because the evidence in his possession may not
warrant it.
It has been held that "The determination of whether
or not the evidence of guilt is strong is a matter of
judicial discretion. This discretion, by the very
nature of things, may rightly be exercised only after
the evidence is submitted to the court at the
hearing. Since the discretion is directed to the
weight of evidence and since evidence cannot
properly be weighed if not duly exhibited or
produced before the court (Ramos v. Ramos, 45
Phil., 362), it is obvious that a proper exercise of
judicial discretion requires that the evidence of guilt
be submitted to the court, the petitioner having the
right of cross-examination and to introduce his own
evidence in rebuttal." (Ocampo v. Bernabe, 77 Phil.,
55, 56; Italics supplied.)
Considering that Talantor did not serve notice of his
motion to reduce bail on the provincial fiscal at least
three days before the hearing thereof and the court
failed to require that a reasonable notice thereof be
given to said fiscal, it is evident that the court acted
improperly in reducing the bail without giving the
fiscal an opportunity to be heard.
We wish however to state that the remedy the fiscal
should have availed of is certiorari and not appeal
considering that the orders herein involved are
interlocutory in nature (Rule 41, Section 2).
The orders of April 26, 1956 reducing the bond of
Talantor to P14,000, as well as that approving the
bail bond as thus reduced, are hereby set aside.
Bengzon, Montemayor, Reyes, A., Labrador,
Concepcion, Reyes, J. B. L., Endencia and Felix, JJ.,
concur.
Paras, C.J., concurs in the result.